Basic Principles
1. What is transnational law?
A. International law: law between states. Generally public international law.
B. Transnational law: transcends international. Public combined with private, combined with supra IL, and domestic IL law, and comparative law.
C. Blurring Lines: Over half of Treaties now deal with commercial & private entities, whereas in old days dealt with relations and boundaries.
2. Question to Ask for Every Exam Hypo
A. Who are the actors?
B. What are the sources of law involved?
C. What are the principles of law involved?
D. What are the dispute resolution mechanisms?
3. Transnational Law Categories
A. Comparative law
1. How different legal systems work to resolve similar problems.
2. Civil Law v. Common Law: Civil—code based; Common—precedent and stare decisis.
B. Public International Law: State to State relations.
C. Private International law
1. Int’l litigation & disputes between private parties
2. Intn’l business and corporate law.
3. Raises issues of JD, choice of law, recognition of awards.
D. Domestic Law on Intn’l Issues
1. This used to never be an issue, but any domestic law that has international implications is relevant to our discussion.
E. Supranational Law
1. Where parties make agreements or treaties that bind them internally. Leads to erosion of sovereignty. Ex: EU.
F. EXAM: Philip Jessup article (P. 4).
1. Discusses categories of transnational law and suggests that any one of them might be a source of law for a court to decide an intn’l dispute.
4. Reimann: Evolution of Intn’l Legal Order
A. Class Model : Intn’l law = law between states.
B. original dispute resolution mechanisms.
1. War
2. Treaties
3. Mediation
C. Actors
1. Governments/states
D. Sources of Law
1. Customary international law
2. Treaties
E. Overriding principle: sovereignty
F. The Winds of Change: growing complexity of the global legal order.
1. Major changes in transportaion, human rights, the world wars, the development of organizations like the UN and EU.
2. Actors
a) International organizations
b) OECD
c) NGOs
d) Individuals: biggest radical change. Under class model, if ruler wanted to commit genocide, no problem.
e) Business entities.
3. Sources of law today
a) Treaties
b) Regulatory organizations (IMF, world bank)
c) Commercial activity.
d) Effects principle: if you do something in your terriroty that has a major effect on my territory, I might actually have JD over that activity.
4. Principles
a) No longer have absolute sovereignty
b) Unlike in the past, 100% sovereignty does not exist.
c) So sovereignty has eroded.
d) Sovereign immunity has eroded as well.
5. Dispute resolution mechanisms
a) War
b) Treaties
c) Tribunals: ICJ. Human Rights Court in Straussberg, WTO.
(1) EXAM: Do we have too many tribunals that are too specialized and that may overlap in JD? Is it a good thing to not have states adjudicating their own issues but having tribunals doing it, such as the WTO?
5. Two Important Principles
A. What’s good for the
independence, to provide for its conservation and prosperity, to organize self as it sees fit, to legislate, administer its services, and to define JD and competence of its courts.
1. Difference between recognizing govn’t and recognizing state.
D. Taiwan
1. For
a) It meets all 4 criteria, including the capacity to enter into relations with the other states.
b) They have recognition in a number of international organizations.
2. Against
a) Article II of the convention prevents them because a federal state shall constitute a sole person in the eyes of international law.
3. GOOD EXAM QUESTION: Why is Taiwan not a state but the Vatican is? Part of it is that the Vatican never seceded. Taiwan did, and so it is trying to break away from a federal government. The Vatican did not. If you look at the federal state as only state that has competence, then the Taiwanese government has no authority to say that it is not part of China and that it is its own state. If they could do that, we would have sovereign states all over the world where people just break away and claim they are sovereign.
E. Is the Vatican a state?
1. It is a state.
Evaluating if entity is a state: In asking if something is a state, consider: Where did they come from? Where did their authority come from
