1、INTERNATIONAL TRADE LAW,By Zeng Erxiu, BA, LLB, LLM, PhD Law professor, attorney-at-law,PREFACE,Learning a language is not a matter of acquiring a set of rules and building up a large vocabulary, but a matter of using it. Thus, a students command of a language is judged not by how much he knows, but
2、 how well he can perform in public., conducted in English will not only judge how well you can use your long-learned English, but will also improve your use of English.,Be confident in yourself! You will make it! Dont grudge your time after you have spent almost ten years in learning English!,Textbo
3、ok Ray August, International Business Law: Text, Cases,and Readings, 4th Edition, Pearson Education International , 2004,CONTENTS,I. Introduction to International and Comparative Law 国际法与比较法概论 II. Dispute Settlement 争议解决 III. Trade in Goods 货物贸易 IV. Sales 买卖 V. Transportation 运输 VI. Financing 支付,REQ
4、UIREMENTS,I. Preview the relevant part of the reading material,especially the relevant cases, preparing for discussion in the classroom.group work II. In the classroom, listen, take notes no copy of ppt permittedand speak out your understanding of what we have studied. III. Enhance through reading r
5、elevant articles.,I. Introduction to International and Comparative Law,A. What is international law?什么是国际法 B.The making of international law 国际法的制定 C. Sources of international law国际法的渊源 D. The scope of international law in actual practice 国际法的范围 E. International persons 国际法主体 F. The rights of indivi
6、duals under international law 个人在国际法上的权利 G. Comparison of municipal legal systems国内法律制度比较,A. WHAT IS INTERNATIONAL LAW?,The body of rules and norms that regulates activities carried on outside the legal boundaries of nations.It regulates three international relationships:1) Those between states and
7、states.2) Those between states and persons.3) Those between persons and persons. Public international law; private international law; international economic law，etc. ？,Is International Law Really Law?,International law is law, because nations and individuals regard it as law. It is different from co
8、mity. Comity: The practice, or courtesy, between nations of treating each other with goodwill and civility. Comity is not law because countries do not regard it as something they are required to respect.,B. THE MAKING OF TERNATIONAL LAW,1. No Formal Law-making Machinery 2. Basic Mechanism for Creati
9、ng International Law: Consensus of the international community. General consent of the international community Particular consent of a state,C. SOURCES OF INTERNATIONAL LAW,1. Definition: Those things which international tribunals rely upon in determining the content of international law.2. Authoriz
10、ed Sources: Article 38(1) of the Statute of the International Court of Justice (ICJ) lists the sources which that court is permitted to use.a. ICJ looks to: 1) International conventions;2) International custom; 3) General principles of law.b. In interpreting these, the ICJ may also look to:1) Judici
11、al decisions.2) Teachings of publicists.,3. Treaties and Conventions,a. Definitions:1) Treaties are agreements between one or more nations.2) Conventions are agreements sponsored by international organizations. b. Reasons for binding effect:1) Shared sense of commitment.2) Because one country fears
12、that if it does not respect its promises, other countries will not respect their promises. c. Rules governing treaties:1) Traditionally customary.2) Now codified in the Vienna Convention on the Law of Treaties (in force since 1980).,Case 1-1. LEGAL STATUS OF EASTERN GREENLAND CASE (Denmark v. Norway
13、) Permanent Court of International Justice, 1933.,FACTS: In formal discussions leading up to the Paris Peace Talks, Denmarks Ambassador told Norways Foreign Minister that Denmark would not object to Norways claim to Spitzbergen if Norway did not oppose Denmarks claim to the whole of Greenland at the
14、 Paris Peace Talks. After consulting with his government, the Norwegian Foreign Minister told the Danish Ambassador “that the Norwegian Government would not make any difficulty in settling the question.” ISSUE: Was the oral commitment made by the Foreign Minister binding on Norway?,4. Custom,Definit
15、ion: Rules that have been around for a long time or which are generally accepted. Customary rules are constantly changing. Establishing the existence of a customary law: Must show two elements one behavioral and one psychological:1) the consistent and recurring action (or lack of action if the custo
16、m is one of noninvolvement) by states.2) The custom must be regarded by states observing it as one that they must obligatorily follow. Persistent objection result in a customary rule not applied to a state. Case 1-2,Case 1-2. THE ASYLUM CASE (Colombia v. Peru) International Court of Justice, 1950.,F
17、ACTS: Colombia granted political asylum in its Lima, Peru embassy to Haya de la Torre. Peru refused to grant safe conduct to Haya de la Torre to leave the country. Colombia sued in the ICJ to obtain an order for the safe conduct. ISSUE: Is Peru a party to a treaty governing asylum? Is there a custom
18、ary rule of international law governing asylum? Must Peru observe that rule?,5. General Principles,General principles of law that are common to both (or all) the state parties to a dispute.,D. THE SCOPE OF INTERNATIONAL LAW IN ACTUAL PRACTICE,1. The Practice in International Tribunalsa. Municipal la
19、w is regarded as being subservient to international law.b. States have a general obligation to bring their municipal law into compliance with international norms.c. Procedurally municipal law is treated as “mere fact.”,2. The Practice in Municipal Courts International law is generally treated as cor
20、relative.- Once a court determines that a particular rule of international law is applicable in a particular case, that law will be treated as law and not as a fact. The court must determine whether or not the international law has been received into the local jurisprudence.a) As for customary law:
21、In most countries, customary international law is received in accordance with the doctrine of incorporation.b) As for treaties: Reception rules depend upon two factors: (i) The nature of the treaty; and (ii) The constitutional structure of the ratifying state.,1 The nature of treaties they may be:a
22、Self-executing treaty: One that contains a provision that says the treaty will apply in the parties municipal courts without their having to adopt any domestic enabling legislation.b Non-self-executing treaty: One that has no such provision. 2 The structure of states constitutions may assign to one
23、or more state organs (or branches) the responsibility for entering into treaties. Q: How about the application of customary law and treaties in our municipal court?,Case 1-3. SEI FUJII v. STATE United States, Supreme Court of California, 1952.,FACTS: A California law made land purchased by a Japanes
24、e who was ineligible for citizenship escheat to the state. ISSUES: (1) Does Californias alien land law violate the UN Charter? (2) If it does, is the UN Charter automatically applicable? (3) Does the California law violate the US Constitution?,E. INTERNATIONAL PERSONS,1. States a. Definition: Politi
25、cal entities which have all of the following: 1) A territory. 2) A population. 3) A government capable of entering into international relations. 4) A government capable of controlling its territory and peoples. b. Kinds of states:1) Independent states are free from the political control of other sta
26、tes, and free to enter into agreements with other international persons.2) Dependent states have formally surrendered some aspect of their political and governmental functions to another state.3) Inchoate states lack some attribute required to be treated as a fully independent state; most commonly t
27、hey lack territory or population.,c. Recognition: A unilateral declaration either explicit (express) or implicit (tacit) by other states.1) Effect: Implies that the recognized state or government is entitled to the rights and privileges granted by international law.2)Two kinds of recognition: a) Rec
28、ognition of a state: Usually granted when an identifiable government, people, and territory first come into existence. b) Recognition of a government: May be denied even if recognition of the state continues.,When government should be recognized? 1 Theories about when governments should be recognize
29、d:a Declaratory doctrine: The legal existence of a government happens automatically by operation of law whenever a government is capable of controlling a territory and its people.b Constitutive doctrine: A government does not truly come into existence until such time as it is recognized by other sta
30、tes and participates in the international arena.,Case 1-4. MATIMAK TRADING CO. v. KHALILY and D.A.Y. KIDS SPORTSWEAR INC. United States, Second Circuit Court of Appeals, 1997. FACTS: Plaintiff, Matimak, a Hong Kong company, seeks to sue Khalily and D.A.Y., two New York corporations, in a US federal
31、court. Matimak seeks to invoke the federal courts diversity jurisdiction in US Code 1332(A)(2) to hear civil disputes between “citizens of a State and citizens of a foreign state.” The district court dismissed plaintiffs suit on the grounds that it was not the citizen of a foreign State, because Hon
32、g Kong was not at the time recognized as being a foreign state by the United States government. ISSUES: (1) Is Hong Kong a state? (2) Is Matimak a citizen of the United Kingdom? (3) Does 1332(A)(2) allow stateless persons to sue in a US federal court?,2 Practical considerations concerning the recogn
33、ition of governments.a Estrada Doctrine: To avoid any possible connotation that recognition also means approval, many governments have adopted a policy of never formally recognizing other governments. This policy is named after the Mexican Foreign Minister who first stated it.,d. Territorial Soverei
34、gnty: The right to exercise the functions of a state within a territory. 1) Not an absolute right?Other states may obtain servitudes,either by treaty or practice, to a limited use of certain territory.a) Positive servitude: The exercise of a right-of-way.b) Negative servitude: Prevents one state fro
35、m doing something within its territory that causes injury to a second state. 2) Acquiring territory: This is done either by:a) Occupying land not claimed by another sovereign.b) The transfer of territory from one sovereign to another.,Case 1-5. THE TRAIL SMELTER ARBITRATION (United States v. Canada)
36、 Canadian-United States International Joint Commission, Arbitral Tribunal, 1938 and 1941. FACTS: A Canadian lead and zinc smelter at Trail, British Columbia, was polluting the waters of the Columbia River that then ran into the state of Washington. After negotiations between the US and Canada, the l
37、atter agreed to refer the matter to an International Joint Commission. The Commissions Arbitral Tribunal awarded the US $350,000 in damages, but did not order the smelter to cease operating. In 1941, the US sought to have the operation of the smelter enjoined. ISSUE: Can Canada be enjoined from caus
38、ing harm to a US river?,e. Changes in Territorial Sovereignty.1) Consequences as to treaty rights and obligations: Successor states must observe:a) Treaties which implement general rules of international law.b)“Dispositive” treaties: Treaties concerned with rights over territory, such as boundaries
39、and servitudes. 2) Nationals of a territory that is acquired by a successor state will keep the nationality of the predecessor state unless a different result is agreed to in a treaty of cession or by municipal legislation. 3)Public property located within a territory becomes the property of the suc
40、cessor state, while property located in third states belongs to whichever government the third state recognizes.,Case 1-6. ARAB REPUBLIC OF SYRIA v. ARAB REPUBLIC OF EGYPT Brazil, Supreme Court, 1992. FACTS: After Syria and Egypt merged to form the United Arab Republic (UAR) in 1958, Syria turned ov
41、er its embassy in Brazil to the UAR. Following the dissolution of the UAR in 1961, the Egyptian diplomat who had been the UARs last ambassador to Brazil refused to return the embassy to Syria. In 1981, the Syrian ambassador in Brazil brought suit in the Brazilian Supreme Court seeking an order to re
42、quire Egypt to turn over the embassy property to Syria. ISSUES: (1) Does this dispute involve state succession? (2) If so, is it a matter for a municipal court to decide?,4)Private property rights of individuals do not lapse because of a change in government.5)A successor state is bound by the priva
43、te contractual obligations of its predecessors.6) A successor that acquires part or all of a territory is proportionately responsible for the territorys national debt.,2. International Organizationsa. Intergovernmental Organizations (IGOs).1) Defined: Permanent organizations set up by two or more st
44、ates to carry on activities of common interest.2) Characteristics common to IGOs:a) They are created by two or more states.b) They are meant to pursue interests common to their creators.c) They function autonomously as independent international persons.,3) Creation: Created much in the fashion of a
45、corporation.a) Charter or constituent instrument, sets out its aims and objectives, internal structure, resources, and express powers. Example: United Nations Charter.4) Legal capacity: Includes the capacity to carry on diplomatic relations with a state or to sue or be sued in an international or mu
46、nicipal court. a) Acquired by recognition1 from its own state members: automatically.2 from non-member states: specifically certified.,Case 1-7. ARAB MONETARY FUND v. HASHIM and others (No. 3) England, High Court, Chancery Division, 1990. FACTS: The Arab Monetary Fund was created by a group of Arab
47、states as an intergovernmental organization with an “independent juridical personality and . in particular, the right to . litigate.” A decree issued in the United Arab Emirates gave the Agreement the force of law through the UAE. The AMF sued the defendants alleging that they had misappropriated AM
48、F funds. The defendants asked to have the suit dismissed, arguing that the AMF,had no legal personality in England and, therefore, could not bring suit there. England had not formally recognized the AMF. ISSUES: (1) If the governments that created an IGO are recognized, must the IGO be separately re
49、cognized? (2) May an entity, which is not recognized as an IGO, be treated as an ordinary juridical entity (and therefore be subject to the jurisdiction of a foreign court)?,5) Examples:a) The United Nations (UN).（http:/www.un.org/english/）b) The European Union (EU). (http:/europa.eu.int/index_en.htm)1 Supernational powers: Within its scope of applicability, community law is superior to the laws of the member states.a Member states are required to bring their internal laws into compliance with EU laws.b EU law is directly effective within the member states.,
