International Law

International law should more appropriately be named transnational law. Transnational law is defined by Philip Jessup as “all law which regulates actions or events that transcend national frontiers.” Transnational law encompasses public international law, private international law, and foreign and comparative law. It includes not only norms that are “international” by their nature, such as treaties or customs, but also domestic rules and principles governing transnational issues, such as Chinese law dealing with foreign litigants or with Spanish business activities abroad. This entry is organized into the three definitional areas: public international law; private international law, including international dispute resolution; and transnational transactions.

Public International Law

Public international law has usually been defined as the law of relationships between “states” (nations or countries). A more expansive definition now in use comes from U.S. law experts: the rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se (among themselves) as well as with some of their relations with persons, whether natural or juridical. The sources of public international law include (1) treaties, conventions, protocols, charters of international member-state organizations (e.g., the United Nations), and executive agreements; (2) customary international law; and (3) principles common to major legal systems. Note that no international laws that apply to all nations and citizens of the world are enacted by a supernational body, such as the United Nations. When an issue of international law arises, it may be raised in the courts of a particular nation or in an international forum created by the consent of some or all nations (e.g., the World Trade Organization).

[Page 919]A treaty is an agreement between countries, which can be bilateral (two nations), trilateral (three nations), or multilateral (more than three). There are thousand of treaties in effect globally at this time, covering almost every imaginable aspect of global relations from the law of the sea to human rights to war to commerce. International organizations may also be included in treaties. A convention is also an agreement or compact between nations, often negotiated though the United Nations on a regional or global basis. Protocols are agreements that typically address matters less important than treaty language, but frequently relate to treaty matters. Executive agreements are entered by the chief executive officer of a nation.

In the United States, treaties are recognized in the Constitution, binding on federal and state governments. Some treaties are self-executing, that is, once adopted, these treaties are binding. Executory treaties, on the other hand, need a domestic law enacted by the legislature or an act of the president to be effective. In the United States, executive agreements are as binding as treaties. Some of the agreements can be entered by the president alone, and some are based on congressional authority or a treaty, allowing the president to execute the agreement.

Many treaties affect the conduct of global business and foreign investment. There are numerous intellectual property rights treaties, often bilateral, and domestic laws in various countries which implement the treaties. A summary of the previously informal customary international law that governs all treaties is itself found in a treaty signed by 97 countries: the 1980 Vienna Convention on the Law of Treaties.

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