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

Transnational Law
Fall 2006
Samuels

PART ONE: FOUNDATIONS OF THE LAW OF NATIONS

I. Background of Course

Exams
25 minute T/F Questions
2.5 hour Essay It will be taken from the headlines that has gone on around in the world.

Tips
Daily think about what the key (4-5) points are, and PREPARE for the questions.
Be prepared to answer both sides of the case during Exams
Details, Details, Details

Goal in Classes
know the basics and utilize that to push/pull on both sides; that’s what the best lawyers d

Exam Review
Remember if it says write a memo, make sure you do it. Same for any other directions.
25 minutes 50 T/F
2 hour Essay question
Answer the question that is asked!
Kitchen sink doesn’t do well with Prof. Samuels- must spot the ISSUES!!!

Examples:
Who could sue Borat?
United States and Iran – how do international organizations play in.
6 page answers can be good if you know your stuff
15 pages can be bad if you are just laundry listing me

Be able to mix and match.

Study Tip: Using current events can be good
Friday, Dec.8 5pm No longer take questions. Sign up sheet is on the door tomorrow.
Email questions the night before.

Transnational Law Defined
all law which regulates actions or events that transcend national frontiers (Phillip Jessup)

(Review Chart p.20)

Scope of Transnational Law
Includes both civil and criminal aspects, it includes what we know as public and private intl. Law, and it includes national law, both public and private

Three Main Focus Areas of Intl. Law:

Actors
Sources
principles

Case Study: From Russia with Love
Facts: US and Russia agree t do this show of Russian cultural artifacts, bribery ensued, suit by Russian family against Russian group

Identify Sources, Actors, and Principles

Question to consider: what are the rights and responsibilities of intl. Law?

II. Foundations: the Law of Nations
A. Background

Transnational Law Components:

Comparative Law
Public Intl. Law
Private Intl. Law
Domestic Law (on Intl. Issues)
Supranational Law

Comparative Law

Foreign Law
Legal Systems of the World
Actual Comparison of Particular Areas

Supranational Law
(law made by bodies bigger than the states)

EU Law
Jus Cogens
WTO
NAFTA

Public Intl. Law

Actors
Sources
Principles
Special Areas

Private Intl. Law

Intl. Disputes
Intl. Transactions

Models of Intl. Law
1. public intl. Law
Classic Model
Inter-national law between nations
Sources of Public Intl. Law:
i. Actors = fully recognized sovereign nation states
ii. Sources = bilateral treaties, customary intl. Law
iii. Principles- state sovereignty, comity, jurisdiction
2. private intl. Law
Newer Model
Deals w/ nations and other states

B. ACTORS: Sovereign Nations Stations
1. The Westphalia Origins

Historical Development
Thirty Years War
1648 Peace of Westphalia was an attempt to reconcile between European Countries.

Philosophy Development of Sovereignty and Intl. Law
1. Hobbes
State sovereignty
Crucial element in the peace treaty the notion of SS.
2. Beaudan – enters into the mix of state sovereignty:
two crucial thoughts:
1) sovereignty is individual (either have it or don’t’) aka intl. Equivalent of property
2) means as which states use to define themselves
Think: Samuels research
3. Grotius (moral philosopher)
Key Concepts:
1. Notion of states acting as sovereigns are bound by a moral vision to interact with one another as equals (HUGE CONCEPT)
2. State as persons (state as an entity) According to him, no longer emperor, pope, etc making the notion
3. states being bound by their agreements aka pacta sunt (servanda)
4. Leviathan
One common power
Requirement for a single, authoritarian state

Elements of the Peace of Westphalia
Treaty of Osnabruck
Language of the treaty reemphasizes the Grotius and Hobbes bases for intl. Law.
Think: Article VIII

Westphalian Order
Concept that the world consists of co-equal sovereign nation states

Structure of treaty
1) Who
2) Why
3) Goals
4) Substantive provisions

2. Criteria of Statehood
Montevideo Convention on Rights and Duties of States (12/1933)
*Must KNOW BACK TO FRONT FOR EXAM

Article I (Requirements to be defined as a state)

permanent population
a defined territory
government
capacity to enter into relations with the other states

Article III and IV (AUTHORITY)
Set forth the principles of the of states power e.g. right to integrity and independence, conservation and preservation, jurid

Traditional List of Sources
ICJ Article 38

Intl. Conventions
Intl. Custom
general principles of law recognized by civilized nations
Subsidiary Sources:

i. Arti.59
ii. Judicial decisions
iii. Teachings of the most highly qualified publicists

Weight? 1, 2, & 3 all have EQUAL weight.

R3d (Foreign Relations) §102 Sources of Intl. Law
1. CIL
2. intl. Agreement
3. GP common to the major legal systems of the world

2. Customary International Law (CIL)
Ask Yourself: How does intl. Custom become law?

Customary International Law Defined (CIL)
General and consistent practice of the states followed by legal recognition
States universally abide by, or accede to, out a of a sense of legal obligation and mutual concern. (Flores)

The Paquete Habana, The Lola 175 U.S.677 (1900)
Facts: Cuban shipped seized and sold for war prize by the US in the deep sea

Issue: US v. Cuba bring case to determine w/n you can capture fishing vessels of innocent parties during time of war.

Analysis: Court begins by tracing the history of fishing vessels and their protection from seizure. The court cites writers on international law, treaties negotiated between heads of states, comity, and treatises. The court applies the CIL test.

Holding: Vessels belonging to citizens of the enemy state, and devoted to fishing along the coasts, can’t be subject to capture except if they are used for warlike purposes or they are vessels of great fishery such as whaling.

Two Part Test for CIL:

rule has been followed as a general practice (Objective Test)

a. Key Issue: Consistency and Uniformity of practice , not required by ICJ

rule has been accepted from a sense of legal obligation (Subjective Test)

a. Opinio Juris: whether the states have followed these practices out of a sense of LEGAL obligation.