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

Transnational Law Outline
FALL 2016 – JOEL SAMUELS


WESTPHALIAN ORIGINS (1648) p36
Made up of the Treaty of Munster and the Treaty of Osnabruck
Era of State power and State responsibility.
Established State model for international law:
: All loyalty is due to the state internally and the State is unrestrained externally by other States.
Framers of International Law
Hobbes & Bodin: Sovereignty
Leviathan: people need a single common power to organize and oversee them
Sovereignty is indivisible and paramount under this theory
Predated Peace of Westphalia and influenced the thought behind it
: Inter-state relations
States are bound by the
Notion of states behaving as persons
States make the rules of the game, not the pope or HRE

Believed war and law are “inextricably intertwined”
Treaty of Osnabruck (1648) p39             (multilateral peace treaty)
Role of religion notable in this treaty.
Between HRE and Sweden + France
Idea of coequal sovereignty is central (Grotius!) leading to the “Westphalian Order”
Stop fighting
Religious autonomy for all Christians
What do the States get?
Right of Non-Interference.

Runs contrary to modern concept of R2P.
Sovereign equality
Territorial rights
Right to declare war
Power to tax
Power to form alliances
Right of suffrage

Historical rights of signatories & sovereign powers
Looks like US Constitution
Right to defense is prominent
= person who signs on behalf of a state (representative of a state)

CRITERIA FOR STATEHOOD (States give themselves the power to exist)
Montevideo Convention (1933) p42
Article 1: Definition of statehood:
(a) A permanent population;
MEMORIZE (a)-(d)
(b) A defined territory;
(c) Government; AND
(d) Capacity to enter into relations with the other states
(author) Independence – prerequisite for statehood
(author) Sovereignty – legal incident of statehood
w/ the test:
Statehood is all in the eyes of the beholder
Can be mushy and problematic (think Sealand example)
**Bottom Line—Not a great definition, but all we have so far
Article 2: State shall constitute sole person in eyes of international law
SC isn’t a state because .
Article 3: Existence of a state is independent of recognition by other states
Problem with the convention: By its logic the EU is a state but obviously is not in the real world. Therefore:
Statehood is like pornography; you’ll know it when you see it.
Chapter 2. Interaction: States in the Classical System

The Meaning of Sovereignty

Philpott: supremacy bounded by territoriality
Comes from states themselves by declaring it
Sovereignty includes Supremacy and Territoriality
Supremacy: The highest and final authority (complete control)
Territoriality: Supremacy exists within a State’s borders, which also implies immunity from external interference (aka external sovereignty)
Internal sovereignty: monopoly of legitimate legal authority within a State's territory
External sovereignty: if the state is private property, external sovereignty is a no trespassing law.
Suit of armor example: body within is internal sovereignty, armor is external sovereignty

Brierly: State’s claim to a bundle of rights = sovereignty (more practical conception of sovereignty)
Power to:
judge its own controversies
enforce its own conception of its rights
increase its armaments without limit
treat its own nationals as it sees fit
regulate its economic life without regard to the effect of such regulations upon its neighbors
Assertion that these rights must be limited
: “Las Vegas principle.” A state can do whatever it wants within its own borders without interference of other states or the UN.
: violation of a jus cogens norm.

Island of Palmas (Perm. Ct. of Arbitration 1928) p52-55
1898 Treaty of Paris: Philippines go to USA from ESP. NED claims island of Palmas and alleges that Spain did not own Palmas in 1898 because th

f another state.

The Corfu Channel Case (ICJ 1949) (UK v. Albania)
Corfu Channel was Albanian territory and when Brit ships passed through it they struck mines. UK claimed that Albania was responsible for the mining and swept the channel for mines, finding some. Albania claimed that this violated its sovereignty.
Court: “between independent States, respect for territorial sovereignty is an essential foundation of international relations.” UK lost b/c it had violated Albania’s sovereignty.
: Great power or not, no state can bully other states by infringing on their sovereignty.

: On exam, will most likely ask an essay question about jurisdiction à Which states can exercise jurisdiction and under which principles?
: I really just wasn’t a bullet-point list of the jurisdictional principle(s) under which each state does or does not have jurisdiction.

Basic rule: The Lotus Presumption
“States are free to exercise their jurisdictional competences to the absolute limit that international law allows.” [UNDERSTAND CONCEPT COLD] Permissive System
Three types of Jurisdiction:
Jurisdiction to prescribe: the power to make laws
Jurisdiction to adjudicate: power to try/hear cases
This is the jurisdiction studied in CivPro
Jurisdiction to enforce: power to enforce decisions made elsewhere

Bases of Jurisdiction In International Law

Effects Doctrine:

Victim’s Nationality: Not widely accepted basis


EXERCISE IN INT’L JURISDICTION – p83
: Not applicable for France b/c the contract was entered into in Senegal
Senegal could exercise jxn