Transnational Law Outline

Transnational Law Outline
Taught by: Prof. Mark Drumbl
Fall 2008
 
 
vI. Introduction
ØA.      What is International Law? Etc.
§  Law Governing states/nation-states, principally in their relations w/each other.
§  Classical definition of a state: The state as a person of international law should possess the following qualifications:
§ (a) a permanent population;
§ (b) defined territory;
§ (c) a government; and
§ (d) capacity to enter into relations with other states.”
§ Montevideo Convention on the Rights and Duties of States, adopted by the 7th Conference of American States (1933).
§ International Organizations: Organizations of states (the UN, WTO, etc).
§ Persons: corporations, other legalized entities, and natural persons.
§ International law is law even though there is no supreme international legislature, executive, or court system.
§ Private International law is conflict of laws, what state’s law applies to a private controversy when two or more states’ laws might possibly apply.
§ Where does International Law come from?
·      a)      (1)The [International Court of Justice], whose function it is to decide in accordance with international law such disputes as are submitted to it shall apply:
¨     a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
¨    b) international custom, as evidence of a general practice accepted as law;
¨    c) the general principles of law recognized by civilized nations;
¨    d) subject to the provisions of Article 59 judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
¨     -Judicial opinions, laws of equity. Statute of the International Court of Justice, Art. 38 (1945).
·      b)      2). This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.
§ Question on Art. 38: is this a hierarchy, or steps, or is it only a list?
§ Note: Art. 59 reads: “The decision of the Court has no binding force except between the parties and in respect of that particular case.”
§ International Conventions
·      International conventions are treaties and other agreements between and among states/international organizations. In general these agreements apply only to parties of the agreement.
·      When a state ratifies a treaty it may attach a reservation to a portion it does not wish to accept, so long as the reservation does not defeat the overall object and purpose of the treaty.
§ When will a treaty apply to domestic courts of a state?
·      When the state’s legislature has made the provisions of the treaty part of domestic law sometimes called national or municipal law.
§ Custom
·       The emergence of a principle or rule of customary international law would seem to require presence of the following elements:
¨    (a)      concordant practice by a number of States with reference to the type of situation falling within the domain of international relations;
¨    (b)      continuation or repetition of the practice over a considerable length of time;
¨    (c)      conception that the practice is required by, or consistent with prevailing international law; and
¨     (d)     general acquiescence in the practice by other States.
Ø -Working Paper for the International Law Commission UN Doc. A/CN.4/16, p. 5 (1950).
¨     (5)     elements a, b, and d are sometimes called the practice component of custom; c is sometimes called the opinio juris.
·       An international custom is binding law. In general customary int’l law may be changed by treaty, as between parties to a treaty. However, sometimes customs are said to be jus cogens, so important that they cannot be changed even by treaty. Also, sometimes a law in a treaty will have become so widely accepted that it becomes custom and applies to parties outside the treaty. This can also happen with the resolution of an international organization, even if the resolution is non-binding. (UN resolutions). If a state objects from the beginning, unless the law is jus cogens the state will not be bound by it.
§ General principles of law: laws that will be found in virtually every legal system. General principles of law will apply when there is no controlling treaty or international custom.
§ Judicial decisions are subsidiary means of determining rules of law. Traditionally these do not have the same precedential value as in common law countries. However, judicial tribunals may develop their own rules of precedent.
§ Some legislative or judicial acts of international organizations are sources of law.
ØIntroduction Class 8/21/08
§ International Law will come up and clients will necessarily have problems that come up that are international.           
§ 4 Fact based modules:
·Criminal Law and Procedure, Human Rights, Trade and Investment Law, Property Law and Privatization.
§ Will read a wide variety of legal materials.
§ Exam: Multiple Choice with some weight with participation.
§ The world is progressing to a point where geography dictates law school subject matter. This class addresses a wide range of subject areas.
v What is International Law?
Ø The study of law in different settings. For us, the law exists elsewhere. American approaches are “a” way of doing law, not “the” way of doing law. There is no such thing as morally better law when it comes to commercial practice.
Ø Common law of legal tradition is a minority when it comes to thinking of and structuring law.
Ø Common law legal traditions has a larger effect on the world than would be assumed based on the number of common law countries.
Ø Civil law legal systems – prevalent throughout continental Europe and Asia. Civil law emerged from France and Germany. These are consonant with democratic societies and private industry.
§ At civil law you need to find the law to apply and apply it (deduction).
§ In the civil law legal system more decisions are being made by judges, etc, than historically made.
Ø The biggest difference between common and civil law is that in common law judges make law, in civil law there is a more statutory approach.
Ø At common law you need to learn how to find precedent best for client and on the facts satisfy the judge that your position is correct. (Induction).
Ø Harmonization of common law and civil law approaches. Increasingly more law is made in common law societies through statutes, administrative, etc, than was historically true.
Ø Comparative law studies law as practiced among different jurisdictions. Comparative law studies foreign law, but it is not international law. International law focuses on law that is negotiated and applied consentually between states.
§ The major reason we have international law is to make life simpler for all of us.
§ Why? Because in the commercial law it is easier to learn and apply an international treaty on contract formation than it is to learn the law of every jurisdiction in the world.
v Public vs. Private Int’l law:
Ø When we talk about international law our major focus is on public international law. Law negotiated and developed by nations.
Ø Public Int’l law is a different field than private int’l law. Private Int’l law is equivalent to conflicts of law. Which law applies to a cross boarder conflict?
Ø If states have negotiated an int’l treaty the content of which governs the conflict at hand, then that source of law controls the conflict.
v Historical point
Ø Two theories that explain what content of int’l law should be: natural law and positivism.
§ Natural law says: there are certain values out there, moral principals, ways of doing things, that ought to be respected as law.
·Purpose of the legal scholar, or the ind. who crafts law is to discover what those principals are.
·IN a world of state sovereignty you can’t just run afoul of certain principals
§ Positivism: Law is made by people, it is man made/woman made. In the int’l context law is made by states based on what they agree upon. Law is about process. Law is not about morality. Law is about democracy, not faith or right or wrong.
·When states sign and ratify treaties, when the states behave in a way that becomes custom, that process of law making is what gives the output, ie the treaty, or custom, its legitimacy as law.
§ The stuff that we study in this course is what states have agreed to be bound by.
Ø Peremptory norms, or jus cogens, states cannot adopt treaties that violates these norms. (Ex. Cannot create a treaty that promotes genocid