Transnational Law. Approaches and (Commercial) Origins

Radu Bogdan BOBEI
Transnational law, hereinafter ‘TL’, be it a real dream or a dreamed reality, is to be outlined in the light of some approaches and its origins. The paper addresses 3 (three) approaches of TL: the ideological approach (Section 1), the operative approach in its academic dimension (Section 2), respectively the operative approach in its non-academic and practical approach (Section 3). Furthermore, the paper addresses the private (and) commercial origins of TL (Section 4). In the first quarter of the 21st century, TL deployed its evolutionary nature. In order to deeply contemplate in future papers the stages of such TL’s evolutionary nature, the paper is suggesting for the time being a ‘Back to the origins of TL itself!’ demarche. It might be a chance to properly contemplate also in future papers the progressive nature of the transnational normativity itself, be it hard or soft. Such latter nature is permanently nurtured by the relationships evolved within the so-called ‘world society’. At least in the last 50-60 years, the world society detached the nations from the States themselves and from the Westphalian logic familiar with the nation-States only. The final remarks allow seeing, even briefly, that the newest TL, if any, amounts, at least in its commercial dimension, to TL in its oldest version of commercial dimension itself (Section 5). The so-called ‘circle, if any, of TL’ in its commercial dimension is fully and perfectly closed; the newest and the oldest lex mercatoria are sharing the same core idea – that is the worldwide merchant’s common sense in doing business.

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The Application of International Law to Cyber Operations: Some Brief Remarks on Sovereignty, Use of Force and Attribution

This paper reveals some concrete controversies related to the application of international law in cyberspace. The three main issues studied in this paper describe the manner in which the principle of state sovereignty interacts with cyberspace, potential problems related to the principle related to the prohibition of the use of force and the main hurdles that need to be surpassed for an act performed in cyberspace to be attributed to a state.

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Legal Implications of Outer Space Warfare – Part II

As demonstrated in the first part of the present article, the outer space is facing an increased militarization. Space-faring nations are competing in this novel environment to assert supremacy and, thus, secure advantages on Earth. As a result, the prospects of an incoming outer space conflict are higher with each technological advancement and launch. Not only governmental agencies, but also private actors are increasingly active in this spatial endeavour. According to the Outer Space Treaty, state parties should conduct their activities in outer space, including the moon and other celestial bodies, in accordance with international law, including the Charter of the United Nations. The beginning and conduct of warfare are strictly regulated by international legal norms and, thus, a potential conflict unfolding in outer space must also abide by these rules. The purpose of the present paper is to analyze the jus ad bellum and jus in bello norms and interpret them in light of the specificities posed by a potential outer space warfare. The article takes into consideration the distinct weapons, actors and effects of such a conflict and will attempt to adapt the existing rules to this novel state confrontation environment.

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Influence of Jurisdictional Matters over the Substance of Investment Agreements: The Case‑law of the European Court of Justice and the European Union Investment Policy

The study observes two elements derived in well-known cases of the European Court of Justice, where substantial elements of investment law were essentially influenced by the interpretation to be given to jurisdictional matters. One element is represented by the intra-EU Bilateral Investment Treaties. Following the Achmea ruling of the European Court of Justice, that decided that the arbitration clause in the Bilateral Investment Treaties are incompatible with the exclusive jurisdiction of the Luxemburg Court, the Member States signed, on 5 May 2020, an agreement on the termination of the intra-EU Bilateral Investment Treaties. The agreement shall enter into force successfully, for the Member States that will ratify. However, it is the interpretative value and the object and purpose of this agreement that may represent the most important aspects. The second element is represented by the conditions foreseen by the European Court of Justice in order to accept the dispute settlement mechanism provided by the Comprehensive Economic and Trade Agreement with Canada (CETA) as compatible with EU law. Although the Court examined the dispute settlement system, the conditions it has identified – valid also for future agreements – relate to the substance of the document, mainly to the clauses concerning fair and equitable treatment and indirect expropriation.

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The Legal and Practical Inefficiency of Systematically Introducing Human Rights Clauses in the European Union’s Agreements

This paper’s goal is to provide a pertinent critique of the legal and practical deficiencies of the human rights conditionality model systematically implemented by the European Union in its foreign policy. This practice has been subject to academic examination since its introduction in 1995, yet very few analysed the issue from a public international law or practical perspective. This paper uses a qualitative method of research based on an investigation of the historical evolution of the human rights clause between multiple agreements concluded by the EU with third States. Starting from this collected information, it is revealed that the clause has developed heterogeneously and has a variable legal value. This has been determined in two ways: first, by comparing clauses with the Abbot-Snidal theory of distinguishing between soft law and hard law and, second, by analysing these clauses in light of the material breach of treaties doctrine. As for the practical point of view, it is found that no methodology has yet developed in order to properly assess the effects of human rights conditionality. Thus, the findings imply that this practice has, with a few exceptions, become outdated as the EU already is in possession of better instruments of human rights promotion which do not hinder its treaty-negotiation ability. This is a unique conclusion which, unlike previous works, does not suggest a mere reform of the system, but its entire removal.

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