Lecture 1

Introduction to International and Comparative Law

Topics covered:
 What is International Law?
 The Making of International Law
 Sources of International Law
 Scope of International Law
 International Persons

Right of Individuals under International Law

Lecture 1

A. WHAT IS INTERNATIONAL LAW?

1. Defined: The body of rules and norms that regulates activities carried on
outside the legal boundaries of nations.
a. Three international relationships are governed by international law:
1) Those between nations and nations.
2) Those between nations and persons.
3) Those between persons and persons.
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2. Is International Law Really Law?

a. It is because nations regard it as something they are obligated to respect.

b. Distinguish: Comity
1) Comity is courtesy. It is the practice between nations of treating each
other with goodwill and civility.
2) Comity is NOT law because countries do not regard it as something
they are obligated to respect.

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B. THE MAKING OF INTERNATIONAL LAW

1. There is no formal international law-making machinery

2. The basic mechanism for creating international law is:

The consensus of the international community.

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C. SOURCES OF INTERNATIONAL LAW

1. Sources listed in Article 38(1) of the Statute of the International Court of

Justice
a. International conventions.
b. International custom.
c. General principles of law.
d. Judicial decisions.
e. Teachings of publicists.

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2. Treaties and Conventions - The most important sources of international law.

a. Treaties are agreements between one or more nations.

b. Conventions are agreements sponsored by international organizations.

c. Reasons for binding effect:

1) Shared sense of commitment.

2) Because one country fears that if it does not respect its

promises, other countries will not respect their promises.

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2. Treaties and Conventions (continued)

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 a. Rules governing treaties:

1) Traditionally customary.

2) Now codified in the Vienna Convention on the Law of Treaties (in force
since 1980).

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3. Custom

a. Defined: Rules that have been around for a long time or which are generally
accepted.

b. To establish the existence of a customary law must show two things:

1) Usus: Consistent and recurring action (or lack of action if the custom is one of
noninvolvement) by states.

2) Opinio juris et necessitatis: Belief by states observing a custom that it is as one that
they must obligatorily follow.

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3. Custom (continued) - Exceptions to the application of customary practices:

1) If a state persistently refuses to observe a customary practice from the

practice's beginning, it doesn't have to.

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OTHER SOURCES OF INTERNATIONAL LAW

4. General Principles - those legal principles common to nation states.

5. Intepretation of treaties, customs, and general practice

 Judicial decisions
 Teachings of publicists.

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D. THE SCOPE OF INTERNATIONAL LAW

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 1. The Practice in International Tribunals

a. Municipal law is regarded as subservient to international law.

b. States have a general obligation to bring their municipal law into compliance with
international norms.
c. Procedurally municipal law is treated as "mere fact."

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D. THE SCOPE OF INTERNATIONAL LAW (continued)

2. The Practice in Muncipal Courts:

1) International law is regarded as correlative.

1) Court determines if a particular international

law has been received into the municipal
jurisprudence.
2) If it has, the Court applies it as if it were a
local law and not a mere fact.

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b. Determining if International Law has been Received

into the Local Jurisprudence

1) Customary international law:

a) Doctrine of Incorporation: a custom is automatically part

of a nation's laws as long as it is not inconsistent with those
laws. (Majority rule)

b) Doctrine of Transformation: a custom is not part of a

nation's laws until espressly adopted by legislative or judicial
act, or by local usage. (Minority rule)

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b. Determining if International Law has been Received into the Local
Jurisprudence (continued)

1) Treaty law:

a) Look at nature of the treaty:

1] Self-executing

2] Non-self-executing

b) Look at structure of state adopting the treaty:

Does the legislature have to ratify?

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E. INTERNATIONAL PERSONS
 States
 Intergovernmental organizations (IGOs)
 Nongovernmental organizations (NGOs)
 Individuals

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1. States

a. Defined: Political entities that have all of the following characteristcs -

1) A territory.

2) A population.

3) A government capable of entering into international relations.

4) A government capable of controlling its territory and people.

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1. States (continued)

b. Kinds of states:

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 1) Independent: free from political control of other states.

2) Dependent: have formally surrendered some of the their political and

governmental functions to another state.

3) Inchoate: lack some attribute required to be a state.

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c. Recognition of States and Governments

1) Recognition is a unilateral decision by another state

a) Effect: implies that the recognized state or government is entitled to all

the rights and privileges granted by international law.

2) Recognition of state: usually automatic when an independent state gomes

into existence.

3) Recognition of government:

a) Declaratory doctrine: recognition happens automatically whenever a

government is capable of controlling a territory and a people.

b) Constituitive doctrine: recognition must be formally granted by another

state.

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c. Recognition of States and Governments (continued)

4) Problem: How to avoid the implication that recognition also means approval of
a particular government?

a) Estrada Doctrine: One government should never explicitly recognize

any other government.

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d. Territorial Sovereignty: the right to exercise the functions of a state within a territory

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 1) Not an absolute right - for example:

a) Positive servitude: the right to do something within another state.

b) Negative servitude: the right to prohibit another state from doing

something within its territory.

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e. Changes in Territorial Sovereignty

1) Things not effected by a change of sovereigns:

a) Treaties implementing general rules of international law.

b) Dispositive treaties: treaties concerned with rights over territory, such as

boundaries and servitudes.

c) Individuals: keep the nationality of their original state (unless another

arrangement is made in a treaty of cession or by municipal law).

d) Private property rights of individuals.

e) Contractual rights of individuals.

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e. Changes in Territorial Sovereignty (continued)

1) Things effected by a change of sovereigns:

a) Public property:

1] If the property is located in territory that has been transferred: it

is the property of the state that controls that territory.

2] If the property is in the territory of a third state (such as an

embassy): it is the property of whichever state the third state
recognizes.

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2. International Organizations

a. Characteristics:

1) Permanent.

2) Set up by two or more states.

3) Pursue matters of common interest to the creators.

4) Function autonomously as independent international persons.

b. Examples:

1) European Union

2) United Nations

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2. International Organizations (continued)

a. Creation: essentially in the same fashion as a corporation.

1) Legal capacity: the right to carry on diplomatic relations with states and
to sue and be sued in international tribunals.

a)Acquired by recognition.

1] Automatically from its own state members.

2] When specifically granted by other states.

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3. Nongovernmental Organizations

a. Non-profit NGOs: serve as coordinating agencies for private national groups

in international affairs

b. For-profit NGOs: businesses operating internationally

1) Other names:
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 a) Multinational Enterprises (MNEs)

b) Transnational Corporations (TNCs)

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F. RIGHTS OF INDIVIDUALS UNDER INTERNATIONAL LAW

1. Traditional view: no rights, only duties.

2. Evolving view:

a. Individuals have basic human rights

b. Individuals may sue states in some international tribunals

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OTHER TOPICS IN CHAPTER 1 OF THE TEXT

Comparison of Municipal Legal Systems:

 Romano-Germanic Civil Law System

 Anglo-American Civil Law System
 Islamic Law System

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