13.2 Sources and Practice of International Law
3 min read•june 24, 2024
International law shapes global trade through , customs, and legal principles. These sources establish rules for economic relations between nations, impacting everything from tariffs to dispute resolution. Understanding their interplay is crucial for businesses navigating the complex world of international commerce.
and systems approach legal issues differently, affecting how international business disputes are handled. Recognizing these distinctions helps companies manage legal risks across borders. Key doctrines like comity and sovereign immunity further influence cross-border legal proceedings and enforcement of foreign judgments.
Sources of International Law
Treaties and conventions establish formal rules and obligations between states impacting global trade
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- between two states or between multiple states
- agreements set rules on tariffs, non-tariff barriers, and dispute resolution
- and provide frameworks for international trade
- (such as the United Nations) often facilitate the creation and implementation of treaties
Customary international law consists of unwritten rules developed through consistent state practice and belief in legal requirement
- Binding on all states unless consistently objected to during formation
- Principles of in internal affairs of other states and immunity of foreign diplomats influence global trade by establishing general norms states are expected to follow in economic relations
- is formed through widespread and consistent combined with (belief that the practice is legally required)
General principles of law common to most domestic legal systems fill gaps when treaties and customary international law lack clear solutions
- Principles of , , and doctrine of provide foundation for interpreting and applying international trade rules consistently across different legal systems
Additional Sources of International Law
- norms are peremptory rules of international law from which no derogation is permitted
- instruments, such as guidelines or declarations, while not legally binding, can influence state behavior and shape international legal norms
- State practice, as evidenced by official acts, statements, and policies, contributes to the formation of
International Legal Doctrines and Systems
Principles in international proceedings
- recognizes and enforces foreign judicial decisions, laws, and regulations out of respect and mutual cooperation
- Voluntary practice based on reciprocity and international courtesy encourages cooperation and efficient resolution of cross-border disputes
- prevents domestic courts from examining validity of public acts committed by recognized foreign sovereigns within their own territory
- Based on sovereign equality and non-interference in internal affairs of other states, limiting ability of private parties to challenge foreign government actions in domestic courts
- grants states immunity from jurisdiction of foreign courts unless consented to be sued
- Derived from sovereign equality and idea that states are not subject to authority of other states
- Can be waived by foreign state or limited by domestic legislation () restricting ability of private parties to bring claims against foreign states in domestic courts
Common law vs civil law systems
- Common law systems (United Kingdom, United States, Canada, Australia, New Zealand) based on case law and judicial precedent
- Judges have significant role in interpreting and applying law
- Adversarial system emphasizes oral arguments and cross-examination
- Civil law systems (France, Germany, Japan, most continental Europe and Latin America) based on codified statutes and regulations
- Judges primarily apply law as written in codes with less emphasis on judicial precedent
- Inquisitorial system emphasizes written submissions and active role of judge in fact-finding
- Application in international business disputes
- clauses specify governing legal system
- combines common law and civil law procedures for flexibility and compromise
- Enforcement of foreign judgments influenced by compatibility of legal systems involved
- Understanding differences crucial for businesses operating in multiple jurisdictions to effectively manage legal risks and resolve disputes
Key Terms to Review (29)
Act of state doctrine: The act of state doctrine is a legal principle that prevents courts from questioning the validity of public acts performed by a foreign sovereign within its own territory. This doctrine recognizes the sovereignty of nations and ensures that domestic courts do not interfere with the foreign policy or actions of other states, promoting international comity and respect for the rights of sovereign nations.
Bilateral agreements: Bilateral agreements are treaties or contracts between two parties, typically countries, that establish specific obligations and rights for both sides. These agreements are crucial in international relations as they facilitate cooperation, trade, and diplomacy by outlining mutual commitments on various issues such as trade, defense, and environmental protection.
Choice of law: Choice of law refers to the legal principles used to determine which jurisdiction's laws will be applied in a legal dispute, especially in cases involving international or interstate issues. It plays a crucial role in international law as it helps resolve conflicts that arise when parties are from different legal systems or when the events giving rise to the dispute occurred in different jurisdictions.
Civil Law: Civil law is a legal system that is primarily concerned with private rights and remedies, as opposed to criminal law which deals with public wrongs and punishments. It establishes the rights and duties between individuals and provides a framework for resolving disputes through the judicial process.
Common Law: Common law is a legal system that is primarily developed through judicial decisions rather than through legislative statutes. It is based on precedent, where courts make rulings on cases and those rulings then become the basis for how future similar cases are decided. Common law is a foundational element of the legal systems in many countries, including the United States, the United Kingdom, and other former British colonies.
Conventions: Conventions in international law are formal agreements or treaties between states that establish rules and norms for behavior. These agreements play a crucial role in shaping international relations and ensuring that states adhere to agreed-upon standards, helping to maintain order and predictability in interactions between nations.
Customary International Law: Customary international law refers to the body of unwritten international laws that develop through the consistent practice and acceptance of states over time, rather than being formally codified in treaties or other written agreements. It is one of the primary sources of international law, alongside treaties, general principles of law, and judicial decisions.
Diplomatic Immunity: Diplomatic immunity is a form of legal immunity that ensures diplomats are not subject to the jurisdiction of local courts and authorities in the host country. It is a principle of international law that allows diplomats to carry out their functions without fear of legal repercussions.
Doctrine of Sovereign Immunity: The Doctrine of Sovereign Immunity is a legal principle that protects a sovereign state and its political subdivisions from being sued without its consent. This doctrine is rooted in the idea that sovereign states should not be subject to the jurisdiction of other states, preserving their autonomy and dignity in international relations. It establishes the framework for understanding how states interact legally, particularly in matters of international law, where the balance of power and respect for state sovereignty are critical.
Estoppel: Estoppel is a legal principle that prevents a party from asserting or denying a fact that is contrary to a previous statement or action taken by that party. It is a doctrine that aims to promote fairness and prevent inconsistent positions that would prejudice another party.
Foreign Sovereign Immunities Act: The Foreign Sovereign Immunities Act (FSIA) is a U.S. federal law that establishes when and how a foreign state may be sued in American courts. It provides the sole basis for obtaining jurisdiction over a foreign state in the United States. The FSIA sets forth the circumstances under which a foreign state is immune from the jurisdiction of U.S. courts and the exceptions to that immunity.
General Principles of Law: General principles of law are fundamental legal concepts and norms that are considered to be universally applicable across various legal systems and jurisdictions. They serve as the underlying foundation for the development and interpretation of international law.
Good Faith: Good faith is a fundamental principle in various areas of law, including contracts, sales, and international law. It refers to the honest, fair, and reasonable conduct expected of parties in their dealings and interactions, with the aim of promoting trust, cooperation, and the fulfillment of legitimate expectations.
International Arbitration: International arbitration is a method of resolving disputes between parties from different countries through a private, neutral, and binding process. It allows parties to avoid the complexities and uncertainties of national court systems, making it a preferred choice for resolving international commercial and investment disputes.
International Custom: International custom is a source of public international law that refers to the general and consistent practice of states that they follow from a sense of legal obligation. It is one of the primary sources of international law, alongside treaties and general principles of law.
International Organizations: International organizations are entities established by formal political agreements between their members that have a permanent structure, staff, and headquarters. They serve as platforms for cooperation, coordination, and collective decision-making on matters of global or regional importance.
Jus cogens: Jus cogens refers to fundamental principles of international law that are recognized as overriding all other treaties and customary laws. These norms are considered essential for the protection of human rights and the maintenance of international order, such as prohibitions against genocide, torture, and slavery. Jus cogens norms are universally binding and cannot be violated by any state, reflecting the highest standards of human dignity.
Multilateral Agreements: Multilateral agreements refer to international treaties or contracts that involve three or more parties, typically countries or other global entities, working together to establish a common set of rules, obligations, and benefits. These agreements are a key source and practice of international law, facilitating cooperation and coordination on a wide range of global issues.
Non-intervention: Non-intervention is a principle in international law that prohibits a state from interfering in the internal affairs of another sovereign state. It is a fundamental aspect of the sources and practice of international law, as it upholds the principles of state sovereignty and the equality of nations.
North American Free Trade Agreement (NAFTA): The North American Free Trade Agreement (NAFTA) is a trilateral trade agreement between the United States, Canada, and Mexico that came into effect in 1994. It aimed to eliminate most tariffs and trade barriers between the three countries, facilitating the free flow of goods, services, and investment across their shared borders.
Opinio Juris: Opinio juris is a key concept in international law that refers to the belief or opinion that a particular action or practice is required by international law. It is a critical element in the formation of customary international law, along with the actual practice of states.
Principle of Comity: The Principle of Comity refers to the legal doctrine that encourages countries to respect and recognize the laws and judicial decisions of other nations, fostering cooperation and harmony in international relations. This principle is essential in guiding how states interact with one another, especially in legal matters such as jurisdiction, enforcement of judgments, and treaty obligations. It plays a significant role in promoting mutual respect among nations and ensuring smoother diplomatic relations.
Prohibition of Abuse of Rights: The prohibition of abuse of rights is a principle in international law that limits the exercise of rights by individuals or states to prevent harm or injustice. It ensures that rights are not used in an excessive or unreasonable manner that violates the rights of others or undermines the purpose of the law.
Soft Law: Soft law refers to a set of non-binding principles, guidelines, or rules that influence international behavior, but do not have the same legal force as formal treaties or conventions. It serves as a complement to the traditional sources of international law, providing flexibility and adaptability in the global governance framework.
Sources of International Law: The sources of international law refer to the various origins and forms from which the rules and principles of international law are derived. These sources provide the foundation and authority for the legal obligations and rights that govern the conduct of states and other international actors.
State Practice: State practice refers to the actions, behaviors, and customs adopted by sovereign states in their interactions and relations with other states, international organizations, and the international community as a whole. It is a fundamental aspect of international law, as it shapes the development and interpretation of legal norms and principles.
Treaties: Treaties are formal agreements between two or more sovereign states that are governed by international law. These legally binding documents can cover a wide range of topics, including trade, peace, defense, and environmental regulations. Treaties play a crucial role in fostering cooperation and maintaining order among nations, as they establish the legal framework for relationships and interactions on a global scale.
United Nations Convention on Contracts for the International Sale of Goods (CISG): The United Nations Convention on Contracts for the International Sale of Goods (CISG) is a treaty that provides a uniform framework for international commercial contracts, particularly in the sale of goods. It aims to simplify and harmonize international trade laws, reducing barriers and legal uncertainties between different legal systems. The CISG is crucial for global commerce as it establishes rights and obligations of buyers and sellers, facilitating smoother transactions across borders.
World Trade Organization (WTO): The World Trade Organization (WTO) is an international organization that regulates and facilitates trade between nations, ensuring that trade flows as smoothly and predictably as possible. It provides a framework for negotiating trade agreements, settling trade disputes, and enforcing global trade rules, promoting fair competition and reducing trade barriers among member countries.