Introduction to

International and
Comparative Law

A. What is International Law?

International law
the body of legal rules and norms that regulates
activities carried on beyond the legal
boundaries of a single state.

Public international law

Private international law
Comity
The practice or courtesy existing between states
of treating each other with goodwill and civility.
Ignacio v Texaco

B. Making of International
Law
State practice
The conduct and practice of states in
their dealings with each other

Multilateral treaty
Bilateral treaty

C. Sources of International
Law
Article 38(1) of the Statute of the
International Court of Justice
Conventions
International custom
General principles of law recognized by
civilized nations
Judicial decisions and teachings

Hierarchical structure

Treaties and Conventions

Treaty
Legally binding agreement between two
or more states
VN-USA BTA

Convention
Legally binding agreement between
states sponsored by an international
organization
VN WTO
Human Rights Convention sponsored by
UN

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

Customary law
Usus: a consistent and recurring practice

comity versus opinio juris sive necessitatis (necessary

obligation)
Following out of courtesy (comity) versus obligated to follow
the customary practice

persistent objection
Active rejection of a customary practice from its first
observance by other states

General Principals
General principles
Principles of law common to the worlds
legal systems

jus cogens
A preemptory norm of general
international law, recognized by the
international community of States as a
norm which no derogation is permitted

D. The Scope of International Law in

Actual Practice
The Practice of International
Tribunals
Subservient

The Practice in Municipal Courts

Correlative
Doctrine of incorporation
Doctrine of transformation
Self-executing treaty
Non-self executing treaty

D. The Scope of International Law in

Actual Practice (contd)
The Practice in Municipal Courts
(contd)
Constitutional treaty
Executive agreement
Sei Fujii v State

E. International Persons
States and their subdivisions
States
Independent state
Dependent state

International organizations
Businesses
Individuals

States and Recognition

States
Recognition
Matimak Trading Co.
Estrada Doctrine

Territorial Sovereignty
The right of a government to exclusively
exercise its powers within a particular territory
Servitude: A right to the use of anothers
property
The Trail Smelter Arbitration

Territorial Sovereignty
To have territorial sovereignty, a
state must first acquire territory
By the occupation of land
By the voluntary transfer of territory
By the conquest and continued
occupation
Estoppel

Changes in Territorial
Sovereignty
When changes occur there are
several legal consequences
Treaty rights and obligations of
successor
Dispositive treaties
Rights over territory, boundaries and servitudes

Changes in ... (contd)

Merger Rule
State A and State B combine to from
State C
ex: Egypt and Syria; United Arab Republic
(1958-1961)

Moving Boundaries Rule

State A absorbs State Bs territory
ex: France Alsace-Lorraine (WWI);
Germany Saarland (1957); Netherlands
West New Guinea (Indonesia, 1969)

Changes in ... (contd)

Clean Slate Doctrine
new state from decolonization
Generally no obligations (CSD)
Common practice to continue existing treaties

Vienna Convention on the Succession of

States
Art. 34: when two states come into existence
following the disintegration of a predecessor
both are bound by predecessors treaties
ex: USSR (1991)

Changes in ... (contd)

General guidelines
Nationals of a territory acquired retains
previous nationality (except treaty or
legislation passed)
Public property transfers to successor state
Note on 3rd party public property

Private property rights of individuals do not

lapse
Expropriation

Contractual obligations continue

Inherit proportion of national debt

International Organizations
Two types of IOs
Public or Intergovernmental
Organizations (IGOs)
A permanent organization set up by two or
more states to carry on activities of common
interest

Nongovernmental Organizations (NGOs)

An international organization made up of
organizations other than states

IGOs
Evolution from European tradition of
convening conferences at the end of
wars to draw new boundaries and
sign peace treaties
Conferences evolved into sponsoring
multilateral treaties and setting up
organizations to monitor treaty and
keep peace.

IGOs (contd)
League of Nations (post WWI)
United Nations (post WWII)
World Intellectual Property
Organization (WIPO) present day
International Bureau of Industrial
Property (1883) and International
Bureau of Literary Property (1886)

IGOs (contd)
Organized much the same as
corporations
Constitutional instrument, i.e. charter
Sets forth aims, objectives, internal
structure, resources, and express powers
Drafted and adopted by member states

Legal capacity must be recognized

by states
General rule: signatory states automatically
recognize
Not uniform rule. Exceptions: ex: United
Kingdom

IGOs (contd)
The United Nations
Organs: General Assembly, Security Council,
Secretariat, International Court of Justice,
Trusteeship Council, Economic and Social Council
Specialized agencies of the UN
Nonbanking
WIPO, UNESCO, IMF, ILO etc

World Bank Group

IDA, IFC etc

See Exhibit 1-3, p. 25

United Nations System

IGOs (contd)
European Union (EU)
Member States
Facts and Figures
EU Law
EU Treaties

EU endowed with supranational

powers
supranational powers

IGOs (contd)
European Union (EU) (contd)
Institutions of the EU
European Commission
Council of the European Community
European Parliament
European Court of Justice
European Economic and Social Committee
European Court of First Instance
European Central Bank
European Court of Auditors

IGOs (contd)
Other IGOs
General IGOs, ex UN
Regional: Council of Europe, African Union
(AU), Organization of American States (OAS)

Specialized IGOs

INTERPOL
Custom unions exhibit 1-6, p. 41
Free trade areas, ASEAN, NAFTA
Economic consultative association, OECD

NGOs
Nonprofit NGOs
International Air Transport Association
Amnesty International
International Committee of the Red
Cross

Multinational enterprises (MNEs)

F. The Rights of Individuals Under

International Law
Individuals are
1) ignored
2) treated as subjects

Traditionally ignored
State responsibility state liable for
injuries caused to foreign nationals
State A sues State B for injuries to Citizen A

Human rights
See chart

F. Rights (contd)
Law of State
Responsibility

Internation
al Human
Rights Law
Basis of Any loss of property Injuries
a claim
or personal injury
defined by
treaty
Claimant State of injured
Injured
national
national
Defenda Foreign state
Any state
nt

G. Comparison of Municipal Legal

Systems
Romano-Germanic Civil Law System
Civil law: 1) the legal system derived from Roman
and Germanic practice and set out in national law
codes, 2) as distinguished from public law, the body
of law dealing with the rights of private citizens
French Civil Code
German Civil Code
Switzerland Civil System

Anglo-American Common Law System

Precedent
Equity

Islamic Law System