Transnational Law Outline
Professor Mathias W. Reimann
Winter 2006
Foundations: the Law of Nations
Classical View of Public International Law (prevailed until about two generations ago)
Elements: Actors, Sources, Principles, Dispute Resolution Mechanisms, Relationship b/t International & Domestic law
I. Actors: Sovereign Nation States
– States remain the preeminent actors
o The essence of statehood is its sovereignty, the principle that each nation answers only to its own domestic order and is not accountable to a larger international community, save only to the extent it has consented to do so… Bundle of Rights:
§ Capacity to enter into treatises
§ Eligible to become members of international organizations
§ Able to claim breaches of international law obligations and to seek redress
§ Enjoy full range of privileges and immunities from other nation; exercises of jurisdiction
§ Right to engage in war or armed conflict as an instrument of policy
§ Responsibility not to violate the rights of other nations
o Characteristics of states
§ Permanent population – group of persons leading a common life and forming a living community
§ Defined territory – sufficiently consistent borders, naturally formed part of the Earth’s surface, issue of size appears to be irrelevant
§ Government – truly representative of peoples and of national aspirations
§ Capacity to enter into relations with other states – sufficient independence to exercise international rights and discharge international responsibilities, independent from other nations
o Declaratory Theory of Statehood – in order for statehood to mean anything there must be some form of recognitions
§ Recognition required for access to U.S. courts
· Cannot sue as a plaintiff
o Caveat: the President of the United States must affirmatively act to bar a government it does not recognize from suing in a U.S. court
· May not assert a defense of foreign sovereign immunity
o Caveat: they may be accorded sovereign immunity so long as they are regarded as a de facto regime
§ Recognition required or the validity of its acts may be subject to question by the US and other States
o Constitutive Theory of Statehood – just because other nations will not work and play with a new political entity does not necessarily make it any less a State or its government any less effective
o Succession, Merging and Independence
§ Newly-independent: clean late
· May pick and choose the treaty obligations of its forcer colonial master
§ Split or Merge: much more difficult
· Public property and debts?
· Nationality of individuals resident in territories subject to transfer
· Liability for tortuous acts of a predecessor regime?
· Contractual relations made by a predecessor State
1. Westphalian Origins
A. Hobbes, Leviathan: Europeans sought a simpler, hopefully safer set of loyalties
a. the right of sovereigns to govern their peoples free of outside interference
b. organizing principle of the state – “that great leviathan to which we owe our peace and defense”
c. sovereign – “all men require a Common Power to keep them in awe, and to direct their actions to the Common Benefit
d. Requires an authoritarian – reduce their wills to one will, one man and an assembly and everyone else besides, his Subject
i. The key actor was the sovereign State to which loyalty was due internally and which was unrestrained externally
B. Grotius, The Law of War and Peace
a. workable theory of a law and order of interstate relations… mutual consent of sovereigns
b. A moral question – sovereigns made rules and were obliged to live with the rules once made (legally and morally binding)
i. Oath to keep commitments
ii. Treaties to be fulfilled and interpreted in good faith
iii. Old Testament morality was able to give a powerful impetus to that spirit of self-righteous and sober legality which was so characteristic of the worldly asceticism of this form of Protestantism
c. Long term advantage of sovereign states
i. Nation is not which does not press its own advantage to the point of disregarding the laws common to nations…advantages of himself and his posterity are for all future times assured
ii. There is no State so powerful that it may not some time need the help of other outside itself, either for purposes of trade, or even to ward off the forces of many foreign nations against it
iii. War and Law are inextricably intertwined – if conflicts were to be controlled, the Emperor and the Church could no longer be counted on as principal instruments of moderations à sovereign states would have to restrain themselves
C. Hobbes + Grotius à reconciling sovereignty & international order
a. contract and covenant b/t independent States
i. free agents
ii. bound by their agreements
2. Criteria of Statehood
A. Montevideo Convention of the Rights and Duties of States (Dec. 1933)
a. A permanent population
b. A defined territory
c. Government
d. Capacity to enter into relations w/other States
B. Taiwan? Republic of China à A State?
a. maintains its own national defense
b. conducts its own foreign policy
c. has full diplomatic relations with 27 countries and substantive ties w/more than 140 others
i. 89 representative offices or branch offices are maintained n the capitals and major cities of 57 countries
ii. 46 countries that do not have formal diplomatic relations w/Taiwan, nevertheless also have established representative offices or visa-issuing centers in Taiwan
d. participates in the activities of more than 2.000 international NGOs and more than 30 Taiwanese charitable groups have provided emergency relief in some 50 countries, is now a member of 18 intergovernmental organizations, including the WTO, APEC, Asian Development Bank, Egmont Group of Financial Intelligence Units of the World, also has observer status in 10 International Government Organizations (including the WHO), and “special observer” status in one
i. not a member of the UN
e. Democratically elected government represents the 23 million people living in Taiwan
f. Constitution mandates the protection of the rights and interests of citizens residing abroad
3. Privileges and Responsibilities
A. Charter of the United Nations, Article 2
a. The Organization is based on the principle of the sovereign equality of all of its members
b. All members, in order to ensure to all of them the rights and benefits resulting from membership shall fulfill in good faith the obligations assumed by them in accordance with the present Charter
c. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures
B. The USA on behalf of Henry Roberts v. The United Mexican States (1927) arbitration
a. Facts: claim on behalf of an American citizen who was arbitrarily and illegally arrested by Mexican authorities, who held him prisoner for a long time in contravention of Mexican law and subjected him to cruel and inhumane treatment throughout the entire period of his confinement…US asks for indemnity to be paid by the Government of Mexico – $17,650
b. Issues:
i. Illegal arrest?
· Ample evidence
ii. Excessive period of imprisonment?
· No definite standard proscribed by international law
· Local laws impose a 4 month – 1 year maximum for pretrial detainment depending on the seriousness of the charge
· The Mexican government failed to comply
iii. Ill treatment?
· Equality is not the ultimate test of propriety of the acts of authorities in the light of international law.
· The test is whether aliens are treated in accordance w/ordinary standards of civilization
· The treatment was cruel and inhuman
c. Holding: proper indemnity is $8,000
C. Case Concerning United States Diplomatic and Consular Staff in Tehran, International Court of Justice, 1980
a. Facts: attack on the US Embassy and kidnapping of diplomatic and consular personal as hostages w/2 US nationals à by militants
b. Analysis:
i. militants had no form of official status as agents or organs of the Iranian State
ii. their conduct can only be imputable to the Iranian State if it were established that, in fact, on the occasion in question the militants acted on behalf of the State, having been charged by some competent organ of the Iranian State to carry out a specific operation
iii. But, just b/c the attack cannot be imputed to the State does not make the state free of all responsibility if its own conduct was in conflict w/international obligations
iv. Iran is obligated by provisions in the Vienna Conventions of 1961 & 1963 to take appropriate steps to ensure the protection of the US Embassy
· Art. 22 (1961) – the receiving State is under a special duty to take all appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission impairment of its dignity
· Art. 29 (1961) – the person of a diplomatic agent shall be inviolable and he shall not be liable to any form of arrest or detention
· And many, many more which have the effect of requiring “appropriate steps to protect the premises”
v. Upon completion of the attack by militants the Iranian government was required by international law to make every effort, and to take every appropriate step to bring the flagrant infringements of the inviolability of the premises, archives and staff to a speedy end and to restore US control and in general to reestablish the status-quo and to offer reparation
· No such steps were taken
· Expressions of approval were made by Iranian authorities
· Refused to order an end to the occupation
· Expressly forbade the militants to meet the special representatives sent by President Carter to try and obtain the release of the hostages and evacuation of the Embassy
· Seal of official government approval – the hostages would remain as they were until the US handed over the former Shah for trial and returned his property to Iran
· The Militants had now become agents of the State for whose acts the State itself was internationally responsible
c. Holding:
i. The Iranian Government failed to take any steps to prevent the attack or to stop it or to compel the release of those they had made prisoners
· More than mere negligence or lack of appropriate means
· Authorities were fully aware, had the means, and completely failed to comply with these obligations
ii. The Iranian authorities’ decision to continue the subjection of the premises of the United States Embassy to occupation by militants and of the staff to detention as hostages à multiple clear breaches of the applicable provisions of the Vienna Conventions
iii. Iran has an obligation to make reparation for the injury caused to the US by it multiple breaches of international law (amount to be determined when Iran meets it obligations)
D. Responsibility of States for internationally wrongful acts, adopted by the International Law Commission (2001)
a. Part One, Chapter One: The Internationally Wrongful Act of a State
i. Responsibility
ii. Elements of an Internationally wrongful act of a State
· Action or omission
· Attributable to the State; and
· Constitutes a breach of an international obligation of the State
iii. Characterization as wrongful
· Not dependant on internal law
b. Part One, Chapter Two: Attribution of Conduct to the State
i. Organs of a State
ii. Persons or entities exercising elements of governmental authority
iii. Organs placed at the disposal of a State by another State
iv. Excess of authority or contravention of instructions
v. Conduct directed or controlled by a State
vi. Conduct carried out in the absence or default of the official authorities
vii. Conduct of an insurrectional or other movement
viii. Conduct acknowledged and adopted by a State as its own
c. Part Two, Chapter One: Content of the International Responsibility of a State
i. Legal consequences
ii. Continued duty of performance
iii. Cession and non-repetition
iv. Reparation
v. Irrelevance of internal law
vi. Scope = to another State, to several States or to the international community as a whole
d. Part Two, Chapter Two: Reparation for Injury
i. Form = restitution, compensation and satisfaction, singly or in combination
II. Sources: Custom, Treaties and Other Materials (no inherent hierarchy, all co-equal sources)
1. The Traditional Catalogue: ICJ, Art. 38
A. International conventions recognized by the contesting states
B. International custom
C. General principles of law
D. Judicial decisions and the teachings of the most highly qualified publicist of the various nations
2. Primary Authority: Customs
A. Consistent state practice over some time as a matter of legal obligation (devilishly hard to prove)
a. Law made by consent of people w/o any formal enactment by governmental entities
i. trade usage
ii. community customs
b. ICJ, Art. 38 – evidence of a general practice accepted as law
i. Elements of Proof
· Have international actors really followed the rule? Has the practice been consistent? (uniformity need not be perfect) Over a sufficient period of time? (does not have to be a long period of time – i.e. theory of continental shelves, 15 years)
· High degree of consistency and uniformity of observance by most of the international community
· Why an international actor observed a particular practice?
· Opinio juris – out of legal obligation or courtesy
c. The Paquete Habana, US Supreme Court, 1900
i. Facts: Two Cuban fishing boats had been captured by US naval forces in the Spanish-American War and condemned as “prizes of war”
ii. Issu
hough India retained the right to exceptionally suspend such passage. As for a right to move troops and weapons over Indian territory, previous permissions to do so had been “mere” comity or courtesy à NOT CUSTOM
i. it was futile to declare global custom in a case where it was easier to simply describe and characterize a course of dealing b/t the two parties to the dispute
· private (bilateral) dispute à silence implies acquiescence
e. Notes:
i. What constitutes effective protest? It seems that, with the exception of regional custom, fortune favors those States that aggressively stake-out new rules and hope that other nations simply do not notice of fail to act in a timely or compelling manner
ii. What about new States? Bound to the existing rules of custom as the price of admission to the community of nations; If a new State dislikes a rule of custom, it can compete in the global marketplace and struggle to change it.
G. SUPER CUSTOMS
a. Customs of Superior Importance
i. Jus Cogens – some rules have become so central that we will not let any State opt-out of them, even if they have loudly and conscientiously protested, nor to enter into private agreements to “contract out” of them
ii. plus, any State – not just the countries immediately affected, may file a claim for their violation (erga omnes)
· Against apartheid
· Against genocide
· Against war crimes
3. Primary Authority: Treaties (there is no legislature, all written law is based on consent)– gradually becoming the dominant source of rules, beginning to cover more and more ground
A. Nomenclature
a. treaty, pact, covenant, protocol, convention, declaration à international agreements (consent based, very close to contract making)
i. distinct agreements: (1) executive agreements, (2) private contracts
ii. titles: often named by the place of where they were negotiated and adopted + a more specific indicator (year or topic)
b. What is a treaty?
i. Contracts-Legislation Duality
· settle disputes, ordain rules, political, economic, social…
· no topic is beyond the limits of a treaty
ii. Codification vs. Progressive Development
iii. Bilateral (2) and Multilateral (3+)
· UN Charter -195 parties!
iv. 1969 Vienna Convention on the Law of Treaties (a treaty on treaties J) – US is not a party, but regards the rules enumerated in the treaty as customary law
· Treaty = an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or two or more related instruments
· oral agreements – agreement plus custom
· unilateral declarations – whether the declaring State intended to create a legal obligation or induce reliance on the part of other States
· another governing law may be explicitly specified, but in the absence of an express clause, international law governs
B. Relationship to Custom: co-equals of international law
a. can treaties bind non-parties?
i. no (ius tertii)
ii. unless…
· the contract is pertains to an “objective regime”
· UN Charter – concerning world order
· 1959 Antarctic Treaty
· EU –regional economic integration
b. if a State explicitly does become party to a treaty
i. North Sea Continental Shelf Cases – Denmark and the Netherlands asserted that the Federal Republic of Germany was bound to a rule of equidistance in delimiting their respective continental shelves even though Germany had purposely not signed à ICJ held that the equidistant rule was a progressive development and not an existing custom and that therefore Germany was not bound
· If existing custom, then a State must prove that it persistently objected to the new custom
· “…it would be profoundly mistaken to believe that, in case of conflict, custom will be trumped by treaty.”
· Jus Cogens – peremptory norms that may not be abrogated by treaty (i.e. an agreement sanctioning genocide)
c. both treaties and customs must be assessed to understand any particular rule
C. The Process of Treaty-Making
a. negotiation – diplomats and representatives are given instructions and “full powers” to draft
b. adoption – agreeing to a final text
c. signing – has no legal implications whatever… its just a proposition, the treaty does not yet have any force, but it does obligate the parties not to actively subvert the goal of treaty
i. become legally binding at the moment of signature OR
d. ratification – the act by which a State makes clear its intent to be legally bound (in the U.S. all treaties must be signed by the president, submitted to a 2/3 vote in the Senate, and finally “proclaimed” treaty by the president – becomes binding at the moment of proclamation)
e. in force – minimum number of memberships? Only bound vis-à-vis other ratifying states
i. generally – before becoming a signatory, but the treaty is already operative more broadly
ii. in a particular state (you hope it comes to life) – Convention on the International Sale of Goods, needed 15 signatories, the moment there were 15, the treaty entered into force and became binding
f. Reservation (anything that changes the legal effect of a treaty) – U.S. regarding the Treaty of Versailles and League of Nations Covenant (highly problematic in multilateral agreements, in bilateral agreements the process of negotiation usually begins anew w/o substantial legal consequences…ICJ reservations can be made as long they are not contrary to the “object and purpose” of the Convention
i. opt-out clauses, package deals, “picking-and-choosing”
Un-Ratifying à you can get out, notice
