978-0132718974 Chapter 1 Solution Manual Part 2

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The Rights of Individuals Under International Law

International law looks upon individuals in two different ways: (1) it ignores them or (2) it treats

them as its subjects. The traditional view is to ignore them. Even though individuals have no

direct rights according to the traditional view, they do have derivative rights.

The traditional international law concept that allows a state to seek compensation from other

states for injuries done to its nationals is known as the law of state responsibility. Although it aims

to protect individuals from virtually any kind of mistreatment by foreign states, the law of state

responsibility gives individuals few rights to litigate in courts; generally, it does not give them the

right to pursue their own claims or the right to protest the actions of their own national state.

International law also regards individuals as having basic human rights and, significantly, the

right to assert claims on their own behalf against states, including the state of their nationality.

Individuals are allowed to sue foreign sovereigns for violations of the law of nations.

Case 1-5: De Sanchez v. Banco Central De Nicaragua

Facts: Mrs. Sanchez, the wife of the then foreign minister of the Somoza government in

Issue: May an individual who is a national of a foreign state sue an agency of that foreign state in

Holding: No.

Law: As long as a state injures only its own nationals, then no other state’s interest is involved,

Explanation: Government expropriation is not so universally abhorred that its prohibition

Order: Decision dismissing the case is affirmed.

Comparison of Municipal Legal Systems

The study, analysis, and comparison of the different municipal law systems is known as

comparative law. Comparative lawyers classify countries into legal families. The two most widely

distributed families are the Romano-Germanic civil law and the Anglo-American common law.

Another family that has become important internationally in recent years is the Islamic law. In

addition, many legal systems are hybrids. Some legal practices are unique to a particular country.

The Romano-Germanic Civil Law System – The oldest and most influential legal family is the

Romano-Germanic legal system, commonly called the civil law. The compilation and codification

of all Roman law under the direction of the Byzantine Emperor Justinian was the most significant

event in the historical development of the civil law. This code, known as the Corpus Juris Civilis,

was compiled between 528 and 534 A.D. It was important because it preserved in written form the

ancient legal system.

Introduction to International and Comparative Law

The medieval Roman Catholic Church also played an important role in preserving the ancient

law. Canon law, the law used in the church’s courts, was based on Roman law.

Students from throughout Europe who traveled to Italy to study returned to their own countries to

establish the new profession of law. They set up new universities and found work both in the

church and as advisors to princes and municipalities. Their common background led to the

creation of a new civil law, one based on the Roman law, canon law, and the huge body of

writings created by the glossators and commentators. This was called the jus commune, or the

common law of Europe.

Lex mercatoria (law merchant), an international body of generally accepted commercial rules that

transcended national boundaries, proved to be more influential than even the civil law.

In the sixteenth and seventeenth centuries, the new study of the jus commune was carried on by

French Humanists and Dutch Naturalists. Along with the development of a theory of law, other

events would eventually lead to the disappearance of the jus commune as the common law of

Europe. The appearance of national states, with national literatures written in national languages,

led to aspirations for systems of national law. In many of the states of continental Europe, legal

nationalism found its embodiment in national codes.

Both the French Civil Code of 1804 and the German Civil Code of 1896 were models for most of

the other contemporary civil codes. The French Civil Code is often referred to as the Code

Napoléon, because of the extensive involvement of Napoléon Bonaparte (1769–1821) in its

writing. It incorporated the principal ideas of the French Revolution, including the right to

possess private property, the freedom to contract, and the autonomy of the patriarchal family.

Because the French Civil Code was written in a remarkably short period of time—at the

insistence of Napoléon—its authors relied heavily on the jus commune, French royal ordinances,

academic writings, and customary law. Unlike the German Civil Code, however, the style and

form of the French Civil Code are straightforward, easy to read, and understandable to everyone

—in many respects, it reminds one of the U.S. Constitution.

The authors of the French Civil Code realized that they could not foresee every possible legal

eventuality, so they set out flexible general rules rather than detailed provisions.

The German Civil Code was enacted almost a century later, partly because Germany first had to

take shape as a nation and partly because of the influence of a group of German scholars known

as Pandectists.

The German Civil Code’s organization and form are extremely precise and technical. Special

terminology was devised. Legal concepts were defined and then used the same way throughout

the entire code. Unlike the French Civil Code, the German Civil Code was meant for the use of

trained experts.

Separate and apart from the movement for codification of civil or private law was the

development of public law. Civil law is, for civilian lawyers, only the law contained in the codes

and its auxiliary statutes (i.e., the law of persons, family law, property law, the law of succession,

the law of obligations, commercial law, and labor law). Opposed to this is public law (i.e.,

constitutional and administrative), which has been treated in a variety of ways in the civil law

countries.

Introduction to International and Comparative Law

Germany established a branch of administrative courts to review the acts of its government

agencies, and France created a Council of State to protect individual rights and supervise the

administrative processes of government. Many civilian lawyers still regard constitutional law as a

form of political science.

In the twentieth century, changes in France and Germany—as well as in the other civil law

countries—had profound effects on civil law. For one, there was a movement away from relying

only on the civil code. Special legislation and judicial interpretations became more influential.

There was also some revision of the codes themselves, especially in Germany.

The Anglo-American Common Law System – In 1066, the Normans conquered England and

William the Conqueror began to centralize the governmental administration of his new kingdom.

The name “common law” is derived from the theory that the king’s courts represented the

common custom of the realm, as opposed to the local customary law practiced in the county and

manorial courts.

Development of the enduring principles of the common law was largely the product of three

courts created by Henry II. The Court of Exchequer settled tax disputes; the Court of Common

Pleas dealt with matters that did not involve a direct interest of the king, such as title to land,

enforcement of promises, and payment of debts; and the Court of King’s Bench handled cases of

direct royal interest, such as the issuance of writs to control unruly public officials. Eventually,

the jurisdiction of the King’s Bench was used to control abuses of power by the king himself,

establishing a fundamental doctrine of the common law: the supremacy of the law.

The common law is based on the customary practice of the courts. The common law must also be

distinguished from the law that evolved out of equity and out of admiralty and from other

specialized jurisdictions. The common law’s basis in court decisions, or precedent, is also the

principal factor distinguishing it from the Romano-Germanic civil law, where the grounds for

deciding cases are found in codes, statutes, and prescribed texts.

In each of the principal nations in which the common law developed—Australia, Canada, India,

Ireland, New Zealand, and the United States—there was a direct political linkage to England.

Common law is a matrix of case law and statutes; it uses the jury system and the doctrine of

supremacy to limit the actions of the government; and it encompasses a complex terminology.

The civil law is encapsulated in convenient codes, and it deals primarily with private law that is

of little threat to the local political system.

The Islamic Law System – The Islamic legal system is known as Shari’a. It is derived from the

following sources, in the order of their importance: (1) the Koran, (2) the Sunna or traditional

teachings and practices of the Prophet Muhammad (570–632 A.D.), (3) the writings of Islamic

scholars who derived rules by analogy from the principles established in the Koran and the

Sunna, and (4) the consensus of the legal community.

In the tenth century A.D., three centuries after the founding of Islam, the legal community decided

that further improvement of the scholars’ analysis of divine law was impossible. They decided at

that time to “close the door of ijtihad (independent reasoning),” freezing the evolution of Islamic

law. As a consequence, Shari’a judges and scholars may only apply the law as it was set down by

the early writers. They may not change, modify, or extend that law.

Introduction to International and Comparative Law

The Shari’a is primarily a moral code, more concerned with ethics than with the promotion of

commerce or international relations. Nonetheless, many principles of the Shari’a are not unlike

the principles found in the civil law and the common law.

II. Chapter Questions

Pacta Sunt Servanda

1. Students’ answers may vary. A possible argument is that Country R is at fault for making no

effort to recompense Harvester for the country’s breach of the contract. The country also may not

Customary International Law

2. Students’ answers may vary. Some may opine that State X may not argue that there is no usus.

Usus requires consistent and recurring action by states. Consistent and recurring practice does not

International Human Rights Law

3. Students’ answers may vary. Some may argue that widow Jones may succeed in her complaint

Recognition of States

4. Students’ answers may vary. Recognition comes about by a unilateral declaration, and it can be

either explicit (express) or implicit (tacit). A state is recognized when an identifiable government,

State Responsibility for Transboundary Pollution

5. Students’ answers may vary. Understanding that the case presents a negative servitude, State A

must take immediate steps to stop dumping sewage into the ocean. Transboundary pollution can

Introduction to International and Comparative Law

Students may argue that the rule does not mention anything about paying for expenses incurred

Boundaries and Treaties

6. Students’ answers may vary.

a. State A’s treaty with State Y will continue to have effect if State A cedes its Western Province to

b. State A’s treaty with State Y will cease to have effect if the Western Province obtains its

c. All the treaties will continue to have effect if States A and B merge and become a new State C.

III. Key Terms

Admiralty—The law and court with jurisdiction over maritime affairs in general.

Arbitration—(From Latin arbitrari: “to give judgment.”) The process by which parties to a

dispute submit their differences to the judgment of an impartial third person or group selected

by mutual consent.

Bilateral treaty—Formal binding agreement between two states.

Charter—A document outlining the principles, functions, and organization of a juridical

entity.

Civil law—(1) The legal system derived from Roman and Germanic practice and set out in

national law codes. (2) As distinguished from public law, the body of law dealing with the

rights of private citizens.

Clean Slate Doctrine—Doctrine that a new state coming into existence through

decolonization is under no obligation to succeed to the treaties of its former colonial power.

Comity—(From Latin comitas: “courteousness.”) The practice or courtesy existing between

states of treating each other with goodwill and civility.

Commentator—One who provides a systematic series of explanations or interpretations.

Common law—The legal system of England and countries that were once English colonies. It

is based primarily on court-made rules or precedent.

Comparative law—The study, analysis, and comparison of the world’s municipal law

systems.

Convention—(From Latin convenire: “to come together.”) Legally binding agreement

between states sponsored by an international organization.

Introduction to International and Comparative Law

Constitutional treaty—A treaty adopted according to the constitutional provisions of the

ratifying state.

Constitutive doctrine—The legal existence of a state or government is dependent on

recognition by other states.

Council of the European Union—Representative of the member state governments and the

co-legislative body (with Parliament) of the EU.

Corpus Juris Civilis—(From Latin: “body of civil law.”) Codification of Roman law

completed about 534 A.D. at the order of Emperor Justinian that selected, arranged, and

condensed the ancient laws.

Custom—A long-established tradition or usage that becomes customary law if it is (1)

consistently and regularly observed and (2) recognized by those states observing it as a

practice that they must obligatorily follow.

Customs union—A group of states that have reduced or eliminated trade barriers among

themselves and have established a common external tariff.

Declaratory doctrine—The legal existence of a state or government happens automatically by

operation of law.

Dependent state—A state that has surrendered its rights to conduct international affairs to

another state. Dependencies of the United States include Puerto Rico, the Virgin Islands,

Guam, and various other islands located in the Pacific Ocean.

Dispositive treaty—A treaty concerned with rights over territory, such as boundaries and

servitudes.

Doctrine of incorporation—Customary international law is part of domestic law to the extent

that it is not inconsistent.

Doctrine of transformation—Customary international law is applicable domestically only

after it is adopted by legislation, court decision, or local usage.

Economic and Social Committee—An EU consultative body made up of special-interest

groups.

Economic consultative association—A group of states that exchanges information,

coordinates economic policy, and promotes trade cooperation.

Equity—(From Latin æquitas: “even” or “fair.”) Being just, impartial, and fair. Justice

applied in circumstances not covered by rules of law.

Estoppel—(From Old French estoupail: “stopper” or “bung.”) Legal rule that one cannot

make an allegation or denial of fact that is contrary to one’s previous actions or words.

Estrada Doctrine—Doctrine that foreign governments will not be explicitly recognized.

European Central Bank (ECB)—The central bank of the EU.

European Commission—The administrative and executive arm of the EU.

European Court of Auditors—The institution responsible for supervising the EU’s budget.

European Court of First Instance—The EU’s trial court with jurisdiction over (1) disputes

brought by private persons against an EU institution and (2) employment disputes between

EU institutions and their employees.

European Court of Justice—The supreme tribunal of the EU.

European Parliament—The co-legislative body (with the Council of the EU) and the main

supervisory institution of the EU.

European Union (EU)—An IGO that has as its goals the elimination of internal frontiers and

the establishment of a political, economic, and monetary union.

Executive agreement—A treaty or international agreement entered into by a state’s executive

without following the state’s constitutionally required ratification procedure. It is not effective

domestically.

Introduction to International and Comparative Law

Free trade area (FTA)—A group of states that have reduced or eliminated trade barriers

among themselves but maintain their individual tariffs in dealing with other states.

French Civil Code—Law code promulgated in 1804 by Napoléon that collected, arranged,

and simplified French law.

General principles—Principles of law common to the world’s legal systems.

German Civil Code—Law code promulgated in 1896 that is based primarily on the Corpus

Juris Civilis and is characterized by its detailed structure and its technical precision.

Glossator—One who makes a textual gloss or glossary (i.e., a brief note or explanation in the

margins or between lines of a text as to the meaning of a difficult or obscure word or

expression).

Hierarchy—A group arranged according to rank or authority.

Human rights—Basic rights intended to protect all people from cruel and inhumane

treatment, threats to their lives, and persecution.

Inchoate—(From Latin inchoare: “to start work on.”) Begun, but not completed; imperfectly

formed or developed. For example, American Samoa is an unincorporated and unorganized

territory of the United States, administered by the Office of Insular Affairs, U.S. Department

of the Interior. Persons born in American Samoa are U.S. nationals but not U.S. citizens.

Independent state—A state that is sovereign; one that operates independently internationally.

Intergovernmental organization (IGO)—A permanent organization set up by two or more

states to carry on activities of common interest.

International law—The body of legal rules and norms that regulates activities carried on

beyond the legal boundaries of a single state.

Jus cogens—A peremptory norm of general international law, recognized by the international

community of states as a norm from which no derogation is permitted.

Jus commune—(From Latin: “the common right.”) Law based on Roman law, canon law, and

the interpretations of glossators and commentators, and common to Europe at the beginning

of the Renaissance.

Legal capacity—Qualification or authority, such as the qualification or authority to carry on

international relations.

Lex mercatoria—(From Latin: “law merchant.”) Common commercial rules and procedures

used throughout Europe in the Renaissance.

Merger Rule—Legal rule that the treaties in effect in a former state remain in effect in its

territory when it becomes part of a new state.

Moving Boundaries Rule—Legal rule that the treaties of a state absorbing new territory

become effective within the absorbed territory.

Multilateral treaty—Treaty between more than two states.

Multinational enterprise (MNE)—Business firm operating branches, subsidiaries, or joint

ventures in two or more states.

Nongovernmental organization (NGO)—An international organization made up of

organizations other than states.

Nonprofit NGO—An international organization that draws its members from among

individuals and domestic organizations (sometimes including local governments, such as

municipalities) who reside in two or more states.

Non-self-executing treaty—A treaty that requires state parties to enact enabling legislation

before it becomes effective domestically.

Opinio juris sive necessitatis—(From Latin: “of the opinion that it is a necessary law.”)

Maxim requiring a state to observe a customary practice only if it is one that international law

requires the state to observe.

Introduction to International and Comparative Law

Organ—(From Greek organon: “tool” or “instrument.”) An agency that carries on specific

functions within a larger organization.

Pandectists—(From Latin pandect: “all receiving.”) Scholars who attempted to prepare a

pandect, or complete and comprehensive treatise or digest of the law.

Persistent objection—Active rejection of a customary practice from its first observance by

other states.

Precedent—(From Latin præcedens: “going before in time.”) An act or instance that may be

used as a model for later similar cases.

Private international law—The part of international law that deals primarily with the rights

and duties of individuals and nongovernmental organizations in their international affairs.

Public international law—The division of international law that deals primarily with the

rights and duties of states and intergovernmental organizations as between themselves.

Public law—Constitutional and administrative law. It is not included in civil law codes.

Recognition—Formal acknowledgment or acceptance by a government of the independence

and sovereignty of a newly created state or of a newly established government in another

state, especially one established by revolution.

Self-executing treaty—A treaty containing a term that says that it is directly effective within

the signatory states upon ratification.

Servitude—(From Latin servitudo: “slavery.”) A right to the use of another’s property.

Shari’a—(From Arabic: “jurisprudence.”) The Islamic legal system. It is based on principles

found in the Koran and related writings.

State—A political entity comprising a territory, a population, a government capable of

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

peoples.

State practice—The conduct and practices of states in their dealings with each other.

State responsibility—Liability of a state for the injuries that it causes to foreign persons.

Subservient—(From Latin subservire: “to serve under.”) Subordinate in capacity or function.

Succession of States—Occurs when (1) two states agree to join and form a single state or (2)

a state dissolves and its constituent states assume the role of independent states. Disputes

between two sovereign states over state succession are not matters for municipal courts to

decide.

Supranational powers—Powers surrendered by member states to an IGO. Such powers are

superior to and preempt the laws and regulations of its member states. In exercising these

powers, the organization may grant rights and privileges to the nationals of its member states,

which those individuals may directly invoke.

Supremacy of the law—Doctrine that all persons, including the sovereign, are subordinate to

the rule of law.

Territorial sovereignty—The right of a government to exclusively exercise its powers within a

particular territory.

Treaty—(From Latin tractare: “to treat.”) Legally binding agreement between two or more

states.

United Nations System—A group of autonomous organizations affiliated with the United

Nations.

Usus—(From Latin: “usage.”) A consistent and recurring practice.