978-1285427041 Chapter 2

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CHAPTER 2

INTERNATIONAL LAW AND THE WORLD’S LEGAL SYSTEMS

CASES IN THIS CHAPTER

Ventress v. Japan Airlines

The Paquette Habana

Sosa v. Alvarez-Machain

United States v. Campbell

Liechtenstein v. Guatemala (Nottebohm Case)

Khaki v. Hashim

TEACHING SUMMARY

This chapter addresses the global context of cross-border interactions, be they business

oriented, political, or criminal in character. By citing the many international covenants, treaties,

and uniform rules, a strong case can be made that international law truly does exist, although it

differs from the American notions of law found in state and federal codes and cases. The corpus

of international law consists of treaties, conventions, customs, generally accepted principles

among nations, and learned expositions (such as international tribunals and respected

scholars). The increase in the number and influence of international institutions speaks to the

growing importance of understanding international law which in many ways reflects its European

roots. The chapter also explains the difference between private and public international law, the

former referring to rules regulating affairs of private firms, organizations and individuals and the

latter referring to regulation of conduct between and among states.

CASE QUESTIONS AND ANSWERS

Ventress v. Japan Airlines

1. What was the purpose of article VIII(1) of the FCN treaty? In what way would this give them

greater control of their U.S. operations?

2. What was the basis of the court’s ruling? Does the California whistle blower protection statute

“interfere with the employer’s ability to hire their fellow citizens”?

3. In citing MacNamara v. Korean Airlines, the court refers to the difference between

“citizenship” and “national origin.” What is the difference, and why was that important here?

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Chapter 2: International Law and the World’s Legal Systems

The Paquette Habana

1. Under what conditions is customary international law a part of U.S. domestic law?

2. Which international custom applies to this dispute?

Supplemental Exercise: Have students locate and read the dissent (either in the official reporter

or by using Westlaw):

a) Why would the dissenters have affirmed the seizure under the U.S. Law of Prize?

b) Why were they not persuaded by customary practices under international law?

c) Do you find their assertion regarding the power of the president persuasive?

Sosa v. Alvarez-Machain

1. What were the three specific offenses mentioned by Blackstone that were recognized as

violations of customary international law at the time the ATS was enacted?

2. Is the Court willing to expand the ATS beyond these original three offenses? According

to Justice souter, what types of torts would give rise to jurisdiction under the ATS?

3. Do you feel that this decision grants too much or too little power to the federal courts to

hear tort claims occurring outside the country?

4. What foreign policy implications are involved in a U.S. court hearing a case under the

ATS?

5. In what way did the Supreme Court’s subsequent decision in Kiobel further limit the

application of customary international law?

Answer: It said the first two of the three specific offenses, the safe conduct rules and

infringement of ambassadorial rights, mentioned by Blackstone could be a basis for

applying such law only if they occurred in U.S. territory. If such offenses occurred outside

the territory, the customary international law would not be used.

United States v Campbell

1 If Congress did not state in the statute that it applied outside the U.S., how did the court

arrive at that conclusion.

2. What is meant by the “Bowman Exception?”

Liechtenstein v. Guatemala (Nottebohm Case)

1. May individuals bring an action against a nation at the ICJ?

2. On what basis did Liechtenstein file this action [if only states are to be parties before the

I.C.J.]?

3. Although a nation can determine its own criteria for citizenship, must that be recognized by

other nations?

4. Do you feel that this judgment interfered with Liechtenstein’s sovereignty? Why or why

not?

5. Would this case be considered one of international public or private law?

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Chapter 2: International Law and the World’s Legal Systems

Khaki v. Hashim

1. What is riba? Why is riba not permitted pursuant to the Shar’iah?

2. What would the effect be on Pakistan if the decision were implemented in Islamic

banks?

3. In what other ways have culture and religion influenced modern legal systems?

ANSWERS TO QUESTIONS AND CASE PROBLEMS

1. Answer : Customary international law does not hold a corporation liable for a violation of

2. Answer : The statute applies extraterritorially because the context of the wording shows that

Congress assumed much of the conduct regarding bringing illegal aliens into the U.S. would

3. Answer: Public international law is a body of rules binding nation states in their mutual

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Chapter 2: International Law and the World’s Legal System

4.Answer: A wide variety of problems lend themselves to resolution through the

5. Answer: Typically, such individuals are speaking from a legal egocentric

decisions.

Nonetheless, there is, very clearly, international law. There exist a multitude of

6. Answer: International conventions tend to harmonize national laws by creates

uniform and widely accepted bodies of law. Harmonization benefits business by making

8. Answer: Compliance with corporate codes of codes may be promoted through

9.. Answer: Corporations are accountable to all of their stakeholders, including

10. Answer: Transnational business crimes are a major problems calling for global

11. Answer: Territoriality refers to jurisdiction over all persons, places and property

use.

Chapter 2: International Law and the World’s Legal Systems

Universal jurisdiction has been reserved for piracy, war crimes and crimes against

humanity. Terrorism has been omitted from this list due to difficulties in achieving a uniform

12. Answer: The International Court of Justice hears cases brought by nations against other

nations. Individuals and private corporations are not parties to cases before the court. The court

INTERNET EXERCISE

1. Using “constitution finder” or some other electronic resource, have students locate the

U.S. and U.K. constitutional provisions pertaining to free speech and press. Also ask students

to compare and contrast these provisions with the constitutional provisions (i.e., the First

Amendment counterparts) of other countries and to analyze the facts of the case under these

provisions. Some examples that demonstrate a variety of protections and models include the

constitutions of Germany (the German Basic Law), Romania, and Canada. Would the result be

different? Why?

MANAGERIAL IMPLICATIONS

1. Students may discuss numerous methods by which to demonstrate respect for a foreign

state’s culture, environment, natural resources and local laws. Some examples include affirmation

Chapter 2: International Law and the World’s Legal System

2. The United States may assert jurisdiction using the territoriality and passive personality

principles. South Korea may exercise jurisdiction utilizing the nationality principle. Canada may

3. Students should distinguish between legal and ethical ramifications, particularly in

ETHICAL CONSIDERATIONS

The first scenario primarily implicates the theories of moral relativism and utilitarianism. Moral

relativism is implicated to the extent that one may contend that the sale of lifesaving (but

expired) pharmaceuticals is acceptable given the time and place of the sales. Utilitarianism is

implicated to the extent that the sale of such pharmaceuticals adds to the overall utility of the

community. Ethical conduct is that which is likely to produce the greatest overall good not just

for the decider but for all persons who will be affected by the decision. In this case, the

alternative would be the destruction of the pharmaceuticals. Why not utilize the remaining life of

these products to save lives in the developing world?

The second scenario primarily implicates moral relativism and the related topic of cultural

relativism. The quotation attempts to justify bribery on the basis that it may be acceptable given

the time and place in question. Cultural relativism is defined as the belief that different practices

and accepted behaviors in different cultures should be respected rather than subject to

condemnation. Cultural relativism would serve as an additional ground supporting bribery in

certain circumstances if such practices were the cultural norm in business transactions.

TEACHING SUGGESTION / COOPERATIVE LEARNING ACTIVITY

In light of the U.S.’s belief that there should exist some international legal mechanism for

addressing international crimes (such as crimes against humanity) but its disagreement with the

present ICC draft, have students draft a new statute. This may be done through two

complimentary mechanisms. In one group, students will use the existing statute as a guide and

correct it, so to speak. In another group, students will work without the language of the statute,

drafting clauses to address jurisdiction, specific procedures, parties, checks and balances, and

appeal.

SUPPLEMENTAL ACTIVITY: CASE BRIEF ASSIGNMENT

Trans-Orient Marine Corp. v. Star Trading & Marine, Inc., 731 F.Supp. 619 (S.D.N.Y. 1990).

Have students find, read, and brief Trans-Orient. This case is in the context of a change of

Sudanese government via military coup.

Questions:

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Chapter 2: International Law and the World’s Legal Systems

1. What was the critical international legal issue addressed by the court?

2. What is the difference between a “succession of state” and a “succession of

government”?

3. How does this effect contracts to which the state is a party?

Reid v. Covert, 354 U.S. 1 (1957).

To further investigate the hierarchy and connection between the U.S. Constitution and

international law, have students locate and read Reid v. Covert, 354 U.S. 1 (1957).

In Reid, two civilian wives were accused of killing their husbands, members of the U.S. army.

Defendant Covert killed her husband on a military base in the U.K. and defendant Smith killed

her husband on a base in Japan. Pursuant to Status of Forces (SOF) Agreements between the

U.S. and those countries, the wives were prosecuted by military tribunals. The defendants

claimed that they could not be tried by the military courts. The court agreed, noting that when

the U.S. acts against its citizens abroad, those citizens continue to be protected by the

Constitution and the Bill of Rights.

1. What was the SOF agreement and what was its import in the instant case?

2. What specific constitutional rights were the wives allegedly deprived of?

3. To which portion of the Constitution did the court point in laying out the hierarchy of the

SOF and the Fifth and Sixth Amendments?