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INTERNATIONAL LAW

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Maje Sanchez Cano

on 26 November 2014

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Transcript of INTERNATIONAL LAW

harmonized within the EU
INTERNATIONAL LAW
Three types of relationships
Sources of international law
Listed in Article 38(1) of the Statute of the International Court of Justice:
International conventions
International custom
General principles of law
Subsidiary means for the determination of the rules of law
DEFINITION
The body of legal rules and principles of general application which:

deals with the conduct of States and of international organizations in their international relationships with one another and with private individuals, minority groups and transnational companies

regulates the activities carried out on beyond the legal boundaries of a single State.
Traditionally, States-States relationship.
Relationships between persons increase
Private International Law
WHAT IS PRIVATE INTERNATIONAL LAW?
Private international law is a part of the international law that deals with the rights and duties of individuals of different countries and nongovernmental organizations in their international affairs
States-States
States-Persons
Persons-Persons
Public International Law
Hierarchy
Treaties and
Conventions
Equivalent of legislation
Treaties: between States. Bilateral, multilateral, regional and global.
Conventions: sponsored by international organizations
1969 Vienna Convention on the Law of Treaties
Custom
Customary law: constant usage over a period of time
Not fixed
In continual change
Two elements for a customary practice to become customary law:
Usus
Constant and recurring action by States.
Or lack of action if it is about noninvolvement.
Opino juris sive necessitatis
Requires the States to observe a customary practice only if it is one that international law requires the State to observe.
General Principles and
Jus Cogens
Courts rely on when deciding about international conflicts.
Anglo-American and Romano-Germanic
Jus Cogens
A form of international law that is recognized by the international community as a rule from which no derogation is allowed
Included: 1969 Vienna Convention on the Law of Treaties
Confirmed: 1983 Vienna Convention on the Law of Treaties.
Hague Conference on
Private International Law

Subsidiary means for the determination of rules of law
Used to prove the existence of a rule of customary law or a general principle of law.
Two: writings of highly qualified publicists and the judicial decisions of international and national courts
Since 1893 this organization has developed conventions to harmonize conflicts of law.
It is mainly focused on three areas:

- Legal co-operation and litigation

-Commercial and finance law

-Protection of children*

The Hague Convention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption
Protection against illegal adoptions.

Ensures the best interest of the child.

Ensures the respect of their main Fundamental Rights.

Protection from abduction and sale trafficking.


United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG)
The main purpose of this convention is to set a uniform and fair regime for contracts for the international sale of goods.
- Less transactions costs
-Used as a model for national contract law
-Balanced interests of buyers and sellers
-Benefits for small enterprises
United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (New York, 2008)
"Rotterdam Rules”
-Balanced universal regime to support operations of maritime contracts of carriage that may involve other modes of transport.

-Promote international trade

-Based on electronic commerce.
The Hague-Visby Rules
The Scope of International Law in Actual Practice
The practice in international courts
Municipal law subordinated.
International law superior.
The practice in municipal courts
International law correlative
International law: doctrine of incorporation or doctrine of transformation.
International Persons
Entities or legal persons that have rights and obligations under international law
States
Political entities that have a territory, a population, a government capable of entering into international relations and of controlling its territory and people.
PUBLIC INTERNATIONAL LAW
“An aspect of international law that deals
with the duties and rights of states
(and inter-governmental agencies) in their
mutual dealings”

THE LAW OF TREATIES
Recognized by other States to enter in the international community
Recognition: unilateral declarations
‘Treaty’
includes a wide range of international
agreements and contractual engagements
between States


Covenants, charters, pacts, declarations, conventions...

The Vienna Convention
on the Law of Treaties
of 1969
Came into force in 1980
By 1990 around 60 States were
parties

International Organizations
A treaty, in order to be that, must satisfy the
following criteria:

1. It should be a
written instrument
or
instruments between two or more parties
2. Those parties must be endowed with
international personality
3. It must be governed by international law
4. It should be intended to create legal
obligations


Two types: intergovernmental organizations (IGOs) and nongovernmental organizations (NGOs)
THE MAKING OF TREATIES
1. Negotiation
2. Adoption of the text of a treaty
3. Authentication of the treaty
4. Consent to be bound
5. Reservations
6. Entry into force
7. Registration

1. Negotiation
Accredited representatives of the state in question
Both parties must agree

IGOs
2. ADOPTION OF THE TEXT OF A TREATY

3. AUTHENTICATION OF THE
TREATY
Permanent organizations set up by two or more States to carry on activities of common interest.
"Constituent instrument": charter

United Nations
International Court of Justice
European Union
Supranational powers.
Institutions: European Commission, Council of the EU, European Parliament and European Court of Justice
The parties must agree about it

SIGNING INITIALLING

- Applied to carriage of goods by sea
4. CONSENT TO BE BOUND
NGOs
Traditional methods: signature,
ratification and accession

5. RESERVATIONS
A State may want to refute some provisions of the treaty

There must be a common decision among the States

6. ENTRY INTO FORCE
If the date is not specified

as soon as negotiations are done

International organizations made up of organizations other than States. Nonprofit and for-profit.
7. REGISTRATION
Every international agreement is registered as soon as it comes into force

Nonprofit
: coordinating agencies for private national groups in international affairs. Amnesty International and the International Committee of the Red Cross.
For-profit
: multinational enterprises (MNEs), are businesses operating branches, subsidiaries or joint ventures in two or more countries.
Disputes: arbitration
QUESTION
: In which part of the making of treaties a State may decide to refute one or more provisions?

A. Reservations
B. Negotiation
C. Entry into force

UNITED NATIONS
Principles:
Maintain international peace and security
Develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace

The Role of the International Law Commission (ILC)
Established by the United Nations in 1948
Recognized competence and qualifications in doctrinal and practical aspects of international law
To achieve international co-operation in solving international problems of an economic, social, cultural or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion.
To be a centre for harmonizing the actions of nations in the attainment of these common ends.
Commentaries to ILC draft articles are considered as subsidiary means for determining the rules of customary law
CHOICE OF LAW
(International trade)
Contract
governing law
BUT
International
more than one
legal order.
Courts
Which law governs the contract?
CHOICE OF LAW
Judicial proceedings
lex fori
Law of the court in which legal action is brought.
Substantive issues
lex causae
Law governing the substance of a case.
lex fori
foreign law
- They have been several times amended.

- Final "version" in 1979

Absence of a choice of law provision
Judge decides
Law of the country with which the contract is more connected.
CHOICE OF LAW
18 December 2009
Private International Law
Rome regulations
- Set the duties of carriers and shippers.
Parties can choose the governing rules of an international commercial contract.
Contract
jurisdiction or arbitration clause.
Solution:
Convention on the law applicable to contractual obligations (Rome Convention, 1980)
Court litigation
ADR (Alternative Dispute Resolution).
Arbitration

-Signed by the nine states members of the European Community

- Contractual obligations in situations involving a choice of laws.

Exceptions:
-Contracts of immovable property
-Contracts of transport of goods
-Employment contracts

Mediation
Minitrial
How can international commercial controversies be solved?
Arbitration
Definition:
A flexible, consensual process for the resolution of business disputes in a binding, enforceable manner.
Decision makers
Arbitrators or arbitral tribunal.
Alternative to court litigation.
73% of cross-border disputes solved with this method.
What are the Advantages of Arbitration?
Procedural flexibility.
Neutrality.
Selection of the arbitrators.
Time and costs.
Confidentiality.
Final and binding decisions.
Recognition and enforcement of
awards
(New York Convention).
Tip! award = laudo
Expectations
Reality
No longer necessarily less expensive.
It deprives parties of summary procedures of courts of justice.
Many arbitrators have no the technical competence they should.
Why is it used?
Main reason: It avoids the complexity and uncertainties of foreign litigation.
Arbitration ICC: How does it work?
CHOICE OF THE LAW: LEX ARBITRI
Lex arbitri :
law governing the arbitration proceedings.
often not the same as the law governing the contract.
Scope:
Differs from country to country.
No generally accepted catalogue of issues governed by it.
Gabriel M.Wilner
:
a)
the conflicts rules which determine the
lex causae.
b)
the need to give reasons for the award.
c)
the need to base an award upon substantive rules of law.
d)
judicial review of the arbitration's decision.
CHOICE OF LAW: LEX ARBITRI
It can be:
The arbitrator inquire into the intent of the parties.
When there is no evidence of it
Arbitrator: guided by the objective of producing an enforceable award.
but there is still another possibility...
CHOICE OF THE LAW: LEX ARBITRI
Arbitrator
uses the general principles of procedureor international law.
ICC
International United Nations Conference for International Trade Law (UNCITRAL)
Award unattached to any national system:

"Floatig" or "Drifting" award.
BUT
LEX ARBITRI: DENATIONALIZED ARBITRATION AWARDS
Problem: some jurisdiction recognize floating awards but others do not.
Case of
Götaverken v. Libyan National Maritime Transport Co.
Despite it, the major portion of international commercial arbitration is detached from national legal systems.
Need to ensure that proceedings conducted outside the national legal system will be recognized
urgent matter for an international convention.
Just a couple of questions for you :)
What is the name of the law governing judicial proceedings in Private International Law?
a) Lex fori
b) Lex arbitri
c)Lex causae
What is the main reason for which arbitration is used?
a) Because the parties avoid the uncertainties of foreign law.
b) Because the parties want to get along.
c) Because it is cheaper than court litigation.
Well done!
The law of the situs of arbitration.
The law of the country of which the arbitrator is a national.
Another law.
The elements for a customary practice to become customary law are:
a)
Ratio decidendi
and
Obiter dicta

b)
Usus
and
Opino juris sive necessitatis

c)General principles of law and
Jus cogens
Which are the most important IGOs?
1- A party communicates it to the General Secretary of the International Court of Arbitration in Paris.

2-The Secretary General requires to the plaintiff an advance payment.

3-Commencement of the proceedings: arbitrators and terms agreed by the parties.

4-The arbitration takes place.

5-A decision is hold by the arbitrators. (max. 6 months).
True or False:
Jus cogens is a form of international law that is recognized by the international community from which derogation is allowed.


Amnesty International is a nonprofit Nongovernmental Organization (NGO)
ORGANS OF THE UNITED NATIONS
The General Assembly
193 Members

International issues
The Security Council
Maintain international peace and security
The Economic and Social Council
54 members

Social, economical, cultural and geographical interests

Africa, Asia, Latin America, Western Europe and Eastern Europe
The Trusteeship Council
Suspended its operations on 1st November of 1994
The Secretariat
One of the principal organs

Comprises a Secretary-General: administrative functions, executive functions, power of investigation, power to act in interests of international security and peace and acts as a mediator

Javier Pérez de Cuellar: 5th Secretary-General between 1982 and 1991
The International Court of Justice (ICJ)
HUMAN RIGHTS
Restrictions in the treatment of aliens


jurisdiction of the State

Great War no protection of human rights

Second World War demand for international recognition and enforcement of fundamental rights
THE CHARTER OF THE UNITED NATIONS
Reaffirm their faith in:

The dignity and worth of the human person

Equal rights of men and women

Equal rights of nations
UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948
Adopted by the General Assembly

Wide range of human rights and freedoms:

Traditional civil and political rights: prohibition of slavery, detention and exile, discriminations...

Economic, cultural and social rights: right to work, social security, education...
QUESTION: When did a demand for the recognition and enforcement of fundamental rights and freedoms of human beings started?

1. Never

2. After Great War

3. Second World War
First stage of the conclusion
Consent of all the States
COMPLETE
Private international law deals with the rights and duties of individuals of different countries and non _________ organizations in their _________ affairs
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