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Business Law

First chapter - International sources of law

              - European sources of law

              - National sources of law

2nd : English juridical system

3rd : Tort law (law with no contract)

4th : Contract law

        International sources of law

International law is the law of the so-called "international community". The law between the states and also the states and the international organizations.

Public international law is a body of rules that govern relations between states, functioning of international institutions/organizations and rights and duties of individuals.

International law covers every aspect of relations between states from aviation to xenophobia and beyond.

However, we will mainly focus on those aspects of international law that are of direct relevance to international Organizations and international Economic law.

Areas of the international law : - International economic law (intellectual property law) trade-counterfeiting / foreign investment

                                - Human rights*

                                - The use of armed force

                                - Environment protection

                                - The use of the sea

                                - Terrorism

                                - Transportation

Who are the subject of international law?

        - States

        - Public International organizations (FIDIC, WTO : world trade organizations, United Nations, UNESCO, OPEC, IMF)

        - Individuals, they are bound by International law (Vatican City, NGOs)

        - Other Entities

You have some duties if you're part in the international law and duties. International law confers right and duties.

There are subjects and objects which have  no rights and duties. Objects of subject's rights and duties.

Subjects of International Law : - members of the international community are subjects

                                - Subjects have international legal personality

                                - definition of objects of international law

As a state, we can conclude treaties with other states.

Ability to go in front of a tribunal if the other state doesn’t respect the treaties.

If a State want to be a state under international law, he has to meet certain criteria :

        - Territory

        - Population

        - Government

        - Sovereignty : exercise sovereign functions on the territory (police, raise taxes ...)

States created public organizations and Public organizations are regulated by international law.

- International organization earns public international organization or governmental organization, that is to say an organization created by sovereign states and whose functioning is regulated by international law, not the law of any given country.

- There are hundreds of IOs : some operate at the global level, others at the regional level

- Personality of IOs is limited to what is necessary to carry out the assigned functions.

- Hybrid organizations (public/private) ex: international Committee of the red cross, International Union of the conservation of Nature = public and private at the same time)

                        Individuals

Have certain rights under international law and certain duties ( human rights, you should not commit international crimes)

They have no international law-making powers

Individuals can act collectively: - NGOs (ex : WWWF, médecins sans frontières, Amnesty international)

                                   - Peoples (indigenous peoples ...)

In general, as long as a State carries out its obligations under international law, how it does so is not the concern of International law

Not all states agree on the relationship between International law as national law.

However, from an international perspective it is important for you to bear mind ...

                Definition of sources of international law

Sources of international law are the materials and processes out of which the rules and principes regulation the international personalities are developed.

Rules are extracted an analyzed from the sources.

The international court of Justice (ICJ), you have to pay intention of article 38 of the statute of the international court of justice is widely reg=cognized as the most authoritative statement as the sources of international law

On the basis of this articles 38 of ICJ Statute :

5 distinct sources of IL can be identified:

1. International conventions/treaties

2. International customs

3. General principals of law

4. Judicial decisions

5. Writings of the publicists (writing of the main specialists)

This position shall not prejudice the power of the court to decide a case ex aequo et bono, if the parties agree thereto.

Ex aequo and bono : the judge from common sence decide what is fair for the case.

Primary and secondary sources of International Law

- Treaties, customs, and general principles of law, are sometimes referred to as "primary sources".

1. International Conventions/Treaties

They are known by a variety of terms (agreements, conventions, pacts, charters...)

The creation of written agreements whereby the states participating bind themselves legally to act in a particular way or to set up particular relations between states.

Main principal, the bases of a treaties (you need to agree, mutual agreement, we talk about consent to be bound)

Two types of treaties: - Law making treaties (universal relevance, imply many countries)

                        - Treaty contracts (between a small number of countries, not have the capacity to create law).

Law making treaties : conducting between many states and creates general rules ninding states. LMT or conventions are the main source of international law.

                        Examples: The Hague Convention of 1899 and 1907 (on law of war and mentality)

                                   The Geneva Protocol of 1925 (on prohibited weapons)

                                   The genocide convention (1948)

Treaty contracts : Deal with a special matter between contracting states only (ex : Indo Nepal on trade and transit / Indo Nepal on Peace and friendship...)

                Creates particular law between the signatories. But it can be also a source of universal rule (for example in the Briand Kellog Pact 1928 between USA and France : Renunciation of war, was so attractive that other countries wanted to sign it, so influenced many other states.

 

2. Customs as a source of IL

The article 38 of the statute of the ICJ recognizes "International Customs", as a source of IL

The ICJ's statute refers to international customs, as "evidence of a general practice accepted as law". In other words, "how things are generally done".

(ex: 12 miles territory of sea)

Notion of ipinio juris is the idea to believe that the practice the customs is obligatory.

Customary international law is law applicable for all states. Most of the time the customs are not written so it can be vague notion and be difficult to prove that it's a custom.

You need to explain that the custom match with different criteria :

  • Duration of state practice
  • Uniformity and consistency in practice
  • Generality in practice
  • Opinio Juris (acceptance of practice law)

Special category of customary rules : Jus Cogens (ex: Human rights like ban or torture, slavery, genocide ...)

Jus Cogens are rules of international law which are considered so essential that they can never be derogated.

...

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