International Law and Organizations

1. International Law and Organizations Chapter 2 © 2002 West /Thomson Learning

2. What is International Law? • A rule… that has been accepted as such by the international community in the form of . . . • customary law… • … international agreement… • …general principles common to the major legal systems… Restatement of the Law 3rd

3. Public International Law • Deals with relationships between countries and applies “norms regarded as binding on all members of the international community” • Example: Vienna Convention on the Law of Treaties

4. Public International Law • Pacta sunt servanda: “every treaty in force is binding upon the parties to it and must be performed in good faith.” • Ius cogens: “preemptory norm of international law” (example: proscriptions against torture and genocide)

5. Impact of treaties on business? • Treaties involve public law but can apply to private transactions • Tax treaties • Law of the Sea convention • Convention for the International Sale of Goods(CISG)

6. International Court of Justice • Known as the World Court • 15 judges serving 9 year term • UN General Assembly and Security Council elect • Based in The Hague, Netherlands • Only states can be parties and state must have accepted the court’s jurisdiction • Hears cases brought under UN Charter or treaties, or questions of international law • Case Examples: • Liechtenstein v. Guatemala • Nicaragua v. United States

7. United Nations in Public International Law • General Assembly (1 country, 1 vote) • Security Council (15 members) • 5 permanent members: China, France, Russia, U.K. and the U.S. • 10 non permanent members elected every 2 years • Permanent members have a veto over non-procedural issues

8. International Criminal Law • International Criminal Court – 1998 Rome Statute • 108 signatories – not the U.S. • Hears 3 categories of crimes • Genocide • Crimes against humanity • War crimes • Cases must be referred by national govt. or UN Security Council

9. International Criminal Law • Principles of International Criminal Jurisdiction • Territoriality • Subjective Territorial Jurisdiction • Objective Territorial Jurisdiction • Nationality • The Protective Principle • Passive Personality • Universality • Case Concerning Arrest Warrant of 11 April 2000 • Belgian arrest warrant conflicts with immunity of foreign ministers • Court refuses to recognize universal jurisdiction in absentia

10. Private International Law • Conflict of laws • Central role of different national legal systems • Civil law & Common Law • Socialist & Islamic law • Comparative law

11. Public and Private International Law • Convention for the Sale of Goods (CISG) • A convention or treaty that affects private transactions

12. The Role of International Organizations • International Monetary Fund • World Bank • GATT and WTO • OECD

13. The Role of Codes of Conduct • Examples from NGO (non governmental organizations)- OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions • World Diamond Congress – agt. to limit trade in “blood diamonds” • Governmental examples - U.S. Model business Principles

14. The Role of Ethics • How to define what is ethical? • The problem of “first world standards in the third world” • Business attempts to address • Codes of Conduct

15. Human Rights, Ethics and Business Practices • Increasingly complex • Do we agree on “Universal Human Rights, or “animal rights?” • History: business role in change in South Africa? • Do we need more conventions? Likelihood of agreement? • What should the role of business be in this debate?

16. Cases: Chapter 2 • The Paquette Habana • Sosa v. Alvarez-Machain • Renkel v. United States • Case Concerning Arrest Warrant of 11 April 2000 • Liechtenstein v. Guatemala • M. Aslam Khaki v. Syed Mohammad Hashim

17. Paquette Habana • Facts: Coastal fishing boats seized by U.S. as prizes of war • Issue: Absent a treaty, does customary international law exempt fish vessels from capture as prizes of war? • Decision: Yes, the Court took judicial notice of customary international law and concluded peaceful fisherman are exempt from capture. • Note the Court’s review of historical precedent

18. Sosa v. Alvarez - Machain • Facts: A was kidnapped in Mexico, sues S under Alien Tort Claims Act [ACTA] • Issue: Does ATCA create cause of action for torts in violation of international law? • Decision: No. ATCA only confers jurisdiction on US courts to hear certain cases • Reasons: At time of passage of ATCA, common law recognized torts in violation of int. law • Three specific offenses recognized • Violation of safe conducts • Infringements of rights of ambassadors • Piracy • A must show claim based on violation of similarly specifically defined norm of international law

19. Renkelv.United States • Facts: R sued US alleging inadequate medical care in military prison violated the Convention Against Torture • Issue: Is Convention Against Torture a self-executing treaty? • Decision: No, it is not self-executing, so doesn’t create cause of action • Reasons: Look to treaty as a whole – does it evidence intent to be self-executing? • US Senate, when consenting to Convention, declared Arts. 1 – 16 not self-executing • So doesn’t create private right of action • R must base cause of action under some domestic law • No legal authority for action for torture in US • R hasn’t shown right of action for violation of peremptory norm of international law

20. Case Concerning Arrest Warrant of 11 April 2000 • Facts: Belgian law gives courts jurisdiction over genocide and war crimes • Belgian court issued arrest warrant for Y, Congo Minister of Foreign Affairs • Congo brought case before ICJ to establish diplomatic immunity for foreign minister of sovereign state • ICJ discussed principles of diplomatic immunity • Full immunity required to enable minister to perform duties of position • Don’t distinguish between official capacity and private capacity • Customary international law doesn’t recognize exception for war crimes or crimes against humanity • But some limits to immunity: • Not immune from arrest in own country • State may waive immunity • Immunity ceases when person ceases to hold office • May be subject to action of international criminal courts • Concurring Opinion: Only recognize universal jurisdiction for piracy

21. Liechtenstein v. Guatemala • Facts: N born in Germany but resided in Guatemala; granted citizenship by Liechtenstein under special procedure; Guatemala seized N’s property during WWII; L sues G seeking damages • Issue: Does ICJ have jurisdiction over case here? • Decision: No; L can’t bring claim on behalf of N against G • Reasons: G not required to recognize L’s grant of citizenship to N; L can’t bring claim for N against G in ICJ

22. M. Aslam Khaki v. Syed Mohammad Hashim • Facts: Pakistani banks appeal on ban on riba (interest) on loans and deposits • Payment of interest involves injustice • Money not a commodity under Islamic principles – it is medium of exchange, not meant for trade in money itself • Injustice to use money for other purposes • Interest allows earning return without taking part in real economic activity • Islam doesn’t recognize loans as income-generating transactions • Shariah only permits borrowing money in cases of dire need • Interest means loan becomes profitable trade – turns economy into debt- oriented – mankind under “slavery of debt” • Islamic financing based on profit and loss sharing – any profit earned is reward for bearing risks of business • 2002 – Pakistan Supreme Court held above decision based on errors; rules against interest don’t apply to non-Muslims