150.004 Transnational Law
Prof. Shigenori Matsui
Spring Term 2009
Faculty of Law
University of British Columbia
150.004 Transnational Law
Prof. Shigenori Matsui
Phone 604-822-5592
e-mail matsui@law.ubc.ca
Course Syllabus
SCOPE AND OBJECTIVES OF THE COURSE
This course provides an introduction to the basic principles of public international law and to the animating ideas behind private international law and comparative law . Transnational Law is intended to introduce you to the legal world beyond the confines of the Canadian legal system — beyond our constitution, our statutes, and our common law. Canadian law and the laws of other nations are not hermetically sealed units. In many ways, and increasingly, they are open systems. They are influenced by and connected to each other in ways that are easy to take for granted, but deserve careful study in their own right. The purpose of this course is to give you a start on that study. Upper year courses allow you to pursue it in more depth.
COURSE EVALUATION
The mark in this course will be based on two written assignments. The first assignment will be a short case analysis, which will be distributed on February 5, 2009. This small assignment will account for 20% of your total marks. The assignment should be submitted by February 24, 2009, and the marks will be made available on or before March 10, 2009. The final assignment will be distributed on March 12, 2009, and must be submitted by April 24, 2009. Further details as to length, etc., will be provided when the assignments are distributed.
Small assignment: 20%
Distribution: Thursday, February 5, 2009
Submission: Tuesday, February 24, 2009
Final assignment: 80%
Distribution: Thursday, March 12, 2009
Submission: Friday, April 24, 2009
CLASS ATTENDANCE AND PARTICIPATION
Regular class attendance is expected of students. The course will be taught through a combination of lectures and discussions. It is very important for you to read the assigned reading materials beforehand, and your contribution through class participation will be highly encouraged.
Required materials
Course Package for Transnational Law, available from the Distribution Centre
Other references
Note: There is no single textbook covering the material in this course, because it straddles public international law, private international law, and comparative law. There are plenty of books dealing with each of those subjects separately, although even the student texts are intended for more advanced treatments of the respective subjects than this course aims to offer. Should you want to get a bit more context for the subjects we're discussion, or go deeper into any of them, the following books are suggested as good places to start. Most of them are all on reserve in the Law Library with the call numbers as noted below.
Public international Law
Ian Brownlie, Principles of Public International Law , 6th ed. ( Oxford : Oxford University Press, 2003) [RSV KZ3225 .B76 A37 2003]
Authoritative and full discussion, with a lot of nuances for the advanced reader. Excerpts are used in the course package.
John H. Currie, Public International Law ( Toronto : Irwin Law, 2001) [RSV KZ3410 .C87 2001]
The only Canadian text. More compact treatment than Brownlie or Shaw; good student text. Excerpts are used in the course package.
John H. Currie, Craig Forcese & Valerie Oosterveld, International Law: Doctrine, Practice, and Theory ( Toronto : Irwin Law, 2007) [RSV KZ3410 .C86 2007]
A collection of original sources and secondary materials on international law and international relations.
Malcolm D. Evans, ed., International Law, 2 nd ed. ( Oxford : Oxford University Press, 2006)[ KZ1242 .I573 2006]
If you are going to study International Law in your upper years, you should consider buying this: it is up to date and includes chapters by some very distinguished contributors
Hugh M. Kindred, Philip M. Saunders & Jutta Brunnée, International Law, Chiefly as Interpreted and Applied in Canada , 7th ed. ( Toronto : Emond Montgomery, 2006) [RSV KZ358 .A2 I57 2006]
Cases and materials, with a fair amount of editorial commentary. Excerpts are used in the course package.
Peter Malanczuk, ed., Akehurst's Modern Introduction to International Law , 7th ed. (London: Routledge, 1997) [RSV JX1308 .A43 1997]
A moderately basic treatment.
Mark W. Janis, An Introduction to International Law ( New York : Aspen , 2003) [RSV KZ3140 .J36 A35 2003]
American text, pretty black-letter treatment.
Malcolm N. Shaw, International Law , 5th ed. ( Cambridge , U.K. : Cambridge University Press, 2003) [RSV KZ3275 .S53 2003]
Full, clear presentation.
I.A. Shearer, ed., Starke's International Law , 11th ed. (London: Butterworths, 1994) [RSV JX3295 .S8 I5 1994]
The fullest of the moderately basic texts, clear and detailed.
Rebecca M. Wallace & Anne Holliday, International Law in a Nutshell ( London : Sweet & Maxwell, 2006) [RSV KZ3410 W35 2006]
Very basic treatment, for a quick overview.
Private international law
J.-G. Castel, Introduction to Conflict of Laws , 4th ed. ( Toronto : Butterworths, 2002) [RSV KC2020 .C386 2002]
The only reasonably short manual to Canadian private international law.
N. Rafferty, gen. ed., Private International Law in Common Law Canada , 2nd ed. ( Toronto : Emond Montgomery, 2003 [RSV K7039 .P75 2003 (LC)]
Designed for a full course in the subject, so more than you want to know on most topics. Excerpts are used in the course package.
Janet Walker, Canadian Conflict of Laws , 6th ed., looseleaf ( Toronto : Butterworths, 2005-) [RSV KE470 .A6 C38 2005 (LC)]
Much more than you need for this course, but it is the only comprehensive Canadian treatment of the subject.
ComParative law
Peter de Cruz, Comparative Law in a Changing World, 3d ed. (London, Cavendish Publishing Ltd. 2007)[ K559 .D4 2007]
One of the available textbooks on comparative law. Excerpts are used in the course package.
Mary Ann Glendon, Paolo Wright-Carozza, & Colin Picker, Comparative Legal Traditions: Text, Materials and Cases, 3d ed. ( St. Paul : West Publishing Co. 2007)[ K583 .G55 2007]
Comparative law textbook focusing on French, German, English and Socialist Law.
K. Zweigert & H. Koetz, Introduction to Comparative Law , volume 1 The Framework, 2 nd revised ed. (Oxford: Clarendon Press 1987)[K583 Z813 1987]
The classic comparative law textbook focusing on methodological foundation of comparative law. Excerpts are used in the course package
some online sources
On its website the UBC Law Library has an extensive listing of links to sources for public international law. http://www.library.ubc.ca/law/intres.html
The American Society of International Law (ASIL) has an excellent ASIL Guide to Electronic Resources for International Law , with lots of links for both public and private international law. http://www.asil.org/resource/home.htm
The Canadian Council on International Law (CCIL) has a website with some links to public international legal resources. http://www.ccil-ccdi.ca/index.php
The Bora Laskin Law Library at the University of Toronto has three guides to legal research on its website dealing with treaties, international protection of human rights, and international women's human rights. http://www.law-lib.utoronto.ca/resguide/index.htm
The Harvard Law School Library has an annotated guide to web sites around the world, dealing with foreign and international law. http://www.law.harvard.edu/library/services/research/guides/international/web_resources
The University of Chicago also has a site on legal research on international law issues using the Internet. http://www2.lib.uchicago.edu/~llou/forintlaw.html
A private website in the UK has links to resources on the conflict of laws (private international law), focusing on EU law and its impact on the subject: http://www.conflictoflaws.co.uk
Hart Publishing, in association with the Journal of Private International Law, puts up articles, mostly English and European but some from elsewhere, of current interest on http://www.conflictoflaws.net
As part of Willamette Law Online , Willamette Law School publishes an annual survey of US conflicts cases: http://www.willamette.edu/law/wlo/conflicts/index.htm
Prof. William Tetley, of McGill, maintains an extensive website outlining his courses and publications, mostly on maritime law. There is a glossary of conflict of laws terms: http://www.mcgill.ca/maritimelaw/glossaries/conflictlaws
Many of the Uniform Law Conference of Canada's model uniform Acts deal with conflicts issues. The Conference website, which has lists of the statutes and the provinces that have implemented them, along with background material, is at http://www.ulcc.ca .
The Hague Conference on Private International Law is the primary forum in which international treaties on conflicts issues are drafted. Information on the Hague Conventions and their implementation is at http://www.hcch.net/index_en.php .
Reading List
Page references are to the course package.
The weekly schedule set out in the table of contents of the course package is approximate and may be changed during progress.
Week 1 January 13 & 15
What is transnational law and why is it so important to learn transnational law?
What is public international law? Is international law really a law?
What is the jurisdiction of the state?
Introduction to Public International Law 9-21
These materials are meant to give you an idea of what public international law is, where it comes from, and how it relates to the themes of this course. We'll spend some extra time on the various relationships outlined in the section headed “Transnational Law”.
John Currie, Nature and Origins of Public International Law 22-30
This extract focuses on how international law came to be. In addition to the tried-and-true question of whether international law is “really” law (also discussed in the Introduction materials), consider the extent to which the formation of international law seems to be a bottom-up rather than a top-down process, and how that compares with the evolution of national law.
R. v. Hape (S.C.C. 2007) 31-51
The actual issue, whether the Charter applies to the conduct of Canadian government officials outside Canada , is not the point of reading this case; it's the extensive discussion of the relationship between Canadian and international law, including the limits that each sets for the application of the other.
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Week 2 January 20 & 22
What are the sources of international law?
What is the law of treaties?
Statute of the International Court of Justice, art. 38
Art .38 is not in the extract from the ICJ Statute in the Appendix of the materials; see online, International Court of Justice: http://www.icj-cij.org/documents/index.php?p1=4&p2=2&p3=0 .
Sources of international law 52-64
Statutes and common law are rough analogues in domestic law to treaties and custom in international law. It's important to understand the differences as well as the similarities between the domestic and the international counterparts.
Case concerning Gabcíkovo-Nagymaros Project ( Hungary v. Slovakia ), Judgment of September 25 1997 (Summary) 84A
This case gives you a good example to learn about the law of treaties.
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Week 3 January 27 & 29
What is the customary international law?
What is jus cogens?
How we should find sources of international law: The case of Iraq War
Hugh M. Kindred & Phillip M. Saunders, eds., Creation and Ascertainment
of International Law 65-84
In the North Sea Continental Shelf Cases (ICJ 1969) at 151, note how the court approaches the question of international consensus on general principles and on specific delimitation rules. (Incidentally, on the idea that rights must be worked out by the parties according to a set of fundamental principles, cf. the SCC's treatment of Aboriginal rights to land.) The question of bilateral or regional custom ( Right of Passage over Indian Territory Case (ICJ 1960) at 165; Asylum Case (Colombia v. Peru) (ICJ 1950) at 166) can usefully be compared with bilateral or multilateral treaty-making.
Hugh M. Kindred & Phillip M. Saunders, eds., National Application of
International Law 85-94
On Suresh v. Canada (SCC 2002), if jus cogens is a “norm from which no derogation is permitted” (at 245), in what sense is derogation permitted from other international law norms? Bouzari v. Iran (Ont CA 2004), like Suresh , draws a distinction between the actual jus cogens (thou shalt not torture) and actions of Canada that arguably make it in some way complicit in another state's violation of jus cogens (thou shalt not deport to a state that tortures, thou shalt give a victim a civil remedy against a state that tortures). Do you think the distinction is convincing in these cases? (The same point as in Bouzari was at issue in Jones v. Ministry of Interior of Saudi Arabia (2006), [2007] 1 AC 270, [2006] UKHL 26.)
UN Security Council Resolution 1441 (2002) 95-99
Gerry Simpson, “The War in Iraq and International Law” 101-122
Mr. Simpson's analysis, of course, is only one man's view on a much-contested question, or set of questions. Note part III of the paper, which touches on some profound questions about the future development of international law, such as whether the action or inaction of the Security Council should remain—assuming that it now is—the touchstone of the legality of one UN member state's use of armed force against another.
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Week 4 February 3 & 5 Subjects of International Law
Who are the subjects of International Law?
What are the requirements for the state?
What happens if the new state is created?
Ian Brownlie, Incidence and continuity of statehood 123-137
The trickiest issue in this extract is the notion of independence as a hallmark of statehood. Does Prof. Brownlie think that a state, to be sovereign, must be independent and, if so, in what sense? More generally, consider how the indicia of statehood relate to the purpose for which the concept is used, i.e., to distinguish entities that have rights and obligations under international law from those that do not. Also, have a look in the appendix at art. 1-2 (purposes) and 3-6 (membership) of the UN Charter, to see the role that sovereignty plays there.
Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory (I.C.J. 2004) 138-163
This case is an excellent example of the centrality of the concept of statehood—and lack of statehood— in international law. It is also a good exercise in coming to grips with the sources of international law. Try to identify each of the distinct legal principles on which the court rests its decision, and the types of sources to which the court refers in applying those principles. Check out, too, the basis for the ICJ's jurisdiction in the Statute of the ICJ, and consider what legal effect its decision had.
Small assignment handed Out (February 5)
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Week 5 February 10 & 12 International Law and National Law
Is international law applicable to domestic dispute?
How international law does affect the interpretation of national law by the courts?
What would happen if the national law violates the international law?
John Currie, Canadian Approaches to the Reception of International Law 164-172
One way to approach this topic is to try to work out the different situations in which Canadian domestic law will not be in step with Canada 's international legal obligations.
Baker v. Canada (S.C.C. 1999) 173-187
Willy-nilly, in reading this case you're going to learn some administrative law (the principles on which courts exercise control over the decisions of public officials or tribunals in carrying out their statutory mandate). The main point of interest from our point of view is the influence of international law on Canadian law. The two issues are actually linked, because implicated in both is the role of the judicial branch of government in relation to the executive and legislative branches.
Organizational Chart of the UN system 100
We'll spend some time on understanding the UN system because it plays such a central role in the international legal order. It's important to see how the functions and powers of the General Assembly and the Security Council are defined by the UN Charter (appendix at 468). The ICJ, which is an organ of the UN under arts. 7 and 92, has its own statute; see how its jurisdiction is defined by arts. 34-36 of the statute (appendix at 464). A fundamental question is the extent to which each organ of the UN plays a law-making role.
Finding international law documents 188-192
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Mid-term break (February 16 to 20)
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Small assignment due (February 24)
Week 6 February 24 & 26 Private international law
What are the issues in private international law?
What is the jurisdiction of the courts in private international law?
Introduction to private international law 193-212
At the beginning of of the course, we saw that public and private international law are not watertight compartments, but two systems that interact with each other and whose combined effect needs to be understood. Here, we focus more closely on what is distinctly the province of private international law, and the sources from which it derives.
Morguard Investments Ltd. v. De Savoye (S.C.C. 1990) 213-230
The importance of this case cannot be overstated. Unfortunately, for first year students it's a bit of a pill to swallow. It makes sweeping statements about both private international law and Canadian constitutional law, the novelty and the implications of which aren't apparent if you haven't yet spent much time on those fields. And the full implications of the case are still working themselves out. I suggest that you look at the case from the point of view of three questions: (1) What does it actually decide about the rules for recognizing extra-provincial judgments? (2) In the course of deciding that, what does the court tell us about private international law more generally? (3) And what does the court say about the relationship between private international law and constitutional law? The three strands are wound together in the court's discussion, so you have to tease them apart.
Lloyd's Underwriters v. Teck Cominco Ltd. (B.C.C.A. 2007) 231-259
This lengthy but interesting decision is the first appellate judgment on the Court Jurisdiction and Proceedings Transfer Act (CJPTA, materials at 492), which gave the BC jurisdiction rules statutory form. Note that in other provinces, except Saskatchewan (in which the CJPTA has also been adopted), the jurisdiction rules are still contained implicitly in the rules for service in the rules of court. A defendant who must be served with process outside the province (service ex juris ) is subject to the court's jurisdiction if service is authorized, and whether service is authorized is laid down in the rules of court. Under the statutory régime, jurisdiction (or territorial competence) depends on whether the statutory requirements are met. If they are, the right to serve the defendant (whether in or outside the province) follows according to the rules.
When reading the Lloyd's case, remember that the issue was not whether the BC court had jurisdiction simpliciter (i.e. had the right to hear the case); that was established by the fact that the defendant TCML was ordinarily resident in BC (CJPTA s. 3((d)). The question was whether the court in its discretion should decline to hear the case, given that the court in Washington was already hearing TCML's action against Lloyd's. (TCML was granted leave to appeal the decision in the materials to the SCC.)
Amchem Products Inc. v. British Columbia (Workers' Compensation Board),
[1993] S.C.R. 897 259A
This is a case concerning forum non conveniens. It will give you a good example to learn about the relationship between jurisdictional rules and forum non conveniens rules.
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Week 7 March 3 & 5 Choice of Law
What is the choice of law? Why is it so important?
What kind of methodology should be used to decide the choice of law?
N. Rafferty, ed., Choice of Law Methodology 260-271
This is admittedly heavy going for an introductory first year course, but the choice of law process is intriguing as well as important, and you may as well get a reasonably full picture of how it works.
Tolofson v. Jensen (S.C.C. 1994) 272-293
This case is the SCC's only foray into choice of law in recent years. Notice the reasons the court gives for insisting on a cut-and-dried choice of law rule with no exceptions (at least in interprovincial cases). In fact choice of law isn't nearly so rigidly “territorial” in approach when it comes to other areas like contracts or personal matters like marriage or wills, so in that sense Tolofson is untypical of choice of law as a whole. The case is important well beyond the tort sphere, because the court's re-drawing of the line between substantive and procedural rules had a huge impact.
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Small assignment returned to students (March 10)
Week 8 March 10 & 12 Enforcement of Foreign Judgment
How the courts should enforce the foreign judgment?
What are the limits of enforcement of foreign judgment?
Morguard Investments Ltd. v. De Savoye (S.C.C. 1990) 213-230
Introduction to public policy 294
Kuwait Airways Corp. v. Iraqi Airways Co. (H.L. 2002) 295-301
Note that this deals with only one type of public policy consideration, derived from public international law. Most public policy cases deal with more nationally oriented objections based on fundamental notions of morals or justice that are seen as intrinsic to the domestic legal system.
Major assignment handed out (March 12)
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Week 9 March 17 & 19 Case Studies
What kind of rules should be applied in tort cases?
What kind of rules should be applied to child abduction cases?
Tolofson v. Jensen (S.C.C. 1994) 272-293
Thomson v. Thomson (S.C.C. 1994) 302-346
This brings together a number of the themes of this course, because it shows the operation of a treaty that is aimed at harmonizing the private international law of the states that are party to it, in order to achieve a real advance in the protection of children by setting firmer rules on where custody battles must be fought. Especially useful is the way the court approaches the interpretation of the statute. The Hague Convention has made an enormous difference to the legal treatment of child abduction, in Canada and in many other countries.
Family Relations Act (B.C.), Part 4 (International Child Abduction) 347
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Week 10 March 24 & 26 Comparative Law
What is comparative law?
What kind of methodology should be used for comparative law?
What is the difference between common law and civil law?
Konrad Zweigert & Hein Kötz, The Concept of Comparative Law,
The Functions and Aims of Comparative Law, and
The Method of Comparative Law 348-371
These readings are to show how comparative law fits in with public and private international law, not as positive law, but as a legal discipline that helps to understand how different national systems approach similar problems, and what we—and national legal systems—can learn from the differences between the systems.
Peter de Cruz, The Civil Law System 372-399
The civil law is the other great western legal tradition; this chapter gives a bird's-eye view of what makes it different from the common law, and how the differences came to be.
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Week 11 March 31 & April 2 Some Examples in Comparative Law
What is the abortion right in Germany , the United States , and Canada ?
What is the law of defamation in U.K. , Canada , and the United States ?
Donald P. Kommers, “The Constitutional Law of Abortion in Germany :
Should Americans Pay Attention?” 400-416
Abortion is a subject that touches the deepest feelings of moral, and therefore legal, right and wrong. This and the following article show how comparative law can help to understand the issues better than we can do if we look only within our own national system of law.
Mary Ann Glendon, “ A beau mentir qui vient de loin : The 1988
Canadian Abortion Decision in Comparative Perspective” 417-439
Hill v. Church of Scientology of Toronto (S.C.C. 1995) 440-449
Defamation of public figures is a matter on which Canadian and US law have taken radically different positions, despite very similar legal traditions. This decision is the SCC's statement of why Canadian law is, and should be, different.
Burke v. NYP Holdings Inc. (B.C.S.C. 2005) 450-463
By way of gathering some threads, this case shows how the different views on defamation play out in a private international law decision as to where a defamation case should be brought.
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Week 12 April 7 Conclusion
Wrap-up sessions
Major assignment due (April 24)