international law. public vs. private public: rights between nations, or nations and citizens of...

International Law

International Law

Public vs. privatePublic: rights between nations, or nations and citizens of different nationsPrivate: controversies between private persons resulting from relationships with more than one country

International Law

Sources: Customary and ConventionalInternational customs:

Countries follow practices out of a sense of legal obligation. Customary law was codified in the Vienna Convention on the Law of Treaties.

International Law

Conventional laws:Treaties & international agreement: A treaty is an agreement between 2 nations that has been ratified by each. (Under the U.S. Constitution, Article II, Section 2, the president agrees, with the advise & consent of the senate if 2/3 of senators agree.)Bilateral – 2 nations.Multinational- several nations: EU & NAFTAFor a collection of multilateral treaties, visit the Fletcher School at Tufts.

International Law

International Organizations & conferences

Organizations through the United Nations.• International Court of Justice.

World Trade OrganizationEuropean UnionNAFTA

International Law

Comparative lawCommon law system• Derived from English traditions• The law has primarily developed and

continues to be modified through judicial decisions.

Civil law system• Derived from Continental European traditions• The law is developed and modified through

enacted law.

For Example: Mexican Legal SystemModeled on civil law tradition, most notably the French system.Involves a complete set of written legal codes.If there is a gap or uncertainty, the legislature completes the law.The code is the exclusive source of procedures & rights.Rights & rules that have not been codified do not exist, and are not implied.The legislature, and not the courts, is the traditional source of legal reform.

Mexican Legal System

Appellate decisions are generally not binding.Exception: Jurisprudencia, when an identical legal issue is decided in an identical manner for the 5th consecutive time.Stare decisis is insignificant.The legislature is the primary source of the law as well as changes to the law, and the role of the judiciary is limited.

Mexican Legal System

The juicio de amparo (amparo)Is a writ of protection that secures individual rights guaranteed by the constitutionAllows individuals to protect constitutional rights in criminal, civil, administrative, and labor disputes.The major weakness is that a favorable judgment resolves only the instant controversy, but does not set precedent or protect similarly situated parties.

The Hierarchy of Law in Mexico would be:

Mexican ConstitutionTreatiesFederal LawRegulationsState ConstitutionsState Laws

NAFTA

The United States, Canada, and Mexico launched the North American Free Trade Agreement (NAFTA) in 1994.

It opened up free markets between the 3 countries.

North American Agreement on Labor Cooperation (NAALC)

NAFTA countries are not required to enforce the laws of the other countries, but by signing, they have agreed to enforce their own laws.

For Example: Labor & Employment Laws in China

Employees beginning work on or after 1/1/08 are covered under the new Labor Contract Law

Employment relationship must be based on a written employment contract. 3 Types:

• Fixed-term contracts• Open-ended contracts• Contracts for the completion of a certain project

Contract must contain complete information

Name, domicile, legal rep of employerName, domicile, number of the resident ID of workerTerm of employment contractJob description & place of workWorking hours, rest & leave

Contract must contain complete information (cont’d)

Labor compensationSocial insuranceLabor protection, working conditions & protections against hazardsOther matters which laws & statutes require to be included

Leave Regulations (minimum leave for all employees working continuously for over one year)

Minimum Annual Paid Leave

Continuous Employment

5 days < 10 years

10 days 10-20 years

15 days >20 years

There are 11 official national holidays

Tomb-Sweeping DayDragon Boat FestivalMid-Autumn FestivalMay DayNew Year

3-day Spring Festival3-day National Day

Tighter Restrictions on Probationary Periods

Terms of the Employment Contract

Maximum Length of the Probationary Period

<3 months 0 months

>3months <1year <1 month

≥1 year <3 months ≤2 months

≥3 yrs or open-ended contract

≤6 months

Employment Promotion Law

Prohibits discrimination based on EthnicityRaceGenderDisabilityReligious beliefMigrant workers

Age discrimination

Not prohibitedMandatory retirement age

60 for men55 for women

Relevant International Law

Convention 111 of the International Labor Organization (ILO) on Discrimination in Respect of Employment and Occupation states,Article 11(1) of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) International Covenant on Civil and Political Rights (ICCPR) American Convention on Human Rights (ACHR)

Universal Declaration of Human Rights

http://www.un.org/Overview/rights.html