国际商法 international law

International Persons
• However, the inclusion of the subjects of international law varies from time to time. In the early twenties century it was clear that states solely and exclusively are the subjects of international law. • Contemporary international law has embraced a wide range of participants performing on the international scene. • The personalities of international law are states and their subdivisions, international organizations, businesses and individuals.
The Scope of International Law in Actual Practice
(2)How is treaty law received? Reception rules found in treaties depend on 2 factors --- the nature of the treaty a self-executing treaty: a treaty containing a term that says it is directly effective upon ratification a non-self-executing treaty: a treaty that requires states parties to enact enabling legislation before it becomes effectively domestically Definition of constitutional treaty and executive agreement
The Scope of International Law in Actual Practice
• Common and Difference • Both are commitments that impose binding international obligations • Constitutional treaties are directly effective domestically • For executive agreements, implementing legislation must be adopted to obtain domestic effect
The Scope of International Law in Actual Practice
• Case analysis Facts: Question: 1.was the California alien land law valid? The plaintiff relies on the Charter Articles 1,55 and 56 with the provisions that the member nations 2.Is U.N Charter a self-executing or nonself-executing treaty?
Section F The Rights of Individuals under International Law
International Persons
• What will be discussed is to whom international law applies, or in other words, who are the subjects of international law. 1.Legal personality(法律人格） The capacity of possessing rights and duties is termed by law as having and maintaining “legal personality”. And those entities with such capacity are recognized in law as “legal persons”（法人）.
International Persons
2. How to determine who is qualified as a subject of international law?
International Persons
It must have the capacity to possess international rights and duties and as a consequence, must have the capacity to maintain such rights by bringing international claims.
Section c Soபைடு நூலகம்rces of International Law
1. Main Contents Sources of international law as Article 38(1) of the Statute of the ICJ provides 2. Basic concepts and focuses Sources of international law Conventions and treaties Custom
International Persons
(2) Qualifications required for a state to be an international person: Permanent population A defined territory Government Independence or sovereignty
Section E International Persons
• Main Contents: Basic concepts and focuses:
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The personalities of international law
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– States: definition of states, kinds of states, recognition, recognition of a state, recognition of a government, recognition of a state is different from recognition of a government, Estrada Doctrine, – International organizations: two kinds---IGOs and NGOs
The Scope of International Law in Actual Practice
• 2. The practice in Municipal Court (1) How is customary law received into municipal law? Doctrine of Incorporation: Customary international law is part of domestic law to the extent it is not inconsistent Doctrine of transformation: Customary international law is applicable only after it is adopted by legislation, court decision, or local usage
The Scope of International Law in Actual Practice
• ---the constitutional structure of the ratifying state the constitutions assign to one or more states organs the responsibility for entering into treaties constitutional treaties (negotiated by the President and ratified by the Senator ) executive agreement (made solely by the President)
International Persons
1.States (the most important subjects) (1) Definition of states: States are the political entities that have a territory, a population, a government capable of entering into international relations, and a government capable of controlling its people and territory.
Section D The Scope of International Law in Actual Practice
• 1. The practice in International tribunal International tribunals’ presumption: 〔1〕Municipal law are regarded as subservient to international law 〔2〕States are regarded as having a general obligation to bring their municipal law into compliance with international norms 〔3〕Municipal laws are mere facts the significant consequences of treating municipal law as a fact --- states are required to prove what the law is ---municipal law will not be interpreted by an international tribunal ---an international will not declare such law either void or valid