SA_IBL_7e_ch02

Report
CHAPTER 2
International Law and the World’s
Legal Systems
Copyright © 2009 South-Western Legal Studies in Business,
a part of South-Western Cengage Learning.
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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Public vs. Private International Law
• 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?
• Private International Law.
– Deals with the rights and responsibilities of private
individuals or corporations operating in an international
environment.
• See the Paquette Habana (1900) case.
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U.S. Alien Tort Claims Act
• Enacted in 1789, gives federal courts jurisdiction
over civil actions for damages brought by nonUS citizens for injuries occurring overseas.
– Used now for human rights cases brought against US
multinational companies.
– For the scope of the law today, see the Sosa v.
Alvarez-Machain (2004) case.
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The Law of Treaties
• Treaties are binding agreements between two or
more nations.
• A “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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The Law of Treaties
• Vienna Convention of the Law of Treaties: codified in
1980 the customary law regarding treaties.
• Self-Executing and Non-Self-Executing Treaties.
– Self-Executing is one that has a “domestic law effect.”
– Non-Self-Executing requires some Congressional action before
it becomes law.
– See the Renkel v. United States (2006) case.
• What about cyber crime as an international legal
issue? (Budapest Convention on Cybercrime.)
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International Human Rights
and Humanitarian Law
• International Humanitarian Law.
– Example: Geneva convention.
• International Human Rights Law.
– Most recent 2003 Protocol to Prevent, Suppress, and
Punish Trafficking in Persons, Especially Women and
Children (UN).
– What about the 2007 Convention on the Rights of the
Child?
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International Criminal Law
• International Criminal Court in the Hague, the
Netherlands.
– Only can hear cases in a crime is committed in, or
which the defendant is a national of, a country that has
ratified the treaty.
• Jurisdiction of ICC.
– ICC has authority to hear three types of cases:
genocide, crimes against humanity, and war crimes.
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Principles of International
Criminal Jurisdiction
• Extraterritorial Reach of Domestic Law.
– What about “transnational” crimes?
– How do these factor into jurisdiction:
•
•
•
•
•
Territoriality.
Nationality.
Protective Principle.
Passive Personality.
Universality.
• Jurisdiction Over International Terrorism. See the case
of United States v. Ramsey Yousef (2003).
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Mutual Legal Assistance
and Extradition
• Mutual legal assistance treaties are agreements
for law enforcement cooperation.
– The U.S. has over 50 MLA’s in force.
• Extradition: one country surrenders a person to
the courts of another to stand trial in a criminal
case.
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Concepts of Public International Law
• Comity: willingness of one court or government to
respect the rules and laws of another.
– International comity is a judicial doctrine.
– The Charming Betsy concept.
• Sovereign Immunity: supreme and absolute power that
governs an independent state/nation.
– Protects nations, unless it is a commercial enterprise.
• Act of State: principle of domestic law that prohibits the
courts of one country from inquiring into the validity of
another country’s law(s).
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Role of U.N. in International Law
• What is the impact of the veto power?
• What problems do you see with this structure?
• What role did the UN Security Council play
during the Cold War? Gulf War I? Bosnia?
Afghanistan? Iraq?
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Role of U.N. in 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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U.N.: 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.
– See the Liechtenstein v. Guatemala (1955) case.
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U.N.: International Court of Justice
• The Court hears cases brought by nations
against nations.
• Enforcement is primarily through “world opinion”,
diplomatic pressure, and good faith of countries.
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U.N. Agencies Affecting
International Law
• International Labour Organization.
– Important: international labor standards
(recommendations) for basic worker rights.
•
•
•
•
Commission on International Trade Law.
Conference on Trade and Development.
World Intellectual Property Organization.
Office on Drugs and Crime.
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Ethics, Social Responsibility, and
Corporate Codes of Conduct
• Corporate Social Responsibility in Developing
Countries: A Tale of Two Worlds.
– Should businesses be concerned about human rights?
– What is the purpose of Codes of Conduct?
– Do you think they are effective?
– How should we define international ethics?
– What about imposing our “first world” standards on the
third world?
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Ethics, Social Responsibility, and
Corporate Codes of Conduct
• 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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Ethics, Social Responsibility, and
Corporate Codes of Conduct
• 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.
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Corporate Codes of Conduct
• OECD.
• UN Global Compact.
• Levi Strauss & Co. Global Sourcing and
Operating Guidelines.
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Comparative Law: Differences in
National Laws and Legal Systems
• Modern Japan: Example of Legal Change.
• Civil Law Systems vs. Common Law systems?
– Revival of Justinian Code.
– Origins of Common Law (England, U.S., Canada, Australia).
• Islamic Law.
– Saudi Arabian legal system.
– Pakistani legal system.
– See the M.Aslam Khaki v. Syed Mohammed Hashim (2000) case.
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