Transcript International, Foreign & Comparative Law Research

1. General Introduction
International & Foreign Law
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Introduction to International, Foreign &
Comparative Law Research
•
•
•
•
Public International Law
– Treaty Search
– Human Rights Search
International Trade Law
– WTO
– CISG
Regional Organizations
– European Union as an example
Foreign Law Research
– Common Law v. Civil Law
– European Countries
•
Comparative Law Research
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Definitions
• International Law
– Public International Law
– Private International Law (Conflicts of Law)
• Yukos case
• Foreign Law
• Comparative Law
Not to expect everything online.
Where to start?
Hornbooks, Treatises, Nutshells etc.
Law review articles
How to deal with abbreviations?
Blue Book or Biebers
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Common Law v. Civil Law
• Common Law Countries
U.S., UK, Commonwealth
• Civil Law Countries
Continental Europe, Asian, Middle East, Latin
America
• Mixed
Some African Counties
A Great Source for overview: Foreign Law-Current
Sources of Codes and Legislation in Jurisdiction
of the world, by T. Reynolds & A. Flores (Call#:
K38 .R49 1988 Reference Collection)
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Source:Copyright ©2002, William M.K. Trochim, All Rights Reserved
http://www.socialresearchmethods.net/kb/dedind.htm
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Foreign Law Research
Not as easy as finding U.S. law
Useful Sources
Thomas H. Reynolds & Arturo A. Flores, Foreign LawCurrent Sources of Codes and Legislation in
Jurisprudence of the World (K38 .R49 1989, Reference
Collection)
Online Research Guide
Muligan and Liu’s Foreign Primary Law on the Web
LLRX.com Resource Center - Comparative and Foreign Law
Foreign and International Law Sources on the Internet: Annotated
LexisNexis (Legal (excluding U.S.) )
Reference Librarians
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Comparative Law
• For academic research, not for practice
• Occasionally play a role in the U.S.
Supreme Court ROPER V. SIMMONS (03633) 543 U.S. 551 (2005)
112 S. W. 3d 397, affirmed
Audio Clip: Oral Argument (MP3/SMIL)
minutes 12--16
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Different Search Strategies
• For common Law jurisdictions
– Cases
– Statutes
– Secondary Sources: Leading treatises, law reviews
• For civil law jurisdictions
– Civil code
– Occasionally cases, but don’t expect to get much from
the contents
– Secondary Sources: Leading Treatises, law reviews
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Sources
Online
Free (google.com)
Subscription (westlaw, lexis etc)
Books and Journals in this library
UH Library Catalogue
Worldcat
Books from other Libraries
Interlibrary Loan Service
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2. European Union Law
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Economic Integration: How close
can sovereign states be?
Free Trade Area
Custom Union
Single Market
Economic Union
Sovereign State
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Levels of Economic Integration
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Regional Organizations
• European Union (EU)
as an example
– How regional
TREATIES reshaped
war-torn Europe
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March 24, 2005 Houston
25 members, 450 million population
May 1, 2004
Cyprus, the Czech
Republic, Estonia,
Hungary, Latvia,
Lithuania, Malta,
Poland, Slovakia
and Slovenia
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European Union
EU 2002
ECSC 1951
Rome Treaty 1957
Signal European Act
1986
Common
Foreign
Security
Justice &
Home
Affairs
Policy
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Separation of Powers?
•
•
•
•
Commission—executive?
Council—Legislative?
Parliament—Legislative?
Court--Judiciary
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Eu-Lex, Lexis and WestLaw
• Microsoft Decision March 24, 2004
• Cases v. Decisions
• Primary v. Secondary
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3. Chinese Law
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Basic Facts about China
• Population
– China 1.4 billion
– U.S. 290 million
– EU 450 million
• Size: Which country is bigger, China or the U.S.?
– CIA http://www.cia.gov/cia/publications/factbook/geos/ch.html U.S. is
bigger!
– China.org http://www.china.org.cn/e-changshi/index.htm China is bigger!
• Nationalities: minorities 56; majority 1 (Han)
• Provincial governments
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–
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–
–
4 large cities: Beijing, Shanghai, Tianjin, Chongqing
23 provinces
5 autonomous regions
2 special administrative regions (SAR): Hong Kong and Macau
Taiwan
• Neighboring States
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US-China Trade Statistics and China's World Trade Statistics
http://www.uschina.org/statistics/tradetable.html
Trade in Goods (Imports, Exports and Trade Balance) with
China
http://www.census.gov/foreign-trade/balance/c5700.html
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Central Government
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CCP in perspective
Mr. Hu, Secretary General
Central Politburo (Standing Committee)
Central Committee
National Party Congress
The Chinese Communist Party (CCP)
NPC and its Standing Committee
Other Institutions
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Who is the Chief?
Party Chief
Military Chief
President of the PRC
“Political power grows out of the barrel of a gun.”
-- Mao
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Relationships of the Central and
Local Governments
Principle: Democratic Centralism
– The individual is subordinate to the group;
– The Minority is subordinate to the majority;
– The Lower is subordinate to the higher level;
– The Local is subordinate to the central.
Any problem with this principle?
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Name maters
• NPC ---Basic Laws
• NPC (NPCSC)---Other Laws
• State Council---Admin. Regulations
– Ministries---Ministerial Rules
• Local NPC---Local Regulations
• Local Gov---Local Admin. Rules
– Local Dept.---Local Dept. Rules
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International law as Chinese law
– Self Executing
– None Self Executing
• International Covenant on Economic, Social and
Cultural Rights
China
U.S.
Signature: 10/27/1997
10/5/1977
Ratification: 3/27/2001
NO
• International Covenant on Civil and Political Rights
Signature: 10/5/1998
10/5/1977
Ratification: NO
6/8/1992
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Judgments
• Limited authority
• Mechanically apply the law
• Cheng Kejie Case Vice NPC chairman
sentenced to death on corruption charge.
See handout.
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Judicial Independence Compared
• Court budget
http://www.npr.org/templates/story/story.php?sto
ryId=4598172 (Audio Clip)
Supreme Court, Congress Clash on Rulings
by Nina Totenberg
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Factors affecting Judicial
Independence
• Lawyers
• Legal scholars
• Officials, persons with connections to
officials
• Mediation committees
• Neighborhood committees
• Work Unites (Danwai)
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Enforcement of Judgment
• Court in charge of enforcement
• Low rate: 40 %
• Local Protectionism
– Guangdong company sought enforcement of
a $900,000 judgment against a Hainan
company in 1996. Hainan court suspended
the judgment with out explanation.
• Judgment on Sale, jailed for seeking
enforcement, etc.
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Key Source for Chinese Law
Research
• Lawinfochina (library subscription)
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4. Essential Sources for F/I
Research
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Leading Treatises and Library Tour
• Three Leading Treatises
– Reynolds & Flores, Foreign Law—Current
Sources of Codes and Legislation in
Jurisdictions of the World. (looseleaf) (Hein)
Reference Collection: K38. R49
– Germain’s Transnational Law Research
(looseleaf) (Transnational Publisher)
Reference Collection: K85 .G47
– Cohen, Berring & Olson, How to Find The
Law (West) Reserve: KF 240 .H6 1989
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5. The English Legal System
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English Legal System
“It is not a faultlessly coherent and single, logically
developed system. It grew piecemeal and various
parts of it have been reformed and reshaped to
suit the perceived needs of the time.”
“Most Civil cases are not hear in the civil courts at all
but one of the major alternative forums which have
proliferated in the 20th Century.”
Reference: Darbyshire, English Legal System 6th
edition p.1
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The Court Structure
• Criminal Courts
– Magistrates’ courts
– The Crown Court
– The Queen’s Bench Division of the High Court
The Court of Appeal-Criminal Division
– The House of Lords (Appellate Committee)
– The Privy Council (Judicial Committee)
– The European Court of Justice
– The European Court of Human Rights
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The Court Structure
• Civil Courts
– Magistrates’ Court
– The County Court
– The High Court
– The Court of Appeal-Civil Division
– The House of Lords (Appellate Committee)
– The Privy Council (Judicial Committee)
– The European Court of Justice
– The European Court of Human Rights
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Alternative to the Courts
• Tribunals
• Arbitration
– by contract
– by reference from the court
– By statute
• Alternative Dispute Resolution (ADR)
– Mediation
– Conciliation
– Arbitration
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Sources
• Acts of Parliament
– “Parliamentary sovereignty precludes the courts’
questioning Acts of Parliament where there is no
conflict with EC Law.”
• EC legislation
• The European Convention of Human Rights
• Precedent
–
–
–
–
State of law
Ratio decidendi (reasoning)
In a court whose decisions are binding
Obiter dictum is not binding
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Interpretation of Statutes
• Need for interpretation
–
–
–
–
–
Ellipsis
Broad Terms
Politic uncertainty
Unforeseeable developments
Miscellaneous drafting errors
• Rules of interpretation
– The Literal Rule
– The Golden Rule (permitting to depart from giving
their ordinary natural meaning)
– The Mischief Rule (much wider approach)
– Contextual approach
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6. NAFTA
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Early Development
• Free trade as an alternative of annexation.
• Elgin-Marcy Treaty of 1854—free trade agreement
between U.S. and Canada. Not implemented because
of civil war.
• In 1911, U.S. proposed trade agreement, but rejected
by the Canadian Parliament.
• Protectionism in the 1920s-1930s. Trade negotiations
after WWII was not successful.
• GATT (1947) provided alternative that discouraged
trade talks between U.S. and Canada.
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From CFTA to NAFTA
•
In 1986, Uruguay Round was initiated, but seemed endless. Frustrated with the
progress, the two countries began to engage bilateral trade negotiation.
• CFTA took effect January 1, 1989.
• After CFTA, Mexican Government looked for alternatives, but without success.
Finally decided to negotiate with the U.S.
Negotiation
– 1n 1991, the negotiations to create NAFTA began.
– In 1992, President Bush (lame-duck) signed the NAFTA agreement.
– Clinton added two supplemental agreements: Labor and Environment.
Ratification
– U.S.: In 1993, the Senate ratified the agreement over fierce opposition: Public
Law No. 103-182 The NAFTA Implementation Act expressly provides that the
NAFTA agreement does not modify U.S. law except as provided for the by the
Act.
– Canada: Mulroney Government approved the NAFTA agreement before it lost
election.
– Mexican: No difficulty at all.
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Impact of NAFTA
• Canada: unemployment
• U.S.: Labor and Environment
• Mexico: Maquiladoras
– Rules of Origin
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NAFTA
•
Goods
– Deadlines for elimination of tariffs on goods:
• U.S. and Canada, 1998
• Mexican, 2003
• By 2008, all North American trade in goods is duty free.
•
Services
– CFTA— “Positive List”; NAFTA –- “Negative List” (broader)
– Foreign Legal Consultants
– NAFTA Business Visas: preferential treatment for citizens in three countries.
•
Investment
– Article 11
• Minimum Standard of treatment
• Prohibition of expropriation
– Metalclad Corp. v. United Mexican States
•
IP
– Copyright, patent, trademarks
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Dispute Settlement
• Chapter 19—antidumping and
countervailing duty disputes
• Chapter 20 general dispute settlement
procedures
• Chapter 11 investor-state arbitration
procedures
• Chapters 6, 9, 10 Environmental and labor
cooperation disputes
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Panels
• Binational panels
• Each party to the dispute chooses two
panelists; the fifth is chosen either by
agreement or by lot if no agreement.
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Research
•
•
•
•
NAFTA Agreement
Panel Decisions
Domestic Cases
Arbitration Rule and Cases
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7. Public International Law
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Public International Law
Sources
Primary and Secondary Sources
• International Treaties
• International Customary Laws
• The general principles of law recognized
by civilized nations
• Judicial decisions, teachings of most
highly qualified scholars (persuasive)
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Treaty Search
• Treaties are agreements between or among
sovereign States.
• Treaties have other names: agreements,
covenants, conventions, charters, protocols,
declarations, memoranda of understanding,
modus vivendi and exchange of notes.
• Bilateral and Multilateral Treaties
• Self executing v. Non-self executing
– Trade treaties (self executing)
– Human Rights (non-self executing)
• Executive agreements (U.S.).
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Treaty Search Process
• Information on signatories, ratifications, and
reservations
– Example: Kyoto Treaty
– International Covenant on Civil and Political Rights
(ICCPR) Article 6 (5)
• 5. Sentence of death shall not be imposed for crimes
committed by persons below eighteen years of age and shall
not be carried out on pregnant women.
• Legislative History
• Judicial Interpretations
• Effective Date, Validity
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Finding treaties to which U.S. is a party
Statutes At Large
U.S.T. (KZ235.3.U55) official
20 yr
1945
1950
1778
Present
Bevans (with an
index)(KZ236 1776b )
9 yr
T.I.A.S. (KZ235.32 .U54)
U.S.T.: United States Treaties and Other International Agreements
T.I.A.S.: Treaties and Other International Acts Series
Bevans: Treaties and Other International Agreements of the United States
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Finding treaties to which U.S. is a party
Hein’s UST Current Services (1990-date) microfiche
Consolidated Treaties & Int’l Agreements (1990-date) print
Heinonline Treaty Library
ILM (1962-date) in print
Statutes At Large
U.S.T. (KZ235.3.U55) official
20 yr
1945
1950
1778
Present
Bevans (with an
index)(KZ236 1776b )
9 yr
T.I.A.S. (KZ235.32 .U54)
U.S.T.: United States Treaties and Other International Agreements
T.I.A.S.: Treaties and Other International Acts Series
Bevans: Treaties and Other International Agreements of the United States
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Sources for Treaty Search
•
•
•
•
•
•
UST, TIAS, Bevans, Statutes At Large
Westlaw (USTREATIES)
LexisNexis (USTRTY)
International Law Materials (ILM) (Selected Treaties)
USCA and USCS (a few important treaties)
Bevans: Treaties and Other International Agreement of
the U.S. of America, 1776-1949
• Websites
–
–
–
–
UN Texts of Recently Deposited Multilateral Treaties
UN Treaty Collection (Law Library Subscription)
State Dept. Treaty in Force
Thomas (Treaties Section)
• Hein online (Law Library Subscription)
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Indexes
• State Dept. Treaty in Force (Annually)
– Also in Print (Reference)
– Hein on Line
• Commercial indexes:
– Kavass: Guide to the United States Treaties in Force
(Hein on Line)
– In print: Kavass, Current Treaty Index-United States
Treaty Index Consolidation (KZ 235.U54 C.2)
• UN Treaty Series Database
• Westlaw and Lexis (Boolean Search)
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Verification and Updating
State Dept. Treaty in Force
State Dept. Treaty Actions
UN Treaty Collection (Status Search, signatory,
ratification, reservation etc.)
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8. The United Nations
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Historical Milestones
• Peace of Westphalia 1648
– The principle of the sovereignty of nation-states and
the fundamental right of political self determination
– The principle of (legal) equality between nation-states
– The principle of pacta sunt servanda (treaties are to
be observed)
– The principle of non-intervention of one state in the
internal affairs of another state
• Final Act of the Congress of Vienna 1815
– Established diplomatic protocol
– Condemned the slave state
– Established the principle of free and unimpeded
navigation on international rivers
• League of Nations 1920
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• United Nations 1945
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United Nations Main Bodies
•
•
UN Charter, October 24, 1945 http://www.un.org/aboutun/charter/index.html
191 members
•
•
Organization Chart: http://www.un.org/aboutun/chart.html
General Assembly
– Subsidiary Organs
Committee on Information
Human Rights Council
•
Security Council
–
–
–
–
Peacebuilding Commission
Counter-terrorism Committee
Al-Qaida and Taliban Sanctions Committee
1540 Committee
•
Economic and Social Council
•
Trusteeship Council
•
Secretariat
•
International Court of
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Binding Character of UN resolution
• GA resolutions: Not binding
• Security Council Resolutions: Binding
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UN Security Council
• Five Permanent Members
• “A conviction has grown, among nations large and small, that
an opportunity has been regained to achieve the great
objectives of the Charter…” UN Secretary Boutros BoutrosGhali, 1992
• “There has been a regrettable tendency for the Security
Council not to be involved in the efforts to maintain
international peace and security.” UN Secretary Kofi Annan,
1999
• “Will the United Nations serve the purpose of its founding, or
will it be irrelevant?” George W. Bush, 2002
• In a 1994 speech at the liberal World Federalist Association,
John Robert Bolton declared that “There is no such thing as
the United Nations.” To underscore his point, Bolton said: “If
the UN secretary building in New York lost ten stories, it
wouldn't make a bit of difference.”
--Bolton, the U.S. Permanent
Representative
to the United 64
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Foreign Law
Nations.
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Human Rights Council
• U.S. refuse to run for the UN Human
Rights Council
• Bolton: “I believe rather strongly that our
leverage in terms of the performance of
the new council is greater by the U.S. not
running and sending the signal ‘this is not
business as usual’ this year than if we
were to run.”
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9. The International Court of
Justice
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International Court of Justice (ICJ)
• International Court of Justice
Peace Palace
2517 KJ The Hague
The Netherlands
• 15 Judges
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ICJ Jurisdiction
The Parties
Only States may apply to and appear before the Court. The Member States of
the United Nations (at present numbering 191) are so entitled.
Jurisdiction
The Court is competent to entertain a dispute only if the States concerned have
accepted its jurisdiction in one or more of the following ways:
1. by the conclusion between them of a special agreement to submit the
dispute to the Court;
2. by virtue of a jurisdictional clause, i.e., typically, when they are parties to
a treaty containing a provision whereby,in the event of a disagreement
over its interpretation or application, one of them may refer the dispute
to the Court. Over three hundred treaties or conventions contain a
clause to such effect;
3. through the reciprocal effect of declarations made by them under the
Statute whereby each has accepted the jurisdiction of the Court as
compulsory in the event of a dispute with another State having made a
similar declaration.
The declarations of 67 States are at present in force, a number of them having
been made subject to the exclusion of certain categories of dispute.
In cases of doubt as to whether the Court has jurisdiction, it is the Court itself
which decides.
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ICJ Procedure
The procedure of the ICJ followed by the Court in contentious cases is defined
in the ICJ Statute:
http://www.icj-cij.org/icjwww/ibasicdocuments.htm
Official Languages: English and French
• After the oral proceedings the Court deliberates in camera and then delivers
its judgment at a public sitting. T
• The judgment is final and without appeal. Should one of the States involved
fail to comply with it, the other party may have recourse to the Security
Council of the United Nations.
• The Court discharges its duties as a full court but, at the request of the
parties, it may also establish a special chamber. within its jurisdiction.
• Since 1946 the Court has delivered 92 Judgments on disputes concerning
inter alia land frontiers and maritime boundaries, territorial sovereignty, the
non-use of force, non-interference in the internal affairs of States, diplomatic
relations, hostage-taking, the right of asylum, nationality, guardianship, rights
of passage and economic rights.
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ICJ Decisions
• http://www.icj-cij.org/icjwww/idecisions.htm
• Avena Case Avena and other Mexican
Nationals (Mexico v. United States of
America)
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10. Special Session on North
Korea
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Special Session on North Korea
• 1. Whether has NK breached international law? If yes, what law?
Why is NK obligated not to develop nuclear bombs, while some
other nations have already had such weapons?
• 2. What could have been done to prevent the "provocative test"?
• 3. What recourses can the concerned parties (U.S., China, Russia,
Japan and South Korea) take to punish NK?
• 4. Why is it difficult for China to cut off food and energy aid to NK
even after the test?
• 5. What options does the U.S. have to deal with this issue?
• 6. How would Republicans and Democrats react to the test in next
few weeks? Is any impact of the provocative test on the upcoming
election in November?
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Research Method
• Where to start?
– Primary Sources?
– Secondary Sources?
• The value of news analysis
– Accurate?
– In-depth?
– Comprehensive?
• The value of scholarly writings
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UN Charter Chapter 7 and the
Power of the Security Council
•
Article 39 The Security Council shall determine the existence of any threat to the peace,
breach of the peace, or act of aggression and shall make recommendations, or decide what
measures shall be taken in accordance with Articles 41 and 42, to maintain or restore
international peace and security.
•
Article 40 In order to prevent an aggravation of the situation, the Security Council may,
before making the recommendations or deciding upon the measures provided for in Article
39, call upon the parties concerned to comply with such provisional measures as it deems
necessary or desirable. Such provisional measures shall be without prejudice to the rights,
claims, or position of the parties concerned. The Security Council shall duly take account
of failure to comply with such provisional measures.
•
Article 41 The Security Council may decide what measures not involving the use of armed
force are to be employed to give effect to its decisions, and it may call upon the Members
of the United Nations to apply such measures. These may include complete or partial
interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other
means of communication, and the severance of diplomatic relations.
•
Article 42 Should the Security Council consider that measures provided for in Article 41
would be inadequate or have proved to be inadequate, it may take such action by air, sea,
or land forces as may be necessary to maintain or restore international peace and security.
Such action may include demonstrations, blockade, and other operations by air, sea, or
land forces of Members of the United Nations.
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The Security Council (1)
• Membership in 2006
The Council is composed of five permanent
members — China, France, Russian Federation,
the United Kingdom and the United States —
and ten non-permament members (with year of
term's end):
• Argentina (2006)Greece (2006)Qatar
(2007)Congo (Republic of the) (2007)Japan
(2006)Slovakia (2007)Denmark (2006)Peru
(2007)United Republic of Tanzania (2006)Ghana
(2007)
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The Security Council 2
• The Presidency of the Security Council is held in turn by the
members of the Security Council in the English alphabetical order of
their names. Each President holds office for one calendar month.
• Ten non-permament members, elected by the General Assembly for
two-year terms and not eligible for immediate re-election. The
number of non-permanent members was increased from six to ten
by an amendment of the Charter which came into force in 1965.
• Each Council member has one vote. Decisions on procedural
matters are made by an affirmative vote of at least nine of the 15
members. Decisions on substantive matters require nine votes,
including the concurring votes of all five permanent members. This
is the rule of "great Power unanimity", often referred to as the "veto"
power.
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Nuclear Non Proliferation Treaty
• Opened for signature in 1968, the Treaty
entered into force in 1970. A total of 187 parties
have joined the Treaty, including the five
nuclear-weapon States.
• The Treaty establishes a safeguards system
under the responsibility of the International
Atomic Energy Agency (IAEA).
• Article VIII, paragraph 3, provides a review of the
operation of the Treaty every five years.
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Non Proliferation Treaty
• First pillar: non-proliferation
• Second pillar: disarmament
• Third pillar: the right to peacefully use
nuclear technology
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The comprehensive Nuclear
Test-Ban Treaty
• The Treaty was opened for signature on
24 September 1996 and it will remain
open for signature until its entry into force,
in accordance with article XI.
•
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China’s Options
• Major provider of food and fuel
• Loss of face
• Delicate relations with the U.S.
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10. The International Criminal
Court
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International Criminal Court (ICC)
• The International Criminal Court was established
by the Rome Statute of the International Criminal
Court, on 17 July 1998 by the United Nations
Diplomatic Conference of Plenipotentiaries on
the Establishment of an International Criminal
Court (Rome Statute).
• Binding only on those States which formally
express their consent to be bound by its
provisions. These States then become “Parties”
to the Statute.
• Entered into force on 1 July 2002
• Members: 100 States
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ICC and Rome Treaty
• The ICC is a court of last resort. It will not act if
a case is investigated or prosecuted by a
national judicial system unless the national
proceedings are not genuine.
– for example if formal proceedings were undertaken
solely to shield a person from criminal responsibility.
• Unable or unwilling
• The ICC only tries those accused of the gravest
crimes.
• The jurisdiction and functioning of the ICC are
governed by the Rome Statute.
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ICC Jurisdictions and Admissibility
• Jurisdiction
– Temporal v. Retroactive Jurisdiction
• does a court has the power to try crimes committed before the court was
established?
– Personal Jurisdiction
• Minors
– Subject matters
• Genocide
• Crimes again humanity
• War crimes
Drug related crimes and terrorism were excluded from the jurisdiction
• Admissibility
– The principle of complementaity: article 10—the ICC shall be
complementary to national criminal jurisdictions
– Article 17: ICC is required to rule a case inadmissible when it is being
appropriately dealt with by a national justice system.
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ICC Structure
•
Judges
– Elected by the Assembly of States Parties for a term of nine years. One judge of
any given nationality at any one time.
•
Prosecutor
– Elected by secret ballot of absolute majority of the Assembly of States Parties.
•
Ethical matters
– Removal of a judge first requires a recommendation by 2/3 majority of other
judges. Then 2/3 majority of the States parties must agree
– Removal of the Prosecutor requires a majority vote.
•
•
Assembly of States Parties
Funding
– UN does not provide funding.
– Based on assessed contributions upon States Parties, following the basic scale
already in use in the UN, a calculation that considers population and relative
wealth.
– Voluntary donations
•
Working languages: English and French
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ICC: Common Law v. Civil Law
• Adversarial trial
• Article 63 (6) (d): “trial chamber has the
power to order the production of evidence
in addition to that already collected prior to
the trial or presented during the trial by the
parties”
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U.S. and the ICC
• Article 98
Cooperation with respect to waiver of immunity and consent to
surrender
1.
The Court may not proceed with a request for surrender or
assistance which would require the requested State to act
inconsistently with its obligations under international law with
respect to the State or diplomatic immunity of a person or property
of a third State, unless the Court can first obtain the cooperation of
that third State for the waiver of the immunity.
2.
The Court may not proceed with a request for surrender
which would require the requested State to act inconsistently with its
obligations under international agreements pursuant to which the
consent of a sending State is required to surrender a person of that
State to the Court, unless the Court can first obtain the cooperation
of the sending State for the giving of consent for the surrender.
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U.S. and ICC
• Bolton’s Speech
– Two flaws: substantive and structural
•
•
•
•
Broad power to interpretation
Crimes can be added
Crimes vaguely defined, such as “aggression”
Judges and the prosecutor: lack of accountability and checks
and balances
• Interference with the Security Council’s work
• No deterrence
• Alternatives
– Truth and Reconciliation Commission model
– Domestic trial model
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11. Human Rights
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Human Rights Search: Basic
Documents
• United Nations Charter 1945 Article 55
• Universal Declaration of Human Rights
1948
• International Covenant on Civil and
Political Rights 1966
• International Covenant on Economic,
Social and Cultural Rights 1966
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Human Rights Search:
Recommended Sources
• University of Minnesota Law Library HR
Website
• United Nations High Commissioner for
Human Rights
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The Humanitarian Law of Armed
Conflict: Sources of law
• The Hague Conventions and Declarations
of 1907
• The Nuremberg Charter of 1945
• The Geneva Conventions of 1949
• Protocol Additional to the Geneva
Conventions of 1949
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Geneva and Hague Conventions
• Protection of Individual
–
–
–
–
Combatants
Wounded , Sick and Shipwrecked Combatants
POW
Civilians
• Protection of Property
– Military Installations
– Civilian Populace
– Areas with Special Protection
Lawyer Discusses Implications of New Detainee Law NPR audio
Yoo Defends Detainee Measures as 'Rules of War‘NPR audio
Letters: Strong Response to John Yoo Interview NPR audio
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Regional Human Rights Law and
Institutions
• European System
– The European Convention on Human Rights
– European Commission of Human Rights
– European Court of Human Rights (not to be confused with ECJ,
they are difference court!)
– Committee of Ministers of the Council of Europe
• Inter-American System
– The OAS Charter of 1948
– The American Declaration of the Rights and Duties of Man of
1960
• African Regional System
– African Charter of Human and People’s Rights of 1986
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European Convention of Human
Rights
• Don’t mistake it for EU. ECHR and EU are
related, but difference organizations.
– The Council of Europe
– The Council of European Union
• ECHR
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Peck v. United Kingdom
European Convention of Human Rights
ARTICLE 8
• Everyone has the right to respect for his private and family life, his home
and his correspondence.
• There shall be no interference by a public authority with the exercise of this
right except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or the
economic well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the rights and
freedoms of others.
ARTICLE 13
• Everyone whose rights and freedoms as set forth in this Convention
are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by
persons acting in an official capacity.
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ENFORCEMENT OF HUMAN RIGHTS LAW IN THE U.S.
AND OTHER DOMESTIC COURTS
• Because the United States has failed to ratify so many human rights
treaties, enforcement of human rights largely depends on the
incorporation of custom into U.S. law by the courts. (Ref. Linda A.
Malone, International Human Rights)
• Hand out (excerpt from Malone’s book: International Human Rights,
2002)
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12. The World Trade
Organization
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From GATT to WTO
• GATT 1947
– ITO failed
• WTO 1995
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Most Favored Nation Treatment
• Article I
• General Most-Favoured-Nation Treatment
1. With respect to customs duties and charges of any kind imposed
on or in connection with importation or exportation or imposed on
the international transfer of payments for imports or exports, and
with respect to the method of levying such duties and charges,
and with respect to all rules and formalities in connection with
importation and exportation, and with respect to all matters
referred to in paragraphs 2 and 4 of Article III, any advantage,
favour, privilege or immunity granted by any contracting party to
any product originating in or destined for any other country shall
be accorded immediately and unconditionally to the like product
originating in or destined for the territories of all other contracting
parties.
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Coverage
• http://www.wto.org/english/info_e/site_e.ht
m
• GATS
• TRIPS
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Trade Barriers
• Tariffs and Customs
• Non-tariff Trade Barriers
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WTO and China
•
•
•
•
•
•
•
•
1948 GATT goes into effect (China is a contracting party)
1950 China withdraws from GATT
1982 Observer Status
1986 China intents to join GATT
1989 Application suspended
1994 Uruguay round (China is a signatory.)
1999 U.S. –China agreement on China’s accession
2001 Membership
(Reference: Karen Kalverson, China’s WTO Accession:
Economic, Legal and Political Implications)
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Concession and Accession
•
•
•
•
•
•
•
Market access in goods
Market access in services
Agriculture
Subsidies
Transparency-related commitments
Non-market economy treatment in anti-dumping cases
Discriminatory safeguard rule
(Reference: Karen Kalverson, China’s WTO Accession:
Economic, Legal and Political Implications)
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Antidumping
• Luoyang case 347 F. Supp. 2d 1326
– Chevron test
– Statutory background
– Normal Value
• Surrogate values
• Whether welfare and labor costs should be
included in the valuation
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Luoyang Case
• Tapered Roller
Bearings
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13. International
Environmental Law
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International Environmental Law
Issues
• Global Climate Change
– Ozone Depletion
– Antarctica
– Global Health
• Toxic and Hazardous Substances
– Legal and Illegal Dumping
• Pollution
– Land Based Pollution
– Vessel Based Pollution
– Trans-boundary Water/Air Pollution
• Desertification
• Nuclear Damage
• Population
• Biodiversity
• Conservation of Marine Living Resources
Reference: Guruswamy, International Environmental Law (West, 2003)
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Implementation
•
International Organizations
–
–
–
–
–
•
Regional Organizations
–
–
–
–
•
UN Environment Development (UNED)
World Bank
International Court of Justice
International Law Commission
IAEA
EU
OECD (Economic Cooperation and Development)
OAS (Organizations of American States)
South Pacific Regional Organizations
Specific Treaty Organizations
– Conferences of parties
•
Non-Governmental Organizations (NGOs)
– World Conservation Union
– The World Wildlife Fund
– Green Peace
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Compliance Mechanisms
• Judicial Remedies
• Diplomatic Avenues
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From UN Convention to Kyoto
Protocol
• The UN Framework Convention on
Climate Change (FCCC), The Conference
of Parties (COP-1, Rio de Janeiro, 1992)
• COP-2, Geneva, 1996
• COP-3, Kyoto, 1997
• …
• COP-12, Nairobi, 2006
UNFCCC website http://unfccc.int/2860.php
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Kyoto Protocol
The provisions of the Kyoto Protocol and its rulebook
The 1997 Kyoto Protocol shares the Convention’s objective,
principles and institutions, but significantly strengthens the
Convention by committing Annex I Parties to individual, legallybinding targets to limit or reduce their greenhouse gas emissions.
Only Parties to the Convention that have also become Parties to the
Protocol (i.e by ratifying, accepting, approving, or acceding to it) will
be bound by the Protocol’s commitments. 165 countries have ratified
the Protocol to date. Of these, 35 countries and the EEC are
required to reduce greenhouse gas emissions below levels specified
for each of them in the treaty. The individual targets for Annex I
Parties are listed in the Kyoto Protocol’s Annex B. These add up to a
total cut in greenhouse-gas emissions of at least 5% from 1990
levels in the commitment period 2008-2012.
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Emission Trading System
Two sources for the explanation of ET system
• UK
http://www.defra.gov.uk/Environment/climatecha
nge/trading/index.htm
• EU
http://europa.eu/rapid/pressReleasesAction.do?r
eference=MEMO/05/84&format=HTML&aged=1
&language=EN&guiLanguage=en
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Waste Dumping
Ivory Coast Tragedy Exposes Toxic Flow to
Poor
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Environmental Degradation in China
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Songhua Spill
• China's Government Cracks Down After
Toxic Spill
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14. United Nations Convention
on Contracts for the International
Sale of Goods (CISG)
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CISG Zapata Case
• CISG: Pace University Law School Website, the best
source of CISG research http://www.cisg.law.pace.edu/
• Article 74 CISG
Damages for breach of contract by one party consist of a
sum equal to the loss, including loss of profit, suffered by
the other party as a consequence of the breach. Such
damages may not exceed the loss which the party in
breach foresaw or ought to have foreseen at the time of
the conclusion of the contract, in the light of the facts and
matters of which he then knew or ought to have known,
as a possible consequence
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Key Source for CISG Search
• Pace University School of Law CISG Site
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15. International Arbitration
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Two basic types of international
commercial arbitrations
• Ad hoc
– Goodwill, flexibility, speedy, cheap
• Institutional
– Supervisory services, a stable of experienced
arbitrators and a fixed fee schedule (higher)
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Institutions
• WTO: Dispute settlement
• WTO Archive list of panel and Appellate Body reports
• World Bank: International Center for Settlement of Investment
Disputes (ICSID) was created in 1966 to facilitate the settlement of
investment disputes between governments and foreign investors.
– List of Contracting States
ICSID Basic documents
ICSID cases
List of bilateral investment treaties
• ICC (International Chamber of Commerce)
• Permanent Court of Arbitration (PCA) PCA was founded in The
Hague in 1899 during the first Hague Peace Conference. The 1899
Convention, which provided the legal basis for the PCA, was revised
at the second Hague Peace Conference in 1907. There are currently
97 States which are parties to one or both of the Conventions.
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Model Arbitration Clauses
• London Court of Arbitration as an example:
– The validity, construction and performance of this
contract shall be governed by the laws of England
and any dispute that may arise out of or in connection
with this contract, including its validity, construction
and performance, shall be determined by arbitration
under the Rules of the London Court of Arbitration at
the date hereof, which Rules with respect to matters
not regulated by them, incorporate the UNCITRAL
Arbitration Rules, the parties agree that service of any
notices in reference to such arbitration at their
addresses as given in this contract shall be valid and
sufficient.
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International Arbitration Rules
1. UNCITRAL
•
•
http://www.uncitral.org/uncitral/en/index.html
The United Nations Commission on International
Trade Law (UNCITRAL) was established by the
General Assembly in 1966 ( Resolution 2205(XXI)
of 17 December 1966). In establishing the
Commission, the General Assembly recognized that
disparities in national laws governing international
trade created obstacles to the flow of trade, and it
regarded the Commission as the vehicle by which
the United Nations could play a more active role in
reducing or removing these obstacles.
2. ICSID
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1985 - UNCITRAL Model Law on
International Commercial Arbitration
• Adopted by UNCITRAL on 21 June 1985, the Model Law is
designed to assist States in reforming and modernizing their laws on
arbitral procedure so as to take into account the particular features
and needs of international commercial arbitration. It covers all
stages of the arbitral process from the arbitration agreement, the
composition and jurisdiction of the arbitral tribunal and the extent of
court intervention through to the recognition and enforcement of the
arbitral award. It reflects worldwide consensus on key aspects of
international arbitration practice having been accepted by States of
all regions and the different legal or economic systems of the world.
• This Model Law has also been enacted as state law by California,
Connecticut, Georgia, Oregon, Texas and other states.
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Enforcement of Arbitration: The
New York Convention
• Convention on the Recognition and
Enforcement of Foreign Arbitral Awards
(The New York Convention, 1958)
• In the United States, the NY Convention is
implemented in conjunction with the
Federal Arbitration Act.
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Research Sources
• Sources on Int'l Arbitration (Born,
International Commercial Arbitration.
Transnational Publishers, 2001)
• Kluwer International Arbitration (fee based)
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16. International Health Law
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Development of Global Health
Issues
•
“The microbe that felled one child in a distant continent yesterday can reach
yours today and seed a global pandemic tomorrow”
– Joshua Lederberg, Nobel Laureate
•
“Globalization has resulted in, no only free movements of goods,
capital, services and persons, but free movements of diseases”
– Chenglin Liu
•
Infectious diseases—a long history
– Example, 63 major epidemics of plague between 900 to 1500
– 14-15 million Europeans fell victim to plague during the 14th Century.
– Hernando Cortez brought smallpox to Mexico which killed 3 million in Mexico
– 1918 Influenza took about 20 million lives
Other influenza outbreaks
Reference: Allyn L. Taylor, Controlling the global spread of infectious diseases:
toward a reinforced role for the international health regulations 33 Houston
Law Review 1327 (1997)
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From Medical Success to
Complacency
• Development of therapeutic and
preventive interventions in the 20th
Century
– Eradication of smallpox in 1977
• Attitude Change and new approaches:
Control the border, stay complacency and
enjoy life
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Emerging and Re-emerging
Diseases (ERD)
• ERD: AIDS, Legionnaires’ disease, Lyme
disease, toxic shock syndrome, hepatitis C,
virulent new strains of E. coli, SARS etc.
• Causes
–
–
–
–
–
Social, political and environmental changes
Poverty
War
Population growth
International travel
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Interrelated World
• http://tinet.ita.doc.gov/view/f-2004-101001/index.html outbound U.S. travelers: 27 million
(2004)
• http://tinet.ita.doc.gov/view/f-2004-07001/index.html inbound travelers to the U.S. 20
million (2004), used to be 50 million according to
some articles. Probably because of the tight visa
control.
• http://english.people.com.cn/english/200101/16/eng2
0010116_60652.html Travelers in and out of China
(2000): 187 million.
• http://quickfacts.census.gov/qfd/ TX (2004): 22
million
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International Health Regulations (IHR)
• Cholera epidemics that overran Europe between 1830
and 1847
– International Sanitary Conference in Paris in 1851
• IHR 1969
– No changes until 2005
– Safeguard borders
– Narrow scope: cholera, plague, yellow fever
– Weak enforcement
• Excessive measures
• Lack of cooperation
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IHR 2005
• IHR 2005
– Proactive approach
– Larger scope
– Monitoring system to promote compliance
• Focal points in member states and vertical
reporting
• Horizontal reporting
• Third party reporting
– Assistance
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Global Health
• WHO
–
–
–
–
–
Established in 1948
Headquarters in Geneva
6 regional offices
Director-General Office
NPR report on the new DG nomination audio
• WHO Constitution
– Attainment by all peoples of the highest possible level
of health
• Enabling law
– UN Charter 55: to promote solutions of international
economic, social, health, and related problems…
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