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International Business Law summary 1
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Summary of 49 pages for the course International Business Law at HvA (all chapters)
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Chapter 1 Introduction to International and Comparative LawA. What is international law?
The body of legal rules and norms that regulates activities carried beyond the legal boundaries
of a single state.
There are 3 kinds of international relationships.
1. States-States.
2. States-Persons.
3. Persons-Persons.
- Public International law: the division of international law that deals primarily with the
rights and duties of states and intergovernmental organizations as between themselves
- 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.
3 ways of looking at IL:
1)Cosmopolitans: IL is based on universal human rights
2)Positivists: Based on 1) The sovereign equality of all states. 2) State consent to indiv. IL
3)Hobbesians: States will make agreements/abide them only if it suits their interests.
- Comity: the practice of courtesy existing between states of treating each other with goodwill
and civility. It is thus understood as an informal principle that nations will extend certain
courtesies to other nations particularly by recognizing the validity and effect of their
executive, legislative, and judicial acts.
- Territorial basis: if a business incorporated in a different state operates a manufacturing
facility in your state and violates the law of your state, your state will have the well-
recognized power under customary international law to hear and decide case against the
foreign defendant.
- National Jurisdiction: if U.S. companies do certain acts in foreign states, they may still be
held accountable in U.S. courts under the principle of nationality jurisdiction.
- Objective territoriality jurisdiction: if a foreign company acts in a way that directly
affects a state other than their own, they may be held accountable by the other state.
B. The Making of International Law
At international level there is no formal lawmaking machinery. There is no world government.
In working together, the different states function in the roles of both lobbyists and legislators.
Under positivist principles, international law comes into effect only when states consent
(goedkeuren) to it. The general consent of the international community can be found in state
practice, that is, in the conduct (besturen, leiden) and practices of states in their dealings with
each other. Statements or evidence of general consent can be found in the
1. decisions of the international court of justice.
2. In resolutions passed by the general assembly of the United Nations.
3. In law-making multilateral treaties(treaty between more than 2 states).
4. In conclusions of international conferences. Sometimes, when a provision (bepaling) is
repeated over and over in bilateral treaties(formal binding agreement between 2 states),
courts and law writer will regard the provision as having the general consent of the
international community.
,C. Sources of International Law
The sources, or evidences, of international law are what international tribunals rely on in
determining the content of international law. Article 38(1) of the Statute of the ICJ lists the
courses that the court is permitted to use:
1. International conventions. 2. International custom, as evidence of a general practice
accepted as law. 3. The general principle of law recognized by civilized nations. 4. Subject to
provisions of Article 59, judicial decisions and teachings of the most highly qualified
publicists of various nations. This listing implies a hierarchy, or order, in which these sources
are to be relied on.
Treaties and Conventions
- Treaties: Legally binding agreement between 2 or more states.
- Convention: Legally binding agreement between states sponsored by an international
organization.
Custom
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. 3) generally accepted.
To show that some practice has become customary law, 2 elements have to be established.
One is behavioral, called usus, a consistent and recurring practice. The other is a
psychological element; meaning that states must recognize the custom as being a practice that
they must obligatorily follow as compared with one that they follow out of courtesy to other
states. This is referred to as opinion juris sive necessitates.
- Persistent objection: Active rejection of a customary practice from its first observance by
other states.
General Principles and Jus Cogens
When courts are required to decide international disputes, they frequently rely on general
principles of law (principles that are common to the legal systems of the world.)
- Jus Cogens: (as a body of higher law for the I. community) A peremptory (categorisch,
beslist) norm of general international law, recognized by the international community of
States as a norm from which no derogation is permitted.
D. The Scope of International Law in Actual Practice
The practice in International Tribunals
International tribunals generally regard municipal (gemeentelijk) law as
subservient(subordinate in capacity or function) to international law. Not only do
international tribunals treat international law as the superior law, but they also regard states as
having a general obligation to bring their municipal law into compliance with international
norms.
The practice in municipal courts
In municipal courts, international law is generally treated as correlative(A
reciprocal/conmplementary relationship) (wedekerig of aanvullende relatie). That is, once a
court determines that a particular rule of international law is applicable in a particular case,
,the law will be treated as law (eenmalig) and not as a fact (voor altijd).
Countries have different ways of interpreting this, it depends on whether the law is based on
customary practice, or is contained in a treaty.
Customary practice:
- Doctrine of incorporation: Customary international law is treated as adopted to the extent
that it is consistent with prior municipal legislation or judicial decision of final authority.
- Doctrine of transformation: Customary international law is not applicable until clearly
adopted by legislative action, judicial decision, or established local usage.
Treaty:
The reception (aanvaarding) rules found in treaties depend on 2 factors. One is the nature of
the treaty, and the other is the constitutional structure of the ratifying state.
As to the nature of treaties, they may be either self-executing or non-self-executing.
- Self-executing treaty: The treaty will apply to the parties without their having to adopt any
domestic enabling legislation.
- Non-self executing treaty: A treaty that requires state parties to enact enabling legislation
before it becomes effective domestically.
As to the structure of states, there are constitutional treaties, and executive agreements.
- Constitutional treaties: A treaty adopted according to the constitutional provisions of the
ratifying state.
- Executive agreement: A treaty or international agreement entered into by a state’s executive
(i.e. president) without following the state’s constitutionally required ratification procedure. It
is not effective domestically.
E. International Persons
States
States: are political entities that have a territory, a population, a government capable of
entering into international relations, and a government capable of controlling its territory and
peoples. Independent states are free from its political control of other states and free to enter
into agreements with other international persons. Dependent states have formally
surrendered some aspect of their political and governmental functions to another state.
Inchoate states lack some attribute required to be treated as a fully independent state; most
commonly they lack territory or population.
For a state to exist in the international community, it must be recognized by other states.
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.
There are 2 theories for when a government should be recognized.
1. Declaratory doctrine: legal existence of a government happens automatically by operation
of law whenever a government is capable of controlling a territory and its people.
2. Constitutive doctrine: The legal existence of a state or government is dependent on
recognition by other states.
, It is important for a government to be recognized because recognition implies that the
recognized government wishes to have normal relations. And recognized governments are
entitled, among other things, to diplomatic protection and sovereign immunity.
Estrada doctrine: Doctrine that foreign governments will not be explicitly recognized.
For a state to exist, it must have territorial sovereignty. Sovereignty is the right to exercise
the functions of a state within a territory. Other states may obtain servitudes (right to the use
of another’s property), either by treaty or practice, to a limited use of certain territory. This
can also be negative, when one state uses it to prevent another state from doing something.
To have territorial sovereignty, a state must first acquire territory. This is done in several
ways.
1. By occupation of land not claimed by another sovereignty.
2. By the voluntary transfer of territory from one sovereign to another.
3. By the conquest and continued occupation of the territory of another sovereign.
Once territory is acquired, a state’s title is affirmed either by the formal recognition of other
states or by a process of estoppel. Estoppel arrises when a state fails to speak up and object to
another’s exercise of sovereignty when it would be reasonable to do so. By failing to object, a
state is tacitly recognizing the new status quo. This has the evident effect of making it difficult
for a state to change its position.
When there is a change in sovereignty over territory, several legal consequences arise. As to
treaty rights and obligations, successor (opvolger) states must observe treaties that implement
general rules of international law, and they are bound by dispositive treaties. That is, treaties
concerned with rights over territory, such as boundaries and servitudes. The obligation of a
successor state to observe other treaty commitments depends on whether it acquired a
territory by a merger, partial absorption, or complete absorption or whether a seceding
territory attains its independence through decolonization or dissolution.
The Merger rule governs the first of these cases. This rule presumes that when 2 states merge
to form a new state, the preexisting (voorloper) treaties remain in force in the territories where
they previously applied.
There are 2 exceptions to the merger rule:
1. The new successor (opvolger) state and other states that are parties to a treaty with one of
the predecessor (vorige) states can agree to either terminate the treaty or extend it to the
whole territory of the new state.
2. A treaty will terminate if its object and purpose can no longer be accomplished or if the
condition necessary to accomplish its object and purpose have radically changed.
If territory from one state shifts to another, the law of state succession applies the moving
boundaries rule. This holds that the treaties of absorbing state displace the treaties of the
receding state in the territory where sovereignty has changed.
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