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Transnational Law Outline

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Making treaties: Vienna Convention Articles 2 - defines a treaty as "an international agreement between states, in writing, that's governed by international law" 3 - other ways to create international legal obligations (such as representatives of the government) 6 - every state can enter into a treaty 7 - who can rep a state and approve of treaties ("appropriate full powers" or who the state intends to have such power; typically heads of state or ministers of foreign affairs have these powers) 8 - a person without legal authority signing = not binding, unless subsequently adopted by state 26 - good faith; states must carry out obligations in good faith Interpreting treaties: UN Charter says that it wins out if there's a conflict between it and text of another treaty 31 - Look at text, object/purpose, context (other agreements before or after, subsequent practice of countries, etc.) 32 - if there's ambiguity or absurdity after 31 analysis, THEN look at preparatory work (drafting history) State obligations to prevent genocide (Bosnia-Hercegovina case) - ICJ looked at language/purpose (including "undertake" indicating affirmative action, and purpose as humanitarian) and affirming that genocide is an international crime, showing treaty (Convention on the Prevention and Punishment of the Crime of Genocide) wasn't just aspirational Despite 32 only being for absurdity, still looked at drafting history Court said it'd be absurd if signatories not required to prevent genocide Jus cogens - peremptory norm; that which is accepted and recognized by the int'l community, from which no derogation is permitted. Treaty voided if conflicts. Evolves over time. Breach/compliance w/ int'l law: Henken - almost all nations observe almost all principles of int'l law almost all the time; target not to go after Hitler/Mussolini, nor the goody-goodies, but those in between Koh - nations obey because transnational legal process links state interests with legal norms, enmeshing domestic discussions with international law VCLT 54 - termination/withdrawal process; can get out by following release provisions, or by getting consent of all parties 56 - if no provision on withdrawal, no right to get out unless A) parties intended to admit the possibility of withdrawal or B) the right is implied by the nature of the treaty. Need to give 12 months notice of withdrawal. 60 - party that is victim of material breach in bilateral treaty can terminate (as Hungary tried in the Dam Project case); material breach = repudiation of treaty or violation of provision essential to accomplishment of object and purpose

61 - Impossibility as way of terminating treaty; but "clean hands" requirement 62 - Fundamental Change of Circumstances as way of terminating (court in Hungary case said breakup of USSR wasn't fundamental change in relation to object/purpose of treaty) 53 - treaty void if it conflicts with peremptory norm (jus cogens) 64 - if new peremptory norm comes into existence, previous treaties that conflict are voided 26 - requires good faith in carrying out treaties Trilemma: universal participation, uniformity of obligations, and substantive obligations - pick 2!
Reservations: VCLT Articles 19, 20, 21 19 - a state may, when signing/ratifying/approving, form a reservation unless prohibited by treaty, treaty specifies only certain reservations OK, or reservation incompatible with object/purpose 20 - Acceptance of and objection to reservations: expressly authorized reservations don't require acceptance; if limited number of negotiating states and object/purpose suggests treaty needs entire acceptance, then reservation needs consent of all parties. Silence for 12 months on another party's reservation means you accept their reservation, unless the date on which the states express consent to be bound by the treaty comes first. 21 - hashing out consequences post reservation. Reservation modifies relationship between reserving and accepting parties. (So accepting party also not bound with relation to reserving party). If a state accepts the reserving party as a party, even if they objected to the reservation, the reservation counts. Is there a binding int'l obligation? Step 1: Treaty governed by VCLT? Step 2: If not, still binding? (Authority and intent of those involved, are terms clear and specific?) Step 3: Is treaty consistent with peremptory norms? Step 4: Does specific provision apply to state in question?
(Was there a reservation?) Customary International Law: State practice, opinio juris, and Paquete Habana case Paquete Habana was SC decision; gave immunity to fishing boats by looking at historical state practice UN Resolutions aren't binding, but can shape customary int'l law SEDCO/TOPCO cases: state-state lump sum settlements and state-investor negotiated settlements not good sources of int'l law. Bilateral investment treaties maybe a little better, but still affected by power/negotiating dynamics. UNGA Resolutions are better, but you still have to

sift (example: UN Res. 1803 says "appropriate" compensation, w/ int'l law relevant, and had a compelling voting record, but 3171 was more recent and said int'l law not relevant) Hull doctrine - in the event of an expropriation, "prompt, adequate, and effective compensation is required" - said this idea was reflected in national constitutions Persistent objector rule: newer states may protest against established law. Also, states can persistently object to customary int'l law as it's forming. Soft Law: Easier for non-state actors to participate Can sometimes create/contribute to actual hard law Realist vs. institutionalist perspectives: both see states as unitary actors, and as rational, but realists see them acting on basis of short-term interests, while institutionalists weigh long-term (like reputation) more heavily in analysis of how states act. Institutionalists would tend to have more faith in a state's compliance with international obligations. Montevideo Convention:

1. Defined territory

2. Permanent population

3. Functioning government

4. Ability to enter into relations with foreign states Legal consequences of states: plenary jurisdiction and control over territory and population, full treaty-making capacity, immunity for state and state officials in other states, inherent right of self-defense in response to the use of force by other states, and access to ICJ Constitutive theory of statehood: it's all about recognition Declarative theory: just the facts (if you meet the factors, you're a state) International organizations: There is a "value-added" effect to having an organization to supplement a treaty - can modify obligations, there is centralized enforcement, the forum can draw attention, you can collect info, etc. South Africa case study - UN Articles 5 and 6 talk about suspension and expulsion, 2(7) bans interference in domestic affairs, 24(1) says Sec. Council is responsible for peace and security, 2(4) says states must refrain from threat/use of force against sovereignty of states, 56 says states will cooperate to effect values like human rights Transnational Corporations: ILO - founded to protect workers and prevent labor unrest. Voting unusual in that states got 2 gov't reps, 1 employer rep, 1 worker rep Ultimately rather ineffective - vague articles that leave obligations up to members to define, low ratification numbers (63 that don't include US) Various others like OECD, UN Draft Code, etc. - all dead ends or just guidelines

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