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

Transnational Law Spring 2014

University of South Carolina School of Law

Professor Joel Samuels

1. Three main components of transnational law

a. Actors

b. Sources

c. Principles.

2. The Classic Model of International Law

a. Considered/Included only the literal ‘inter-nations’ law – the law between nations as sovereigns

i. No private actors were involved in international law

b. Actors

i. States

ii. The UN (Eventually)

c. Sources of Law (mostly from ICJ)

i. Treaties

ii. Customary International Law (CIL)

iii. General Practices

iv. Judicial Precedent

v. Legal Scholar Opinions

vi. UN Resolutions

d. Principles

i. State Sovereignty

ii. International Comity

iii. International Jurisdiction Bases

iv. Immunity of States and Certain Representatives

e. ICJ was turned to for dispute resolution

f. Ways to Create a New State

i. Civil War (successor state created to the original)

ii. Hostile Takeover (states that conglomerate or change power, kind of like Germany in WWII)

iii. Succession

1. Similar to hostile takeover but more just changing states

iv. Dismemberment/Dissolution (Yugoslavia or USSR)

v. Merger (East/West Germany)

vi. Conquests

1. When one country overcomes another undeclared territory and takes it into itself (pre-de-colonization)

vii. De-Colonization (only 1 colonized country left – Western Sahara)

viii. Treaty Action (the Netherlands)

ix. Self-Declaration of Statehood/National Referendum (Kosovo)

1. A group within a state decided they want to start their own state (like the US did from UK with Declaration or through Secession like the Confederacy did)

x. NOTE – there is no court where a ‘place’ can go to become a ‘state’; the UN plays a role through its Charter in according ‘state’ status to ‘places’ that have already made an effort to become ‘states’.

1. To the extent that membership in the UN is allotted only to ‘states’, that is akin to a ‘stamp of approval’

g. Obligations that Extend to New States

i. See Below

3. The Westphalian Treaties

a. Background

i. Ended the 30 years war in 1638

ii. All major European powers at the time signed onto this agreement

iii. The Treaty ended an era of feudal uncertainty and created a time of state responsibility for actions

iv. It sought to legitimize the rights of sovereigns to govern their people free from outside interference, regardless of whether any such external claim to interfere was based on political, legal, or religious principles

b. The Treaty

i. Predicated that the world consists of co-equal sovereign nation states = The Westphalian order.

ii. They contain admirable concepts of modern impact, such as religious neutrality, rights and liberties, the separation between state and church, states’ sovereignty, etc…

4. International Law Scholars

a. Hobbes

i. Discourse was framed on sovereignty and the power of states

ii. Main idea was that people need a single common power to organize and oversee them

1. This was because that singular, organized power could provide the order that was lacking in international relations at the time

iii. In the centuries before Hobbes there were shifting powers

1. The secular power of the Pope was at an all-time high but it still did not provide enough of a pillar in the international chaos

iv. Sovereignty used to have two defining features:

1. It was indivisible – it either existed or didn’t but it couldn’t be subdivided

2. It was paramount in the order of the states – if you had it, then you were a state

b. Grotius (came before Hobbes)

i. Pre-Hobbes but ideas applied post-Hobbes

ii. States acting as sovereigns are bound to interact with each other as equals

1. This binding is grounded in morality and mutual consent

iii. Personified states as behaving in ways an individual actor should

iv. States are bound to their agreements with one another

1. “pacta sunt servanda” – agreements must be kept

c. 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

i. Only states enjoy a full range of privileges and immunities from other nations’ exercises of jurisdiction.

ii. Two-part crucial concept: sovereignty is indivisible (can have sovereignty or do not have it); sovereignty is the way by which states define themselves.

5. Treaty of Osnabruck

a. Treaty starts by describing the parties involved in the treaty and the war that brought about the need for the treaty

b. Talks about states rights in several contexts

i. Reciprocal Peace

ii. Religious Choices

iii. Imposition of Taxes Within Territory (only within it’s territory)

iv. To Go to War

v. To Interpret Laws

c. Being a state also brings responsibilities (not just rights)

d. Parties mentioned that they are agreeing the war is over and, in the matter of religion, that they will allow others to observe whatever religion they choose ‘until God sorts it out’

e. Includes the “Grotiun Notion” of state equality

f. This treaty is very short; this happens when States cannot agree on specifics and they just write very broad, vague, ambiguous, etc, terms

6. 1933 Montevideo Convention (The Creation of the Criteria of Statehood)

a. Article 1 – What is needed?

i. Permanent Population – group of persons leading a common life and forming a living community even if they are widely dispersed

ii. Defined Territory (can change) – it must be naturally formed—however international law has recognized a series of very small states i.e. Vatican and Monaco

iii. Form of Government – nations in a position of dependence from other countries cannot enjoy statehood—but if in a position of association, then statehood is admissible; no statehood if created in violation of IL

iv. Capacity to Enter into Relations with Other States

v. **These four defining features are modified by subsequent articles (below)

1. Sub-federal units are not states

a. Note – the WTO says only the EU can represent the interests of members of the EU (nations) which seems opposed to Montevideo’s contention that the EU is not a ‘state’ since it does not meet the criteria (for if it did, then every member state would no longer be a ‘state’)

2. Political existence is independent of recognition by other states (being recognized or not by other states is not a defining factor)

3. States are equal (Grotius, Osnabruck, Westphalia, etc…)

b. Recognition and the United States

i. Unrecognized states have limited access to courts in the US

ii. The validity of its acts may be questioned.

1. Exception 1: president must affirmatively act to bar a government it does not recognize from suing in a US court

2. Exception 2: if the government is de-recognized during the proceedings, the courts can dismiss the action or award damages to the successor state

3. Exception 3: if it is seeking to be a P in a case filed in a US court, it must be affirmatively blocked by the executive branch

4. Exception 4: If sued as a D, it will still be accorded foreign sovereign immunity so long as they are regarded as a de facto regime.

7. The UN Charter (Will be seen many more times)

a. Article 2

i. Equality between the states (benefits and responsibilities)

ii. Sovereignty of each state within itself

1. Reminds us of Article 4 of the Montevideo Convention and Treaty of Osnabruck Part 5 Subsection 1

iii. Good faith dealings with one another (B and R)

iv. Gives the right to not have disputes settled by the UN when they are within the domestic jurisdiction of ANY state and does not require members to submit disputes

b. The ‘sources’ are:

i. International Conventions (Treaties)

ii. International Customs

iii. General Principles of Law (of civilized nations)

1. Used as a gap filler

2. Test: In order to show that a principle of law is a binding rule of international law, it is necessary that he process that it is adopted in all the world’s great legal systems and that it is the manifestation of the law of as many countries as possible

iv. Decisions by Previous International Tribunals (no difference in where they come from; all given same weight)

v. Writings by Scholars in the Area of Law at Issue

c. The first three are PRIMARY sources of international law and the last two are SECONDARY sources of international law

i. In addition, the sources are ranked by importance (i.e. Treaties before Principles)

1. As a practical matter treaties are the easiest thing to look to because customs and principles are more amorphous and harder to prove

a. The ‘amorphous’ nature of principles and customs is a point of contention amongst international law critics

ii. Only if it helps to explore 1-3 would you turn to 4-5.

d. ICJ has an additional provision allowing them to decide on an ‘equitable basis’ and disregard established treaties and law (and they do this more than they should); Art. 38(b)

e. ICJ is the preeminent place to look for a definition of an international law

11. Restatement 3d (Foreign Relations) §102 – Source of International Law

a. NOTE – considered ‘less legitimate’ because the Restatement is a generally American perspective on things

b. ‘Sources’ of International Law:

i. Customs of International Law

ii. Treaties

iii. General Principles

c. General Principles are seen as SUPPLEMENTARY and MUST look at Treaties or Custom

i. However, sources here are not ranked…can look to treaty or custom

d. Significant difference here is that treaties may create customary international law between states that have not signed onto the treaty (but only if they are intended for adherence by states generally and are ‘widely accepted, i.e. genocide)

e. In response to (d) above under ICJ, the Restatement adds a sense of ‘legal obligation’ to their definition of how a custom is created and urges against derogation from treaties and custom

f. Another difference is that GP in ICJ are of ‘civilized nations’ whereas GP in Restatement are ‘major legal systems’ (which arguably could create a different pool of states/law)

g. Main Differences from Art. 38 of ICJ

i. General principles are lower on the hierarchy

ii. Order different (customary law first, treaties lower)

iii. Treaties are sources of international law in their own right, but can also be used as evidence customs of international law.

iv. Difference in general principles is that major legal systems may be narrower than civilized nations.

v. Another difference is that restatement does not even mention judicial decision and teachings of scholars. They are not international law in their own right. They can be used as evidence to establish other sources of international law.

vi. §102(2) shows how you go about proving customary international law.