国际商法 international law.ppt

executive agreement (made solely by the President)
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The Scope of International Law in Actual Practice
• Common and Difference • Both are commitments that impose binding
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
---an international will not declare such law either void or valid
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
international obligations • Constitutional treaties are directly effective
domestically • For executive agreements, implementing
legislation must be adopted to obtain domestic effect
Definition of constitutional treaty and executive agreement
The Scope of International Law in Actual Practice
• ---the constitutional structure of the ratifying state
Section c Sources 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
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
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
Sources of international law Conventions and treaties Custom
Section D The Scope of
International Law in Actual Practice
• 1. The practice in International tribunal
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 )
1,55 and 56 with the provisions that the member nations 2.Is U.N Charter a self-executing or nonself-executing treaty?
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