International law is a term that is both used and misused quite often. Its definition first requires an isolated look at the word “international.” From the Latin for “between nations,” the word refers to any connection that occurs across borders.
In the legal sense, however, it refers to interactions between nation-states themselves, and international law refers to the body of rules governing relations between those states.
With few exceptions, only national governments can be parties in international law. Of course, this does not mean international law has no effect on us individually. It has a real and direct impact on our daily lives.
Rather than “international,” the more apt term for business or litigation across borders is “transnational.” Colloquially, however, we all use “international” to refer to our own participation in the world community.
We travel internationally, we make international phone calls, and we conduct international business. We even think of ourselves as playing a role in international relations. But for the purposes of this discussion, “international” refers primarily to the interplay of nation-states and “international law” refers to the rules that make that interplay work.
Public vs. Private International Law
An important distinction is implied in the semantic confusion of the term “international” — the distinction between the public and private domains of international law.
Public international law is international law in its traditional sense, that which governs the relations between states themselves. It can be characterized most readily by military alliances (such as NATO and the old Warsaw Pact) and free trade pacts (such as NAFTA and the old European Economic Communities), which require member states to modify their statutory schemes to facilitate cross-border commerce. Whether derived from treaty or from customary practice, public international law governs the way states act toward each other.
Private international law is more complicated and defies the strict definition that applies only to state actors. While also based on treaties and custom, and, therefore, clearly derived from relations between nations, private international law has a direct effect on individual persons acting in the global community. A host of treaties and historical practices govern how citizens of different nations interact on a transnational level.
Sources of International Law
Certainly, there is no global legislature that enacts binding statutes, nor is there a worldwide executive to carry them out. Likewise, no court has jurisdiction over all the nations of the world. Yet international law springs from a number of different, valid and binding sources, which bear some similarity to contract law.
The most recognizable source of international law is a ratified agreement: Nations agree to be bound to the terms of a treaty or convention, akin to a written contract between state parties.
Historically, though, customary practice has formed the basis for most international law. In many cases, new conventions are codifications of widely accepted concepts of international law. Even though a country may not accede to a convention, it might still be bound to the convention’s general tenets, especially where common practice is a universally respected norm (analogize to classical gap fillers: course of performance, course of dealings, usage in trade).
Relevance to Local Practitioners
Even a small-town, country lawyer must be cognizant, at least to a certain degree, of the effects of international law on local practice. Those effects are easiest to see in commerce:
- Shirts manufactured in Bangladesh find their way onto store shelves in Idaho
- A fish caught in Vietnam ends up on dinner tables in Michigan
- A litigation support office in India provides research services to a law firm with offices in Boston, Dublin and Melbourne
- Software engineered in Taiwan monitors the hum of an engine built in Ontario, which in turn drives a barge laden with Iowa corn down the river to New Orleans for export to Russia
Each one of these products and transactions is directly affected by international law. Its effect goes beyond commerce into unexpected areas. International law even reaches the wetlands of rural Missouri, where a duck hunter’s bag limit is controlled by an international agreement with Canada.
More specifically relevant to local attorneys, though, is international law’s direct impact on day-to-day legal work. Where any litigation involves foreign parties, special attention must be paid to issues far beyond the local court’s rules and substantive law.
In particular, service of process upon overseas defendants frequently requires adherence to one of two treaties and the law of the defendant’s location. Where no treaty exists, even more attention must be paid to foreign procedures, because valid service often requires the involvement of foreign courts.
The procedure for taking evidence located abroad is even more intricate. Subpoenas cannot be properly served abroad because they lose their coercive effect the moment they cross a border (exception: service upon US nationals). Interrogatories may be ignored by foreign witnesses for the same reason — the court has no power to force an answer. And even where the Hague Evidence Convention is in effect, the Convention’s own terms severely restrict American-style discovery.
Ultimately, all roads lead to enforcement — few judgments matter to clients unless they are fulfilled. Enforcement requires an exhaustive recognition process in overseas venues, and at each stage of the process, foreign judges examine the procedural (posture, consistency, propriety… doing it right!) of the forum court’s adjudication.
Any failure to adhere to the tenets of international law can give rise to refusal; US and Canadian counsel must be vigilant to ensure that the sovereignty of foreign authorities is respected, well before a cause of action reaches their courts.
If you’re dealing with an international law matter and require advice and/or support, contact Legal Language today and learn how our professional linguists and experienced staff attorney can assist you.