International Law Flashcards
Treaty
A binding agreement between two or more states or international organizations that establishes their duties to each other
Written agreements in which the participants (usually states and international organizations) agree in good faith to be bound by the negotiated terms
For a treaty to be ratified in the United States, Congress must approve by at least two-thirds of the Senate
Public International Law
Rules and norms governing relationships among states and international organizations
International Law
Consists of rules, principles, and well-established practices that apply to the conduct of states, international organizations, businesses, and individuals across borders
Bilateral Treaty
Involves an agreement between two countries
Convention
A treaty on a specific issue that affects multiple participants
Protocol
An amendment to a treaty
Customary International Law
International rules that have become binding through a pattern of consistent, longstanding behavior
Courts recognize a custom as binding international law if:
1. It is widespread and widely accepted
2. It is longstanding, and
3. Nations follow it out of a sense of obligation to each other
Jus Cogens
A fundamental legal principle that cannot be changed by custom or practice
General Principles of Law
Comity: the deference countries choose to give each other’s laws and judgments
Act of State Doctrine: states are prohibited from interfering in each other’s legislative, administrative, or judicial activities when it pertains to official state action
Sovereign Immunity: holds that the courts of one nation lack the jurisdiction (power) to hear suits against foreign governments (as defendants)
Sovereignty
A country’s absolute authority to rule its people and its territory
Foreign Sovereign Immunities Act (FSIA)
Provides that American courts generally cannot hear suits against foreign governments; a U.S. statute that provides that American courts generally cannot entertain suits against foreign governments
Commercial Activity
A plaintiff in the United States can sue a foreign country engaged in commercial, but not political, activity
If a foreign government is doing something that only government has the power to do (such as printing money, making laws), it is a state activity and the country is immune from litigation
If a business can engage in the activity, it is considered to be commercial
Violation of International Law
A plaintiff in this country may sue a foreign government that has confiscated property in violation of international law, provided that the property either ends up in the United States or is involved in commercial activity that affects someone in the United States
Regional Trade Agreements
Reduce trade restrictions and promote common trade policies among neighboring member nations
North American Free Trade Agreement (NAFTA)
1993: principal goal was to eliminate almost all trade barriers among the three nations (Mexico, United States, Canada)
2020: Changed the name to the United States-Mexico-Canada Agreement (USMCA)
2020: Updates and Changes to the Agreement
1. Digital trade is regulated
2. Environmental regulations are easier to enforce
3. Workers’ rights are protected - the USMCA allows inspectors to monitor and investigate violations of workers’ rights
4. Automobiles must be made mostly in North America
5. Rules on intellectual property are strengthened
Comparative Advantage
Posits that citizens of the world will benefit overall if each country produces whatever goods it can make most efficiently and then trades them for goods that other countries make more efficiently
Tariff
A tax on an imported good, often for the purpose of protecting domestic competitors
The General Agreement on Tariffs and Trade (GATT)
A massive international treaty that has been negotiated on and off since the 1940’s
General Principles:
1. Free Trade: major focus of this treaty is to reduce trade barriers
2. Most Favored Nation: a treaty clause requiring members to treat each other equally.
3. National Treatment: the principle of nondiscrimination between foreigners and locals
World Trade Organization (WTO)
An international organization whose mandate is to lower trade barriers; it is the principal international organization overseeing trade rules and disputes among its members
Mission: to promote the free flow of trade
It operates a system of trade rules and serves as a forum for trade negotiations and disputes; also monitors national trade policies to ensure that they do not unfairly protect domestic industries
Empowered to settle trade disputes between its member states; it issues binding decisions and it may order compliance and impose penalties in the form of trade sanctions
If a country refuses to comply with WTO’s ruling, affected nations may retaliate by imposing punitive tariffs or other measures
International Chamber of Commerce (ICC)
The world’s largest global business organization
Its purpose is to facilitate international business
Advocates on matters of international business policy and develops uniform rules to aid cross-border transactions
Incoterms Rules: define a series of three-letter codes commonly used in international contracts for the sale of goods
Does NOT make law; it proposes rules whose adoption is voluntary
Individual Responsibility Under International Law
Civil Code Tradition
Main characteristics are:
1. An inquisitorial process of dispute resolution. in which the judge acts as interrogator and investigator
2. Court base their judgments on the code and statutes and on the writings of law professors
3. Civil code systems do not use juries
Extraterritoriality
The power of one country’s laws to reach activities outside of its borders
Conflict Law: refers to the analysis courts apply to decide which law rules when a case involves the laws of more than one jurisdiction
Application of U.S. Law Abroad
As a general rule, U.S. statutes do not apply abroad, unless the laws themselves explicitly say so
Foreign Laws and Judgments in the United States
Federal courts do commonly apply these foreign laws to resolve disputes
Foreign Recognition
Means that a foreign judgment has legal validity in another country
Foreign Enforcement
Means that the court system of a country will assist in enforcing or collecting on the verdict awarded by a foreign court
Uniform Foreign Money Judgments Recognition Act
This act provides that U.S. courts will recognize foreign judgments if:
1. The award was based on a full and fair trial by an impartial tribunal with proper jurisdiction;
2. The defendant was given notice and an opportunity to appear;
3. The judgment was not fraudulent or against public policy; and
4. The foreign court was the proper forum to hear the case
United Nations Convention on Contracts for the International Sale of Goods (CISG)
Aims to make sales law more uniform and predictable - and to make international contracting easier
Important Provisions:
1. The CISG applies to contracts for the sale of commercial goods, but not to consumer goods bought for personal use
2. International sales contracts do not need to be in writing; parties can prove the terms of contracts by any means, including witnesses and their course of dealing
3. Contracting parties must be flexible and fair; the CISG requires parties to negotiate in good faith and modify the contract in case of unforeseen circumstances
4. A buyer can avoid payment under a contract only after giving the seller notice and an opportunity to remedy; allows buyers to refuse payment only if the goods are seriously defective
5. The CISG applies automatically when contracts are formed between two parties located in different signatory countries
New York Convention
Widely accepted treaty on the court enforcement of arbitral awards
