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International Law

Prepared by :-

Musbri Mohamed
DIL; ADIL ( ITM )
Pursuing MBL ( UKM )

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International Law

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GATT/WTO
Regional Agreements

NAFTA – free trade


EU – trade plus “ever closer union”

Do member states give away their sovereignty


when they join arrangements like these? If so,
how?

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Unlike federal or state statutory law, judge-
made common law, or administrative law,
international law is not created by a
sovereign. That is, international laws are
not effective until ratified by sovereign
national governments.

However, their indirect effect (through


national enforcement) can be significant
and profound.

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What is international law?

Treaties (e.g., Law of the Sea; GATT), and


Rules developed by international
organizations created by treaties (e.g.,
U.N.; WTO)
How is international law enforced?
Is it different in some fundamental way
from other “sources” of law like
constitutions, statutes, regulations, and
common law?

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Most generally, international law consists of the body
of rules & procedures that are intended to govern
relations between nations or states.
International law has traditionally
been based on the notion of state
sovereignty, but that concept has
been breaking down because of
the globalization. Interactions
between states have become more
complicated, involving a wide array
of issues that require them to give
up some of their sovereignty in
order to have effective relations
with each other.

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Art. 38(1) of the Statute of the I.C.J.
defines customarily recognized sources:

“Disputes submitted to the court should be


decided by applying treaties, international
customs, general principles of law, judicial
decisions, and the teachings of
international law scholars…”

Among many international organizations, the


United Nations facilities international diplomacy,
the World Health Organization coordinates
international public health protection, and the
International Labor Organization monitors and
fosters workers’ rights around the world.

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International Organisations

1. UN

a. Structure/Security Council
b. Kyoto
c. Hazardous Waste

2. EU

a. Structure
b. Environment (Waste or Nature
Conservation).

3. WTO

a. Structure
b. Conflict Trade/Environment

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What is Law?

Set of rules of conduct

Made by an organised entity (i.p. a state)

Governing the relationships between


people and organisations

Providing means of enforcement and / or


punishment of those who do not comply
with the rules.

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Law is not necessarily congruent with

-Justice

-Morality

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Purpose of Law

To allow people to coexist


by providing an enforceable set of
rules
and thus making other people’s
conduct foreseeable and setting a
frame for a person’s own conduct.

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Position of Law within the Whole

The law does not stand alone but


interacts with :-

-the political system


-the economical system
-society

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Why is Law Binding?
Formally: because it is made in
accordance with the applicable rules (e.g.
an act made by parliament in accordance
with the provisions of the constitution)

Practically: because it is considered


binding by a majority.

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Public International Law: regulates the
relations between national states. Now,
through conventions, it also recognizes the
rights of individuals and, thus, governs
relations between a state & citizens of other
states.

Private International Law: consists of


those rules and practices that determine
where and by whose law controversies
involving more than one state are resolved,
and how foreign judgments are enforced.

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“International custom” & “General principles”:

Concordant practice by a number of States with reference to


a type of situation falling within the domain of international
relations;

Continuation or repetition of the practice over a considerable


period of time;

Conception that the practice is required by, or consistent


with, prevailing international law;

General acquiescence in the practice by other States. Stated


by Judge M.O.Hudson of the Int’l Law Commission for
establishment of Art.24.

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Approaching a Research Problem in Int’l Law:

Begin with a reference work


(e.g. bibliography), a law review article, or a
treatise for general information or for help
analyzing the issues.

Next, determine whether there are Treaties in


Force.If so, the legislative history of the treaty
& its interpretation by the courts may be
important.

If there is no treaty, the researcher should


explore national practice, evidences of
“international custom” and “general principle
of law”.

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Public Law (the law governing the relationship
between individuals and the state or between
states).

(Public) International Law (the law that


regulates the relationships between states and
international organisations).

Constitutional Law (the law that governs the


fundamental principles of the organisation of a
state and of its relationship to the individuals (e.g.
government bodies, legislative procedure, civil
rights).

Administrative Law (the law dealing with the


decision-making and control of administrative
units of government, sub-categories are e.g.
police law, local government, tax law).

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Private Law (the law governing the
relationship between individuals).

General Private Law (i.p. contract, tort).

Specific Private Law (e.g. commercial law,


company law, competition law, employment
law).

Private International Law (the branch of


law regulating all lawsuits involving a foreign
law element where a difference in result will
occur depending on which laws are applied).

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Criminal Law (the law that deals with crime
and the legal punishment of criminal offences).

Annex to each field: Procedural Law (e.g. civil


litigation, criminal procedure).

Areas touching more than one field (e.g.


environmental law = public environmental law +
private environmental law + environmental
criminal law).

Areas overlapping with other humanities


(e.g. legal theory, philosophy of law,
criminology).

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Sources of Law

Levels:

Local government
State within a federal state / province
National
Supranational (e.g. EU)
International

( no universal hierarchy within national law;


priority is a matter of definition)

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Common law

Term:
1. Opposite of civil law (here relevant).
2. Opposite of statutory (written) law.

Spread:
Mainly UK, Ireland, North America, Australia, New Zealand
(mix of common and civil law in Scotland and Quebec (CA)).

Origin:
Development since the Norman rule from 1066 A.D. (no
major
impact of Roman law).
Country of origin = England.

Characteristics:
Traditionally no codification of law (now more and more
statutes)law mainly made by judges in court through
development
of general principles by comparision of cases focused on
practical
needs, i.p. of trade strict rules on departure from previous
judgements (precedents) on same issue. 21
Civil law

Term (2 different meanings):


1. Opposite of common law (here relevant).
2. Synonym for private law.

Spread: Mainly continental Europa, Latin America; also parts of


Asia, Africa.

Origin: Roman law (500 A.D.); adopted in Europe from Middle Ages.

Characteristics:
Codification of law (e.g. French „Code Civile“ (1804), German ,
Bürgerliches Gesetzbuch“ (1900)) -> law made by parliament.
Very abstract + systematic.
Development of general principles mainly through writing of legal
scholars.
Function of judges = application of law; precedences not binding.

Sub-categories:
Romanistic family (French impact; more directly based on Roman
law).
Germanic family (based on reception of Roman law in German
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countries in medieval times).
Islamic law

Term: = Sharia (devine rules of conduct, covering all


areas of life)

Spread: Near East, parts of Africa, Pakistan, Malaysia,


Indonesia (often as part of a mixed system).

Origin: Emergence of Islam from the 6th century.

Characteristics:
Based on islamic religion.
Main source = Qur‘an (7th century; will of Allah
revealed to mankind through prophet Muhammed)not
man made, but made by Allah -> Unchangable by men
rules cover private life also (e.g. drinking, prayers).
Applies to all Muslims regardless of nationality or
residence.

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Indigenous law

Term: = traditional law of local or regional native groups.

Spread: Nowadays nearly everyway replaced by more


modern law (e.g. law of the Inuits or Polynesians).

Origin: Earliest form of law everywhere in the world.

Characteristics:
Not in writing (oral transmission).
Gradual development depending on social needs (factors:
time, place, way of life).
Not very complex.
Originally based on consensus (no means of enforcement).
Application limited to group of people without state quality.

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Conflict of Laws

Because the dividing lines between the


different sources of law are not always
unambiguous, conflicts between different
laws may arise (e.g. between different
national laws)

Therefore rules / mechanisms needed to


solve conflicts

(e.g. Private International Law = PIL)

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Problem:
private law = national law (i.e. every state has its own
legal system)
but in practice often legal situations that touch more than
one state (e.g. international trade; marriage of citizens of
different states)

Possible solutions:
Application of one national private law to be chosen by
conflict of laws principles.
Creation of universal laws / rules applicable regardless of
national borders (see lessons on international commercial
contracts and arbitration).
Harmonisation / unification of national laws (e.g. EU).

Definition:

Conflict of laws (= private international law, PIL)


= the legal discipline that determines what national private
law applies to a case that involves a foreign law element.
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Specification:

Courts can apply the law of a foreign state.

Question is not the courts of what state are competent


(usually there is a choice between the courts of all states
touched).

Question is if the domestic court has to apply foreign law.

Sometimes combination of different foreign laws or foreign


and domestic law necessary.

Traditionally, conflict of law rules are national law, not


international law (i.e. every state has its own rules
stipulating when a court has to apply foreign law).

But similar principles can be identified (harmonisation


efforts, i.p. The Hague Conference on PIL, founded in 1893).

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Possible criteria for choice of law (Principles
are based on considerations of reason,
convenience, utility) :

Place of court (lex fori).


Nationality of parties (lex patriae).
Domicile/residence of parties (lex domicilii)
Place of event in question (lex loci actus; e.g.
conclusion of contract, marriage, tort, fulfilment of
duty).
Place of object in question (e.g. goods; if land =
lex situs).
Will of parties

-> what criterion actually prevails in a given case


depends on its specific legal issues.

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Execution and Enforcement of Law

For law to be efficient, means are needed to ensure that


it is executed and if necessary enforced.

Such means are:

A well-organised system of executing bodies (i.p. in


administrative law).

A functioning court system incl. procedural rules.

Sanctions for non-compliance (e.g. loss of rights, fines,


imprisonment).

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Construction / Interpretation of Law

= the process of determining how the


provisions of the general law relate to a
specific legal case

Necessary because acts, contracts,


judgements etc. are not always
unambiguous (e.g. due to compromises in
the course of enactment, unforeseen
situations, change in meaning).

The rules apply similarly to acts and


contracts (there are specific rules on the
treatment of judgements in common law).

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= the process of determining how the
provisions of the general law relate to a
specific legal case.

Necessary because acts, contracts,


judgements etc. are not always unambiguous
(e.g. due to degree of abstractness,
compromises in the course of enactment,
unforeseen situations, change in meaning).

Similar rules apply to acts and contracts


(there are specific rules on the treatment of
judgements in common law)

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Established rules / approaches:

Ordinary meaning rule (= words must be given their


plain, ordinary and literal meaning).

Systematic approach (= a provision must be looked


upon in its systematic context, e.g. position within the
act, interaction with other provisions).

Purposive approach (= the purpose of the provision


has to be taken into account).

Historical approach (= the situation at the time the


provision was made and subsequent developments
have to be considered).

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Method of IL
Your Expectations / Ideas / Proposals

Combination of theory and practice.


Case studies / examples (from different countries and
sectors).
Discussions.
Students‘ presentations.
Group work.
Assignments.
Materials to prepare for class (e.g. texts to read).
Games, moot court, mock UN conference.

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Topics of IL
Your Expectations / Ideas / Proposals

General ideas + structure of law; basic definitions


System of International Law
Different national laws
EU law
Int. environmental law + law of resources
(e.g. Kyoto Protocol, emissions, climate change, carbon
credits, logging, pollution, renewable energies, energy
conflicts, water, environmental damages).
Company law / commercial law
Property law / land law / intellectual property
Quality standards for products

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Criteria for the Assessment of Presentations

Content of presentation
(handling of topic, structure, understandability,
focus on important points).

Difficulty of topic.

Slides (reasonable amount + structure of


information;
not design).

Way of presentation (rhetorical quality, not just


repeating the slides, use of own words, facing of
audience, involvement of audience).

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Technological change, basically improvement in
communications (Internet), accelerated the progress
of globalization
Firms were able to access market knowledge quicker

Most economists are convinced that this wave of


globalization is a natural evolution of the Ricardian law of
comparative advantage, the cornerstone of international
trade

Ricardian theory says that countries should only produce


goods and services in which they have a comparative
advantage over other countries, and buy those in which
they are at a comparative disadvantage. Gains from trade
will outweigh losses from non-employment

And so international law will be acting as tools to


international trade.

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The scope and authority of international law have thus expanded
dramatically during the era of globalization. Historically,
international law addressed only relations between states in certain
limited areas (such as war and diplomacy) and was dependent on the
sovereignty and territorial boundaries of distinct countries (generally
referred to as “states”).

But globalization has changed international law in numerous ways.


For example, as globalization has accelerated, international law
become a vehicle for states to cooperate regarding new areas of
international relations (such as the environment and human rights),
many of them requiring states to rethink the previous notions of the
inviolable sovereign state.

The continued growth of international law is even more remarkable


in this sense, since states, having undoubtedly weighed the costs and
benefits of the loss of this valuable sovereignty, have still chosen to
continue the growth of international law.

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What Is International Law?

Basically defined, international law is simply the set of


rules that countries follow in dealing with each other. But
this basic definition must be supplemented with three more
complex explanations—Is international law really law, the
way the laws of the United States, enforced by courts and
police, are? Where do we find the rules of international
law? Are they written down somewhere? Finally, how is
international law enforced, if there is no world
government?

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Is International Law Really “Law”?

There are several ways to think about law. In the domestic legal system,
we think of law as the rules that the government issues to control the
lives of its citizens. Those rules are generally created by the legislature,
interpreted by the judiciary, and enforced by the executive branch, using
the police, if necessary, to force citizens to obey.

What is law for the international community if there is no one


legislature, judiciary, executive branch or police force?

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What Are the Sources of International Law?

Since there is no world government, there is no world Congress


or parliament to make international law the way domestic
legislatures create laws for one country. As such, there can be
significant difficulty in establishing exactly what is international
law. Various sources, however— principally treaties between
states—are considered authoritative statements of international
law.

Treaties are the strongest and most binding type because they
represent consensual agreements between the countries who sign
them. At the same time, rules of international law can be found,
as stated in the statute of the International Court of Justice (ICJ),
in customary state practice, general principles of law common to
many countries, domestic judicial decisions, and the legal
scholarship.

Thank you.

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