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Transnational Law
University of South Carolina School of Law
Samuels, Joel H.

Transnational Law Outline
Samuels—Fall 2013

Answering International Law Questions
·         (1) Actors
·         (2) Sources of law
·         (3) Basic principles/overarching ideas
·         (4) Dispute Resolution Mechanism
·         (5) International or Domestic Law
Actors: Nation States
I. The Westphalian Origins
·         The Westphalian System is the modern conception that the world consists of co-equal sovereign states. It legitimated the right of sovereigns to govern their people free from outside interference.
o   It stressed sovereignty.
o   Pacta Sunt Servanda:
§  This is the notion of states being bound by their agreements and states being bound to act in good faith
·         (i.e. treaties were meant to be fulfilled and interpreted in good faith).
·         This is the classic law of nations presents a relatively straightforward picture with regard to its actors, its concept of (state) interaction (and sovereignty), its source of law, its dispute resolution mechanisms, and the relationship between international and domestic law.
o   In terms of actors, it fully recognized only sovereign states. The interaction between states was based on a strong conception of sovereignty that entailed certain rights and priveleges , certain duties and responsibilities, and the idea that states should exercise comity (i.e., deference and mutual respect) vis-a-via each other. International law emerged largely from two sources: customs and (mainly bilateral) treaties. Dispute resolution beyond diplomacy or war, (i.e., through legal proceedings), lacked permanent institutions and had to be organized ad hoc, mainly through arbitration. International and domestic law were considered fundamentally different matters although opinions differed as to whether they belonged to different spheres (dualism) or were parts of one all-compassing legal order (monism).
·         It comes from the Western European legal and political culture between the 17th century and the early 20th century, arising from diplomatic and political practice as well as scholarly writings. It owes much to the 17th and 18th century natural law and 19th century positivism and nationalism.
·         The traditional regime of (public) international law is often called the Westphalian System. It is a place in Northern Germany and it gave the traditional international regime its name because it was the location of the Peace Treaty that ended the Thirty Years’ War in 1648.
·         Mark W. Janis, Sovereignty and International Law: Hobbes and Grotius
o   Hobbes and Dibon framed the discourse on sovereignty.
o   People needed a single power to organize and oversee us or there would be chaos
o   Sovereignty was paramount and indivisible into the 20th century—viewed as impossible to divide until 1950
o   Sovereignty is essential to national identity.
o   Grotius said that states were bound to interact with one another as equals; moral vision
o   Notion of states behaving as persons was groundbreaking
o   No longer would churches/emperors make the call
o   What Hobbes, Dibon and Grotius is still popular in international law today.
·         Treaty of Osnabruck
o   Starts with the “who” is signing it and how it came about
o   Principle of comity—notion of states as behaving as equals; this is found in the first paragraph (p. 40)
§  Some states are more equal than others.
·         Reality of the world—critics of international law point out the “more equal” idea.
o   See a lot of Grotius principles in the treaty
o   Two “people” are making commitments for other “people”
o   Agreeing to stop fighting/can practice any form of Christian religions (Calvinism/Protestantism/Catholicism)—still an idea of divine power
o   Signatories have rights (paragraph 8, p. 41)
§  Sounds like the U.S. Constitution—it is almost a perfect parallel situation historically
o   The structure of the treaty is like a priority list.

II. Criteria of Statehood
Legal versus Political Recognition of a State:
Objective Recognition of Statehood
Being a state does not depend on being recognized by a majority of states—it does not matter in a political sense; but ultimately it does matter if a state is recognized as a matter of law by international tribunals
i.e., the United States would prefer not to recognize Cuba as a state, but since international tribunals recognize Cuba, Cuba’s statehood is objectively recognized.
The recognition of a state is distinguished from the recognition of a government
The recognition of a state is distinguished from diplomatic relations.
De facto Control
Acts of unrecognized governments will still be given validity, so long as government has de facto control of the state
Subjective Recognition of Statehood:
This is not the view of Montevideo Convention but there are those that believe recognition by other states is a requisite of statehood.
Consequences of Non-recognition:
May not be able to sue a plaintiff (i.e. may be affirmatively blocked by the United States government because unrecognized); may be able to be sued as a defendant, if unrecognized and not regarded as de facto regime
·         The Montevideo Convention on the Rights and Duties of States is understood to be the clearest statement of the criteria of statehood. It is one the most important treaties.
o   The state as a person of international law should possess the following qualifications (Article 1):
§  (1) Must have a permanent population
·         No minimum limit is prescribed.
·         Requires states to have a permanent population but it is not a rule relating to the nationality of that population
§  (2) Must have a defined territory
·         Governing power with respect to territory
·         Territorial sovereignty involves the exclusive right to display the activities of a state
·         No minimum area of that territory
§  (3) Must have a government
·         Governmental authority is the basis for normal inter-state relations; what is an act of a State is defined primarily by reference to its origins of government—legislative, executive or judicial
§  (4) Must have the capacity to enter into relations with other states.
o   The political existence of the state is independent of recognition by the other states (Article III).
§  Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its service, and to define the jurisdiction and competence of its courts.
·         The exercise of these rights has no other limitations than the exercise of the rights of other states according to international law.
o   States are legally equal, enjoy the same rights, and have equal capacity in their exercise. The rights of each one do not depend upon the power that it possesses to assure its exercise but upon the simple fact of its existence as a person under international law (Article IV).
§  Examples:
The European Union:
The European Union is not a state because it does not really have its own territory or the full capacity to enter into relations with other states.
Michigan is not considered to be a state because it can’t enter into relations with other states.
Taiwan is considered to be a state in the international sense, even though it doesn’t claim statehood.

Interaction: States in the Classical System
I. What does sovereignty mean?
·         Sovereignty is not a legal term; it is political concept from which legal consequences (rights and responsibilities of nation states) were derived.
·         Dan Philpott, Revolutions in Sovereignty
o   Sovereignty is legitimate authority (not a power) prescribed by law. Supremacy has always been an element of sovereignty—the holding of sovereignty has always been the highest power. A final party of sovereignty is territoriality—the people over whom the holder of sovereignty rules are defined by virtue of their location, within border, not by some principle, such as kinship or religious belief.
o   Sovereignty comes the states itself and is only bounded by the notion of territoriality.
o   There are useful distinguishing terms in sovereignty. Internal sovereignty and external sovereignty are not considered to be distinct types of sovereignty but rather complementary, always coexistent, aspects of sovereignty.
§  Internal Sovereignty
·         A monarch, the people and the constitution can represent the state within borders and be immune from external intervention
§  External Sovereignty
·         The state has always been the chief holder of external sovereignty.
·         This has always remained relatively constant and this is what international lawyers have in mind when discussing sovereignty.
o   Raising armies/taxing/building/signing onto treatie

that a state can do whatever it pleases as long as it does not violate rules of international law by which it’s bound.
·         There are downsides to being a state:
o   Implicates liability for violations of international law;
§  including state liability for non-state actors
·         see Tehran case, below
o   Duty not to violate the rights of other nations
A. Sovereign Equality
·         Gerry Simpson, “Great Powers and Outlaw States”
o   States as equal, or at least, that all states possess sovereign equality
o   “No principle of general law is more universally acknowledged than the perfect equality of nations.” Chief Justice Marshall in The Antelope Case.
o   The orthodoxy on sovereign equality assumes that the international system contains a plurality of states and that these states are both similar and different, i.e. capable of enjoying equality in some domains but distinct in others.
o   There is both internal sovereignty (monopoly of legal authority in a territory) and external sovereignty (the right to territorial sovereignty and immunity from suits in courts of another states).
o   State equality requires the absence of formal superiority and subordination in legal relations between states. So no state can sit in judgment of another state or sign treaties on behalf of another state. Nor can a state procure the consent of another state to an agreement or treaty through the use of physical coercion. States recognize only one legal superior and that is international law itself. In addition states are said to be bound only by those rules to which they have agreed to be bound.
o   Sovereignty equality can be used as a justification for war (self defense/ territorial integrity) and for the possession and threatened use of nuclear weapons (commitment to sovereign equality.
§  On the other hand, the prohibition on the use of force (except in self defense and collective security) secures implementation of the sovereign equality norm.
o   Sovereign equality is the guarantee of state autonomy in the domestic sphere and pluralism and diversity in the international system as a whole.
·         Charter of the United Nations
o   Only states can be members of United Nations.
o   Everyone is equal (Article 2, § 1)
§  But security council gives permanent veto to only 5 members {without a hint of irony/tension}
o   All members shall fulfill their obligations in good faith (Article 2, § 3)
o   All members shall settle their disputes peacefully in such a manner that international peace and security and justice are not encouraged. (Article 2, § 3)
§  Heart of security council is to maintain international peace and security
o   All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations (Article 2, § 4).
·         United Nations General Assembly Declaration #2625
o   In General Assembly, all states only have one vote.
o   This declaration deals with state rights.
§  (a) States are equal.
§  (b) States enjoy the rights of full sovereignty.
§  (c) States have to respect the “personality” of other states.
§  (d) The territorial integrity and political independence of the state are inviolable.
§  (e) Each state has the right freely to choose and develop its political, social, economic and cultural systems.
§  (f) Each state has the duty to comply fully and in good faith with its international obligations and to live in peace with other states.