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

Transnational Law

Introduction: 1. Case Study: From Russia with Love
1.      Actors
a.       Government of Russia
b.      Government of US
c.       Organizing Committee (Russia – part of government), Russian Ministry of Culture
d.      The Foundation (US – independent NGO)
e.       Russian-American family (private actor)
f.       American lawyers who practice in Moscow
g.       Max Valenstein (American citizen)
h.      Alexander Vronsky (Russian National)
i.        Russian Embassy
j.        Corcoran Gallery

2.      Sources of Law – the places from which we would derive the legal norms to solve disputes that arise from different scenarios
a.       New York law – choice of law provision
b.      ICC – procedural rules that will apply
c.       Contract between the parties
d.      Russian criminal law
e.       Federal criminal law
f.       International treaties

3.      Principles – big ticket issues that might come into play in analyzing this case
a.       State sovereignty
b.      Sovereign immunity
c.       Doctrine of extraterritoriality – the power of a state to rule on a citizens’ actions in another country
d.      Rights and protections of citizens – citizenship and what it means
e.       International arbitration
f.       Jurisdiction
i.      Power of state to issue its own rules for how it treats others (Houston) Jurisdiction to prescribe – the power to make laws.
ii.      Power of the state to create those laws in the first place – Jurisdiction to adjudicate – power to use those laws.
iii.      Jurisdiction to enforce – the power to enforce decisions made under that law or the power to use your mechanisms to enforce decisions made elsewhere
4.      Venues
a.       ICC in Paris
b.      International Court of Justice (only hears disputes between states)
c.       Moscow office
d.      Federal District Courts in Houston, DC and New York
e.       Moscow Criminal Court System

5.      Other Issues: (1) Prosecution of foreign nationals; (2) The relationship between international law and comity (deference to other states). 
Thinking about Int’l law questions, break it down:

MODERN TRANSNATIONAL LAW: as per Jessup (lawyer/judge on ICJ): umbrella concept of laws that deal with affairs that transcend one national boundary—p. 5 1st blue
1. INTERNATIONAL LAW (classic/public): law that governs the relationship among sovereign nations on the world stage.
Public International Law (law of nations): governs transactions between public actors—more classic
Actors: (1) States, (2) int’l orgs, (3) NGO’s, (4) individuals, (5)business entities
Sources: (1)Treaties, (2) Customary Int’l Law, (3) General Principles, (4) regulatory regimes, (5) Soft-law (non-binding sources)
Principles: (1) Sovereignty, (2) comity, (3) principles of jurisdiction
Special Areas: (1) dispute resolution, (2) int’l and domes law, (3)war and peace, (4) law of the sea, (5) human rights, (6) int’l trade, (7) int’l environmental law
Private International Law: international law governing transactions between private actors over
1.International Disputes thru Int’l Litigation and Arbitration
2. International Transactions

DOMESTIC LAW –  dealing with international issues: not international law by its nature, but in its subject—(i.e. export/import control, economic sanctions, Criminal law (re foreign acts), Immigration & Asylum); Comparing another nations laws to your own; studying the differences, similarities and interrelationships of different systems of law.

Actors: Sovereign Nation States
1.    Westphalian Origins – modern conception that the world consists of co-equal sovereign states; legitimated the right of sovereigns to govern their ppl free from outside interference. Birth of modern international law; Stressed SOVEREIGNTY.
o   Pacta Sunt Servanda –notion of states being bound by their agreements; bound to act in good faith (i.e. treaties were meant to be fulfilled and interpreted in good faith).

2.    Criteria of Statehood – Montevideo Convention on Rights and Duties of States (1933)*Must KNOW BACK TO FRONT FOR EXAM
Article I (Requirements to be defined as a state) 
1.      permanent population (size of pop irrelevant)
2.      a defined territory (size of territory irrelevant)
3.      government; and
4.      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, juridically equal, same rights, same capacity to exercise

Reservations to the conventions defined – There is a certain part of the treaty that you refuse to accept. So long as it is not center to the treaty, it will be ok. If, however, it is central, then there is a problem.

a.      EU: not a state, because it does not really have its own territory or the full capacity to enter into relations with other states.
b.      Michigan: can’t enter into relations with other states.
c.       Taiwan is a state in the international sense, even though it doesn’t claim statehood.

Legal vs Political Recognition of a State:
a.      Objective Recognition of Statehood –Being

e US. Roberts will have to petition the US to get his money. 

w US raises three claims: (1) Wrongfully arrested; (2) Excessively long imprisonment; (3) Cruel and inhumane treatment while imprisoned

w Analysis:
1.      Commission finds that the Mex authorities had ample evidence to arrest him for the crime.
2.      Valid claim. Mexican constitution says that he needed to be tried within four months if the crime has a maximum penalty not to exceed 2 years imprisonment and within one year if the maximum penalty is greater. The longest he could be held was one year. Roberts was held about 19 months.
3.      Valid claim. In this case the commissioners do not look to the way Mexico treats its own citizens, but to the way “civilization” treats its prisoners. A serious encroachment on the sovereignty of Mexico.

Paragraph 9 says that the actions of a sub-federal (Regional) unit/authorities can be imputed to the federal state.

Case Concerning United States Diplomatic and Consular Staff in Tehran – The US is suing Iran. The case is heard by the International Court of Justice – a tribunal created to hear disputes between states. 

w The ICJ can get cases in two ways
1.      State brings the case to the ICJ – This case is brought by the United States. It could have been brought in the US since a US embassy was involved. Cases were brought around the world – everywhere Iran had assets.
2.      UN refers cases to the ICJ for advisory opinions.

w What redress does the US want? Reparations in cash. The US does not ask for the hostages’ release but for money. If this case were brought in the US they could ask for a positive injunction for the release of the hostages. There is no provision for injunctive relief in international law.

w Only the UN securities council is authorized to authorize the use of military force. International tribunals do not have the authority to use military force as an enforcement mechanism.

w What is Iran being accused of? Violating provisions of the Vienna Convention on Consular Relations; in not protecting the embassy and not taking action to compel the militants to withdraw after the embassy was taken.