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INTRODUCTION TO INTERNATIONAL AND COMPARATIVE LAW

I. Text Materials

What is International Law?

The term “international law” applies to any conduct outside the boundaries of states, whether of a

public or a private nature. International law deals with three kinds of international relationships:

(1) those between states and states, (2) those between states and persons, and (3) those between

persons and persons. The law of nations resolved issues between two or more states, and the legal

relationships between and among states is called public international law. The phrase “private

international law” is applied to the laws governing conduct between people (and corporations)

from different states.

International law is understood to be more than just good manners or mutual respect between or

among sovereign nation-states. Comity, which is the practice between states of treating each other

with goodwill and civility, is not law because states do not regard it as something they are

required to respect.

Case 1-1: Ignacio Sequihua v. Texaco Inc. et al.

Facts: Plaintiffs, Ecuador residents, filed suit in Texas over alleged environmental damage in

Issue: Should the court decline to exercise jurisdiction based on the doctrine of comity of

nations?

Holding: Yes.

Law: Section 403(3) of the Restatement (Third) of the Foreign Relations Law of the United

Explanation: The alleged activities and harm occurred in Ecuador; plaintiffs all reside in

Order: The case is dismissed under the doctrine of comity of nations.

If a business incorporated in one state operates a manufacturing facility in another state and

violates the law of the other state, the other state will have the well-recognized power under

customary international law to hear and decide a case against the foreign defendant. This is

known as a state’s territorial basis for taking jurisdiction over a case involving foreign actors.

If U.S. companies do certain acts in other states, they may still be held accountable in U.S. courts

under the principle of nationality jurisdiction. If foreign companies act in ways that directly affect

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a state other than their own, they may be held accountable by the other state, under the principle

of objective territoriality jurisdiction.

The Making of International Law

Within states, law is made by legislatures, courts, and other agencies of government. However, at

the international level, no formal lawmaking machinery exists.

Under Positivist principles, international law comes into effect only when states consent to it. The

general consent of the international community can be found in state practice, that is, in the

conduct and practices of states in their dealings with each other. Statements or evidence of

general consent can be found in the decisions of the International Court of Justice (ICJ), in

resolutions passed by the General Assembly of the United Nations, in lawmaking multilateral

treaties, and in the conclusions of international conferences. When a provision is repeated over

and over in bilateral treaties, courts and law writers will regard the provision as having the

general consent of the international community.

Sources of International Law

The sources of international law are what courts and other international tribunals rely on to

determine the content of international law. Article 38(1) of the Statute of the ICJ lists the sources

that the court is permitted to use. This listing implies a hierarchy, or order, in which these sources

are to be relied on.

Treaties and Conventions – Treaties are legally binding agreements between two or more states.

Conventions are legally binding agreements between states sponsored by international

organizations. Both are binding upon states because of a shared sense of commitment and

because one state fears that if it does not respect its promises, other states will not respect their

promises. Most of the customary rules that once governed treaties are contained in the Vienna

Convention on the Law of Treaties, which came into force in 1980.

Custom – Some rules have been around for such a long time or are so generally accepted that

they are described as customary law. International customary law is constantly changing.

To show that a customary practice has become customary law, two elements must be established

—one behavioral and one psychological. The first—called usus in Latin—requires consistent and

recurring action (or lack of action if the custom is one of noninvolvement) by states. The second

element in showing that a customary practice has become law is the requirement that states

observing the custom must regard it as binding. This is often referred to by the Latin phrase

opinio juris sive necessitatis.

Even if the international community follows a practice and recognizes it as binding customary

law, under some circumstances the rule will not apply to a particular state. This happens when a

state persistently objects to a practice during its formative stages and thus never becomes a party

to it. This can also happen after a customary rule has become generally accepted, if a state is

allowed by the international community to deviate from the general practice.

General Principles and Jus Cogens – When courts are required to decide international disputes,

they frequently rely on the general principles of law that are common to the legal systems of the

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world. As a body of higher law for the international community, jus cogens, in Latin, means

“higher law.” Jus cogens has been spoken of as having its origin in concepts of natural law. At the

same time, however, the contractual, consensual emphasis for international law is clearly seen in

Article 38(1) of the Statute of the ICJ.

The Scope of International law in Actual Practice

The Practice in International Tribunals – International tribunals generally regard municipal

law as subservient to international law. International tribunals regard states as having a general

obligation to bring their municipal law into compliance with international norms. Given the

nature of sovereignty and nationalism, however, it must be admitted that municipal courts may

chafe at the notion that there is a law that is higher than the sovereign state’s own law.

The Practice in Municipal Courts – The fact of knowing whether the international law is based

on customary practice or is contained in a treaty determines if the law has been received into the

local jurisprudence.

In most countries, customary international law is received in accordance with the doctrine of

incorporation. A minority of courts apply the doctrine of transformation.

The reception rules found in treaties depend on two factors: the nature of the treaty and the

constitutional structure of the ratifying state. A self-executing treaty is one that has a provision

stating that the treaty will apply to the parties without their having to adopt any domestic enabling

legislation; a non-self-executing treaty has no such provision.

Any state’s constitution may grant the responsibility for entering into treaties to one or more of its

branches. In many countries, responsibility for adopting treaties is shared by the executive and

legislative branches. In the United States, constitutional treaties are made according to the

Constitution’s provisions and executive agreements are agreements made solely by the president.

Case 1-2: Sei Fujii v. State of California

Facts: A California law made land purchased by an alien Japanese, who was ineligible for

Issues: (1) Does California’s alien land law violate the UN Charter? (2) If it does, is the UN

Holding: The law violates the UN Charter and the U.S. Constitution. The UN Charter is not

Laws: (1) At the time, there was no U.S.-Japan treaty giving Japanese the right to own land in the

Explanation: The UN Charter provisions on human rights set out goals and aspirations, not

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Order: The land does not escheat to California.

International Persons

The personalities of international law are states and their subdivisions, international

organizations, businesses, and individuals.

States – States are political entities that have a territory, a population, a government capable of

entering into international relations, and a government capable of controlling its territory and

peoples.

Independent states are free from the political control of other states and free to enter into

agreements with other international persons. Dependent states have formally surrendered some

aspect of their political and governmental functions to another state. Some states that have

achieved independence, and recognition by other states in the international community, may lose

some control of substantial parts of its populace or parts of its territory. These are referred to as

the inchoate states.

For a state to exist in the international community, it must be recognized by other states.

Recognition comes about by a unilateral declaration, and it can be either explicit (express) or

implicit (tacit). Once given, it implies that the recognized state or government is entitled to the

rights and privileges granted by international law.

A state is recognized when an identifiable government, people, and territory first come into

existence. If the government later changes, it may not be recognized as legitimate even though

recognition of the state continues.

Two theories serve as guidelines for when a government should be recognized. The declaratory

doctrine holds that the legal existence of a government happens automatically by operation of law

whenever a government is capable of controlling a territory and its people. The constitutive

doctrine states that a government does not truly come into existence until such time as it is

recognized by other states and participates in the international arena.

In 1931, Mexico’s Foreign Relations Secretary Genaro Estrada developed another important facet

of nonintervention, eventually labeled the Estrada Doctrine. His objective was for Mexico to

remain neutral in foreign controversies by rejecting the usual practice of states, namely

“recognizing” foreign governments.

Territorial Sovereignty – Sovereignty is the right to exercise the functions of a state within a

territory. This right, however, may not be absolute. Other states may obtain servitudes, either by

treaty or practice, to a limited use of certain territory.

Negative Servitudes: Air and Water Pollution – Negative servitudes prevent one state from

doing something within its territory that causes injury to a second state. Transboundary pollution

can also involve water pollution. Under the Helsinki rules, only material damage can be the basis

of a state’s liability in a case wherein activity lawful per se brings about the pollution of the

waters of an international river basin.

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Case 1-3: The Trail Smelter Arbitration

Facts: A Canadian lead and zinc smelter at Trail, British Columbia, was polluting the waters of

Issue: Can Canada be enjoined from causing harm to a U.S. river?

Holding: Canada may be enjoined from polluting U.S. rivers.

Law: International law establishes that “A state owes at all times a duty to protect other states

Order: Canada must undertake to stop the pollution caused by the smelter at Trail, British

Columbia.

To have territorial sovereignty, a state must first acquire territory. This is done either by: (1) the

occupation of land not claimed by another sovereign, (2) the voluntary transfer of territory from

one sovereign to another, and (3) the conquest and continued occupation of the territory of

another sovereign. Once territory is acquired, a state’s title is affirmed either by the formal

recognition of other states or by a process of estoppel. Estoppel arises when a state fails to speak

up and object to another’s exercise of sovereignty when it would be reasonable to do so.

Changes in Territorial Sovereignty: When there is a change in sovereignty over territory, several

legal consequences arise. As to treaty rights and obligations, successor states must observe

treaties that implement general rules of international law, and they are bound by dispositive

treaties—that is, treaties concerned with rights over territory, such as boundaries and servitudes.

The obligation of a successor state to observe other treaty commitments depends on whether it

acquires a territory by a merger, partial absorption, or complete absorption or whether a seceding

territory attains its independence through decolonization or dissolution. The Merger Rule

presumes that when two states merge to form a new state, the preexisting treaties remain in force

in the territories where they previously applied. There are two exceptions to this rule. First, the

new successor state and other states that are parties to a treaty with one of the predecessor states

can agree to either terminate the treaty or extend it to the whole territory of the new state. Second,

a treaty will terminate if its object and purpose can no longer be accomplished or if the conditions

necessary to accomplish its object and purpose have radically changed.

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If territory from one state shifts to another, the law of state succession applies the Moving

Boundaries Rule, which holds that the treaties of the absorbing state displace the treaties of the

receding state in the territory where sovereignty has changed.

When a new state comes into being through decolonization, its obligation to observe the treaties

made by its colonial parent state are determined by the Clean Slate Doctrine.

According to Article 34 of the Vienna Convention on the Succession of States in Respect of

Treaties, when two states come into existence following the disintegration of a predecessor, both

are bound by the predecessor’s treaties to the extent that they are applicable within each of their

territories.

Usually, the nationals of a territory that is acquired by a successor state will keep the nationality

of the predecessor state unless a different result is agreed to in a treaty of cession or by municipal

legislation.

Public property located within a territory becomes the property of the successor state, while

property located in a third state belongs to whichever government the third state recognizes. The

private property rights of individuals do not lapse because of a change in government. A

successor state is bound by the private contractual obligations of its predecessors. A successor

that acquires part or all of a territory is proportionately responsible for that territory’s national

debt.

International Organizations – Public or intergovernmental organizations (IGOs) are permanent

organizations set up by two or more states to carry on activities of common interest. An IGO is

created much in the fashion of a corporation. Its aims and objectives, internal structure, resources,

and express powers are set out in a constituent instrument, or charter, which is drafted and

adopted by the organization’s member states.

For an IGO to have the legal capacity to deal with other international persons—including the

capacity to carry on diplomatic relations with a state or to sue or be sued in an international or

municipal court—it must be recognized. As for establishing the legal capacity of an IGO vis-à-vis

its nonmember states, recognition is also required. In some states, an IGO is essentially seen as an

agency of its members and recognition of the IGO will be implied if its member states are

recognized. In other countries, recognition requires specific certification from the government.

The United Nations

The most important IGO is the United Nations. Its goals are the maintenance of peace and

security in the world, the promotion of economic and social cooperation, and the protection of

human rights. The organs of the United Nations are the General Assembly, the Security Council,

the Secretariat, the International Court of Justice, the Trusteeship Council, and the Economic and

Social Council.

The General Assembly is the main deliberative organ of the UN. Its function is to discuss and

vote on any question or matter within the scope of the charter.

The Security Council is made up of representatives of 15 member states, 5 of which are

permanent member states. Decisions on procedural matters are made by an affirmative vote of at

least 9 of the 15 members. Decisions on substantive matters require nine votes, including the

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concurring votes of all five permanent members. This is the rule of “great Power unanimity,”

often referred to as the “veto” power.

The Secretariat is the administrative arm of the United Nations, responsible for making reports

and recommendations to the General Assembly and the Security Council.

The International Court of Justice is the United Nations’ principal judicial body.

The Trusteeship Council, which no longer has a function, was set up at the end of World War II to

supervise the world’s non-self-governing territories.

The Economic and Social Council, which comprises 54 member states elected by the General

Assembly, is responsible for promoting economic, social, health, cultural, and educational

progress as well as respect for human rights.

The United Nations System is the name given to various autonomous agencies concerned with a

wide range of economic and social problems that have entered into agreements with the United

Nations to become United Nations specialized agencies. The World Trade Organization (WTO)

and the International Atomic Energy Agency (IAEA), although not specialized agencies, have

entered into similar relationships with the United Nations.

A very large number of companies collaborate to some degree or another with the United Nations.

The UN has sponsored a Global Compact for businesses to join in support of the Millennium

Development Goals.

The European Union

The European Union (EU), with 27 member states, covers a large part of the continent of Europe.

The EU already has a population of over half a billion, the largest population in the world after

China and India. The founding states created the EU in order to integrate their economies and

political institutions.

Supranational Powers: EU law within its scope of applicability is superior to the laws of the

member states. This supremacy principle has two consequences: (1) the member states are

required to bring their internal laws into compliance with EU law and (2) EU law is directly

effective within the member states.

Case 1-4: Commission of the European Communities v. Federal Republic of Germany

Facts: Commission of the European Communities brought suit for a declaration that Germany’s

Issue: Do any of the justifications advanced by Germany allow the Meat Regulation to be upheld

as a valid restraint on trade?

Holding: No.

Law: Import restrictions to protect human life and health are allowed “if that objective cannot be

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Explanation: Germany’s explanations for the Meat Regulation are rejected as not complying

Order: The declaration is made that Germany failed to fulfill its EEC Treaty obligations under

The Institutions of the European Union – The main institutions of the EU are (1) the Council

of the European Union and the European Council, (2) the European Parliament, and (3) the

European Commission.

The Council of the European Union and the European Council

Council of the European Union: The Council of the European Union is the main decision-making

body of the EU. Its role is to (1) adopt legislation in conjunction with the Parliament, (2) adopt an

annual budget, also in conjunction with Parliament, (3) adopt international agreements, and (4)

coordinate the economic policies of the member states.

European Council: The European Council consists of the heads of state of the member states,

along with its own president and the president of the European Commission (nonvoting). The

European Council focuses on establishing general policies and goals for the EU.

European Commission

The European Commission is the EU’s executive branch, but also has some legislative functions.

It drafts legislation for submission to the Council and the Parliament, and once the legislation is

adopted it is responsible for its implementation. Commission decisions are made collegially, even

though each commissioner is given responsibility for specific activities.

The European Parliament

At first only a deliberative body, the Parliament now has three main roles: (1) it has oversight

authority over all EU institutions, (2) it shares legislative power with the Council of the EU, and

(3) it determines the EU’s annual budget in conjunction with the Council of the EU.

For certain kinds of legislation, Parliament only has a veto right: it may not amend or modify a

commission proposal. This power, known as assent, applies to proposals for the accession of new

members, to the adoption of certain international agreements, and to certain rules relating to the

European Central Bank.

European Court of Justice: Eight advocates-general assist the 27 judges of the Court of Justice in

carrying out their duties. The Court will sit as a full court, in a Grand Chamber of 13 judges or in

Chambers of three or five judges. The Court also sits in Grand Chamber when a member state or

an institution that is a party to the proceedings so requests, and in particularly complex or

important cases.

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The full Court will sit in plenary sessions for contentious cases. It hears four kinds of contentious

cases: (1) appeals from the Court of First Instance; (2) complaints brought by the commission or

by one member state against another member state for failure of the latter to meet its obligations

under EU law; (3) complaints brought by a member state against an EU institution or its servants

for failing to act or for injuries they may have caused; and (4) actions brought by a member state,

the council, the commission, or Parliament seeking the annulment of an EU legal measure.

European Economic and Social Committee: This consultative body is an institutionalized lobby.

Its 222 members represent a wide range of special-interest groups, including employers, trade

unions, consumers, farmers, and so on.

European Court of First Instance: It is the EU’s trial court for cases brought by member states

against the European Commission, cases seeking compensation for damage caused by the

European Community institutions or their staff, cases relating to community trademarks, cases

where individuals challenge legislation or actions taken by the EU institutions or challenge an

institution’s failure to act, and cases deciding employment disputes between EU institutions and

their employees.

European Central Bank: The European Central Bank (ECB) is responsible for carrying out the

EU’s monetary policy. The ECB’s decision-making bodies are a governing council and an

executive board.

European Court of Auditors: It supervises the EU budget. The Court of Auditors has wide-ranging

powers to examine the legality and regularity of EU receipts and expenditures and to ensure the

sound financial management of the budget.

Other IGOs

General IGOs: Three prominent regional general IGOs are devoted to political cooperation,

security, and the promotion of economic, social, and cultural development. Each limits

membership to states from its region. The Council of Europe has stressed legal, social, and

cultural matters; the Organization of American States (OAS) has emphasized issues of peace and

security; and the newly established African Union (AU) is concentrating on political cooperation.

In addition to these three regional general IGOs, there are three nonregional general IGOs: the

Commonwealth of Nations, the Arab League, and the Commonwealth of Independent States.

Each of these organizations encourages cooperation among its members but, unlike the Council

of Europe or the OAS, which perform many service functions, they are primarily forum

organizations.

Specialized IGOs: There is a whole range of specialized IGOs that deal with a wide variety of

issues of mutual interest to their members. Examples are the European Space Agency, the

International Coffee Organization, the International Criminal Police Organization (INTERPOL),

and the International Institute for the Unification of Private Law (UNIDROIT).

One important group of specialized IGOs promotes economic cooperation and development.

Customs unions are intended to eliminate trade barriers between their members and to establish

common external tariffs. Examples include the EU.

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Free Trade Areas (FTAs) are set up to eliminate trade barriers between member states without

establishing a common external tariff. Examples include the Association of Southeast Asian

Nations Free Trade Area (ASEAN-FTA), the Central European Free Trade Area (CEFTA), the

European Free Trade Association (EFTA), the Southern Cone Common Market (MERCOSUR),

and the North American Free Trade Agreement (NAFTA).

The functions of an economic consultative association are to gather and exchange statistics and

information, to coordinate the economic policies of member states, and to promote mutual trade

cooperation. Examples are the Organization for Economic Cooperation and Development

(OECD), the Colombo Plan for Cooperative Economic and Social Development in Asia and the

Pacific (Colombo Plan), the Group of 77 (G-77), and the Organization of Petroleum Exporting

Countries (OPEC).

Nongovernmental Organizations: Nonprofit nongovernmental organizations (NGOs) serve as

coordinating agencies for private national groups in international affairs. Examples of nonprofit

NGOs are the International Air Transport Association, the International Bar Association, Amnesty

International, the International Committee of the Red Cross, Greenpeace, and Transparency

International.

For-profit NGOs, also known as transnational corporations or multinational enterprises (MNEs),

are businesses operating branches, subsidiaries, or joint ventures in two or more countries. They

may invest in other businesses abroad; they may establish physical plants with management,

labor, and financing overseas; they may have a single central headquarters; or they may be

loosely coordinated through contractual agreements. The MNEs have acquired the authority to

enter into international agreements with states and to sue states in at least one international

tribunal.