446
“International law, or the law that governs between nations, has at times, been
like the common law within states, a twilight existence during which it is hardly
distinguishable from morality or justice, till at length the imprimatur of a court attests its
jural quality.” Justice Cardozo
I. Teacher to Teacher Dialogue
to be casually honored with a tip of the hat. These topics need to be integrated into every aspect
of what we teach. This chapter is designed to help you as teachers identify the basic infrastructure
of international law for further elaboration in later chapters.
I start off this chapter with an opening discussion on the practical difficulties involved in the
incorporates the notion of freedom from external controls and supreme power over one’s own
affairs. Perhaps that might be a starting point to resolve this oxymoronic dilemma. A nation does
need to have ultimate control over its internal affairs, but its national interests and the welfare of
its citizens do not end at its borders. Nations, just like individuals, can only find protection for
is a goal worth striving for by all nations, even at the cost of some of their respective autonomies.
INTERNATIONAL AND WORLD
TRADE LAW
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International and World Trade Law
II. Chapter Objectives
Clause of the U.S. Constitution.
2. Describe a nation’s court jurisdiction over international disputes.
3. Describe the functions and governance of the United Nations.
4. Describe the North American Free Trade Agreement (NAFTA), European Union (EU),
organizations.
5. Describe the World Trade Organization (WTO) and explain how its dispute-resolution
procedure works.
III. Key Question Checklist
Who has the authority to act—the federal government or the states?
What are the sources of international law?
IV. Text Materials
Introduction to International and World Trade Law
The law that governs affairs between nations is called international law. There is no single
legislative source, nor single world court that interprets international law. There are several courts
The United States and Foreign Affairs
Foreign Commerce Clause – The Foreign Commerce Clause vests Congress with the power to
Treaty Clause – The Treaty Clause empowers the president, by and with the advice and consent
of the Senate, to make treaties. A treaty is a formal agreement between two (bilateral) or more
Global Law: United Nations Children’s Fund
United Nations (UN)
The U.N. was created by a multinational treaty with an eye toward maintaining peace and
Chapter 54
General Assembly – The UN is composed of the General Assembly, which is the legislative
body of the UN and is composed of all member nations.
Security Council – The Security Council is composed of 15 member nations, five of which are
permanent members, and ten which serve two-year terms.
Global Law: The International Monetary Fund (IMF)
The IMF is an agency of the UN that helps to promote sound monetary, fiscal, and
World Bank – The World Bank is financed by contributions from developed nations, and
provides money to developing countries in order to fund humanitarian purposes and to relieve
The International Court of Justice – The World Court is the judicial branch of the UN, and is
European Union (EU)
EU Administration – The Council of Ministers is composed of representatives from each
member nation and vote on significant issues and changes to the treaty. The EU commission is
independent of the member nations and has the authority to enact legislation and enforce its
regulations.
North American Free Trade Agreement (NAFTA)
In 1992, NAFTA was signed by the U.S., Mexico, and Canada, creating a massive free-trade
zone, eliminating or reducing most of the tariffs, duties, and quotas among the three countries,
the EU.
International and World Trade Law
Other Regional Organizations
Association of Southeast Asian Nations (ASEAN) – Since 1967, the Association of South East
Asian Nations has operated as a cooperative community.
Dominican Republic-Central America Free Trade Agreement (DR-CAFTA) – The U.S. and
several Central American countries joined together to form CAFTA. Later, the Dominican
Republic joined. This agreement lowered tariffs and reduced trade restrictions amongst member
nations. The U.S. has bilateral trade agreements with several other countries from that same
seamless economic borders.
Other Regional Economic Organizations – There are several regional organizations combining
World Trade Organization (WTO)
and Trade (GATT).
WTO Dispute Resolution – The WTO hears and decides trade disputes between member
nations. Disputes are heard by a three-member panel made up of professional judges from
member nations. Their report is referred to the dispute settlement body of the WTO, which adopts
months.
National Courts and International Dispute Resolution
Most cases involving international law are heard by the courts of individual nations, including
in federal district courts.
Judicial Procedure – Most international contracts will include a choice of forum clause which
designates which nation’s court will have jurisdiction to hear disputes, and a choice law clause
that designates which country’s laws will be applied.
Chapter 54
Case 54.1 Act of State Doctrine: Glen v. Club Mediterranee, S.A.
450 F.3d 1251, 2006 U.S. App. Lexis 13400 (2006), United States Court of Appeals for the
Eleventh District
Facts: Prior to the Communist revolution in Cuba, Elvira de la Vega Glen and her sister, Ana
a joint venture with the Cuban government to develop the property. Club Med constructed and
operated a five-star luxury hotel on the property that the Glens had owned. The Glens sued Club
Med in a U.S. District Court located in the state of Florida. The Glens alleged that the original
expropriation of their property by the Cuban government was illegal and that Club Med had
Decision: Yes. The U.S. Court of Appeals applied the act of state doctrine and affirmed the
judgment of the U.S. District Court that dismissed the Glens’ claim against Club Med. The act of
state doctrine is a judicially-created rule of decision that precludes the courts of this country from
inquiring into the validity of the public acts a recognized foreign sovereign power committed
foreign sovereigns might negatively affect those policies.
Ethics Questions: The act of state doctrine precludes U.S. courts from judging the validity of
acts of foreign governments within their own borders. The Cuban government, in appropriating
the property, acted unethically. Students will argue both sides of this relative to Club Med. Club
The Doctrine of Sovereign Immunity – The doctrine of sovereign immunity establishes that
countries are immune from lawsuits in the courts of other countries.
Exceptions to the FSIA – The U.S. grants immunity to qualified countries, as codified under
International and World Trade Law
International Religious Laws
Global Law: Jewish Law and the Torah
Jewish law is based on the Torah, which prescribes all the rules of religious, political, and legal
life. Problems are determined by Halakhah (rabbinic jurisprudence) and are administered by
rabbi-judges sitting as the Beis Din, or house of judgment.
Global Law: Christian and Canon Law
Canon law consists of laws and regulations that have been adopted by Catholic and other
Christian ecclesiastical authorities that relates to internal laws that govern the church and its
members. The canons of Christian faiths provide rules for believers to follow in living their lives
that govern the conduct of persons.
International Law: Hindu Law—Dharmasastra
Dharmasastra—Hindu law is based on neither civil codes nor court decisions, but on the works of
private scholars that were recorded in law books (smitris/dharmasastra) as the doctrine of proper
V. Key Terms and Concepts
Act of state doctrine—States that judges of one country cannot question the validity of an act
ASEAN countries.
ASEAN-Japan Comprehensive Economic Partnership—This is a free trade agreement
between ASEAN nations and Japan and one that reduces tariffs on goods traded.
ASEAN-Korea Free Trade Area—A free trade pact amongst certain ASEAN nations with
Korea.
and other Christian ecclesiastical authorities that relates to internal laws that govern the
church and its members.
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Honduras, and Nicaragua.
Choice of forum clause—Clause in an international contract that designates which nation’s
court has jurisdiction to hear a case arising out of the contract. Also known as a forum-
selection clause.
Choice of law clause—Clause in an international contract that designates which nation’s laws
will be applied in deciding a dispute.
States.
Convention—A treaty that is sponsored by an international organization.
Council of Minsters—The EU’s Council of Ministers is composed of representatives from
each member country who meet periodically to coordinate efforts to fulfill the objectives of
the treaty.
courts of other countries.
Doha Development Agenda—The Doha Round is the latest round of trade negotiations
among the WTO membership. The Round is also known semi-officially as the Doha
Development Agenda, the fundamental objective of which is to improve the trading prospects
of developing countries.
among member nations.
Euro—A single monetary unit that has been adopted by many countries of the EU that
comprise the eurozone.
European Union—A regional international organization that comprises many countries of
Western and Eastern Europe and was created to promote peace and security as well as
economic, social, and cultural development.
are brought in federal or state courts in the United States; codifies the principle of qualified or
restricted immunity.
Free Trade Area of the Americas—The formation of DR-CAFTA is seen as a stepping stone
toward the creation of the Free Trade Area of the Americas (FTAA), which would be an
America, North America, and South America.
General Agreement on Tariffs and Trade—A multilateral treaty that establishes trade
agreements and limits tariffs and trade restrictions among its member nations.
General Assembly—The legislative body of the United Nations that is composed of all UN
member nations.
International and World Trade Law
assistance to needy countries.
Islamic Law—The Islamic law system is derived from the Qur’an, the Sunnah (decisions and
sayings of the prophet Muhammad), and reasonings by Islamic scholars.
Jewish Law—Jewish law, which has existed for centuries, is a complex legal system based on
the ideology and theology of the Torah.
oil-producing countries of the world.
Secretariat—A staff of persons that administers the day-to–day operations of the UN. It is
headed by the secretary-general.
Secretary-general—The Secretariat administers the day-to-day operations of the UN. It is
headed by the secretary-general, who is elected by the General Assembly.
power…to make treaties, provided two-thirds of the senators present concur.”
United Nations—An international organization created by a multilateral treaty in 1945 to
promote social and economic cooperation among nations and to protect human rights.
United Nations Children’s Fund—An agency of the United Nations whose primary function
hears and decides appeals from decisions of the dispute-settlement body.