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Chapter 2
International Law and the World’s Legal Systems
Cases in This Chapter
The Paquette Habana, p. 47.
Sosa v. Alvarez-Machain, p. 48
Renkel v. United States, p. 51.
Democratic Republic of Congo v. Belgium, p. 58.
Liechtenstein v. Guatemala (Nottebohm Case), p. 65.
Khaki v. Hashim, p. 73.
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 may fundamentally differ 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). In many ways, international law and its cross-international legal understandings 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 individuals and the latter referring to regulation of conduct between and among states.
Case Questions and Answers
The Paquette Habana, p.47.
1. What are the sources of international law?
Answer: International law may be found in treaties, judicial decisions and learned writings, customs, and general principles of law. For example, civilized nations have agreed that fishing vessels are exempt from capture as prizes of war. Similarly, Article 38 of the statute of the International Court of Justice presents the hierarchy of sources of international law as (1) conventions; (2) customary law; (3) general principles; and (4) teachings of jurists.
2. Why did the court review the history of the conduct of the nations during war time?
Answer: To show the general acceptance of this principle or "established rule" of law.
3. Which international custom applied to this dispute?
Answer: That fishing vessels and their cargo are exempt from capture during times of war.
4. Why did the court review the history of the conduct of nations during war?
Answer: To demonstrate that the principle on which they relied was a generally accepted principle or “established rule” of law.
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, p.48.
1. What were the two principal elements of the law of nations at the time of the adoption of the Alien Tort Statute?
Answer: The first principal element of the law of nations at the time of the adoption of the Alien Tort Statute was general norms governing the behavior of states with one another. The second principal element of the law of nations was rules binding on individuals for the benefit of other individuals.
2. According to Justice Souter, what is the “relatively modest set of actions” intended by Congress to be encompassed by the Alien Tort Statute?
Answer: Justice Souter described the “relatively modest set of actions” intended by Congress to be encompassed by the Alien Tort Statute as offenses against ambassadors, violations of safe conduct, actions arising out of prize captures and piracy.
3. On what basis did the Supreme Court recognize subject matter jurisdiction for U.S. federal courts with respect to claims arising from the modern law of nations? Why was this standard fatal to Alvarez-Machain’s claim?
Answer: The Supreme Court recognized subject matter jurisdiction for U.S. federal courts with respect to claims arising from the modern law of nations if such claim rested on a norm of an international character accepted by the civilized world and defined with a specificity comparable to the eighteenth century norms which the Alien Tort Statute was intended to address. This standard was fatal to Alvarez-Machain’s claim because the right to be free from arbitrary arrest lacked this specificity, there was little authority for conferring upon this right recognition as a binding customary international norm and the right was an aspiration rather than a binding rule possessing the requisite specificity.
Renkel v. United States, p. 51.
1. To whom do rights created by treaties belong in the United States?
Answer: In the United States, courts presume the rights created by international treaties belong to the state and that private individuals cannot enforce them. This presumption means that an individual seeking to enforce a treaty rights carries the burden of proof to demonstrate the treaty was intended to confer individually enforceable rights.
2. What is the difference between self-executing treaties and non-self-executing treaties?
Answer: A self-executing treaty is a treaty which does not require domestic legislation to have the full force of law. By contrast, a non-self-executing treaty requires domestic implementing legislation to have the force of law. Any private claim based on a non-self-executing treaty must allege a violation of the domestic implementing legislation.
3. What are the factors utilized by courts in determining whether a treaty is self-executing or non-self-executing? Why did the court conclude the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment was not self-executing?
Answer: U.S. courts will examine the express terms of the treaty and then the treaty as a whole to determine if it evinces intent to be self-executing and create a private right of action. The court conclude the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment was not self-executing as the federal statute adopted to fulfill U.S. obligations pursuant to the Convention did not provide a civil remedy for torture occurring within the United States.
Democratic Republic of Congo v. Belgium, p. 58.
1. Why is diplomatic immunity important?
Diplomatic immunity is important in order that diplomats may carry out their duties as state representatives in international negotiations, including the negotiation of international agreements, travel and communicating with their national governments.
2. Under what circumstances may a diplomat be subject to prosecution?
A diplomat is subject to criminal prosecution in his or her own state and may thus be tried by its courts. Second, a diplomat may be subject to criminal prosecution if his or her state waives diplomatic immunity. A diplomat may also be prosecuted after he or she no longer holds a diplomatic post. Finally, diplomats are subject to prosecution by certain international criminal courts.
3. What is concurrent jurisdiction?
Concurrent jurisdiction permits authorities to prosecute perpetrators of particularly serious crimes in the state on whose territory the crime was committed as well as in the state where they have sought refuge.
4. Why is universal jurisdiction only reserved for piracy in the absence of a treaty or international convention?
Universal jurisdiction is reserved for piracy in the absence of a treaty or international convention as it occurs on the high seas outside of all state territory.
Liechtenstein v. Guatemala (Nottebohm Case), p.65.
1. On what basis did Liechtenstein file this action if only states are to be parties before the I.C.J.?
Answer: Liechtenstein filed this action on behalf of Nottebohm because it alleged Guatemala’s disregard of Nottebohm's Liechtenstein citizenship was an affront to it as a sovereign state.
2. Does it interfere with Liechtenstein's sovereignty to have a court disregard its conferral of citizenship on Nottebohm?
Answer: Yes. Although states have the right to establish their own rules for the granting of citizenship, "real and effective" nationality is the test used by most, and reflective of "well established principles of international law." Further, Nottebohm’s nationality would be recognized within Liechtenstein but not for the purpose of this case.
3. Did the court find this general principle of international law in a treaty?
Answer: No. Again, legal writings and customary international law were analyzed.
4. In light of the court’s decision, could Nottebohm claim to be a Liechtenstein citizen under that country’s domestic law?
Answer: Yes. Liechtenstein could consider whomever it wished a citizen under their domestic law; it could not, however, confer citizenship on Nottebohm for the purpose of requiring other countries to treat him as if he were a Liechtensteiner.
Khaki v. Hashim, p. 73.
1. What is riba? Why is riba not permitted pursuant to the Shar’iah?
Answer: Riba is the payment of interest by banks on loans and deposits. The Shar’iah states that lenders should only loan money on humanitarian grounds to achieve a reward in the next life or to save their money through a safer hand. The Shar’iah permits the borrowing of money only in cases of dire need and discourages the practice of incurring debts for living beyond one’s means or to grow one’s wealth.
2. How is money different from a commodity? Are these distinctions accepted in Western culture?
Answer: Money different from a commodity as it is not the subject matter of trade but only acts as a medium of exchange and is created for a purpose other than for trade in itself. The answer to the second question calls for opinion, but students may want to explore the this question in light of international currency exchanges and whether money has become the “ultimate goal” as condemned in the Pakistani Supreme Court’s opinion.
3. Are 900 year old sources such as the writings of Imam Al-Ghazzali cited in the opinion relevant in a modern globalized economy?
Answer: The answer to this question calls for opinion, but students may want to explore the relevancy of religious and ethical beliefs with respect to commercial practices in general and international trade and other exchanges in particular.
Answers to Questions and Case Problems
1. Answer: Public international law is a body of rules binding nation states in their mutual and global relationships. Recently, this has been extended to cover international organizations. Private international law is the body of rules binding individuals of different nations in their interactions. This falls into one of two categories: (1) mechanisms for resolving disputes between individuals or corporations from different countries or (2) treaties that apply to individuals or businesses subject to different legal systems. International Business Law would borrow from both and pertain to the international body of rules that have developed to order business relationships.
2. Answer: A wide variety of problems lend themselves to resolution through the application of international law. These issues include problems arising between states in their relations with one another and the conduct of states in their relations with individuals. Specific examples include human rights, criminal law and transnational crimes such as terrorism.
3. Answer: Typically, such individuals are speaking from a legal egocentric understanding of law or are speaking in shorthand. Those who claim that international law is non-existent may mean that international law does not possess the characteristics of American law: there is no international constitution; there is no legislatively drafted code; there is no one court system with supreme authority to interpret law, decide disputes, and issue binding decisions.
Nonetheless, there is, very clearly, international law. There exist a multitude of international treaties, essentially contracts, between nations setting out standards and legal rules. There exist a variety of adjudication mechanisms, including courts and arbitration venues. There is also a well-developed body of legal understandings, such as those found in customary law that are accepted and enforced globally despite the absence of codification.
4. Answer: International conventions tend to harmonize national laws by creates uniform and widely accepted bodies of law. Harmonization benefits business by making applicable law more uniform and predictable.
5. Answer: This question calls for an opinion regarding the efficacy of corporate codes of conduct and the extent to which they may replace government regulation.
6. Answer: Corporations are accountable to all of their stakeholders, including shareholders, employees, members of the supply chain, the governments of their home and host states and the community at large. Compliance with corporate codes of codes may be promoted through effective communication with employees, incorporation into corporate culture, adoption of disciplinary measures for assuring compliance and development of a system for measuring effectiveness.
7. Answer: Yes. A corporation is a legal entity subject to suit and prosecution.
8. Answer: Although President George W. Bush does not favor the treaty, the White House has not given specific objections to it. The Clinton-appointed delegation (and some members of the U.S. Senate) feared certain procedural aspects of the treaty. For instance, the United States wants a check to power, believing that the ICC should act only with the approval of the UN Security Council. Under this procedure, the U.S. (as one of the permanent members) could prevent a prosecution through its veto power. Additionally, the U.S. believed that peacekeeping forces, which are often comprised of U.S. forces, could be subject to prosecution. Others favor ad hoc tribunals, such as those used in Nuremberg, Tokyo, Rwanda, and the former Yugoslavia, that allow the flexibility to respond to unique circumstances. Some prefer to alter the Statute of the existing International Court of Justice to cover these issues.
9. Answer: Territoriality refers to jurisdiction over all persons, places and property within the territory, airspace or territorial waters of a state. Nationality requires individuals and corporate citizens comply with the laws of the state of their nationality no matter where they are located in the world. The protective principle allows jurisdiction of noncitizens for acts done abroad on the basis of a country’s need to protect its national security, vital economic interests and governmental functions. It has been used as a basis for the prosecution of accused terrorists. Passive personality jurisdiction gives a state the right to hear cases stemming from crimes committed against their own citizens by foreign citizens outside of their own territory. It also has use in the prosecution of terrorism. The universality principle permits any state to prosecute perpetrators of the most heinous and universally condemned crimes regardless of where they occurred or the nationality of the victims or perpetrators.
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 international definition or proscription. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment recognizes universality by calling upon signatories to enact laws punishing those who commit torture and exercise jurisdiction if the victim was one of their citizens, if the act occurred in their territory or if the offender was later found in their state.