On the other hand, in private law the relationship is not umpired under the same rubric of accountability and transparency. To the extent that transnational law involves many other actors outside of the state, it must not be subjected to the same standards as those of public law. If we accept the above as true, then one could argue that transnational law is coming of age:. When we take a look at what is 'out there', we see a rich and complex set of relationships, overlapping competencies, and dialogues among states, state entities, international organisations, and non-governmental organisations.
Some of these spaces are occupied by institutions creating hard law such as the World Trade Organization that purport to bind member nations. Other spaces are sites where a number of national and sometimes supranational norms compete. Based on Aleinikoffs postulation, transnational law has its own distinct space outside of state laws and international law. In fact, a number of scholars agree with this. For example, Calliess 67 presents the argument that transnational commercial law "constitutes a third category of law beyond the traditional dichotomy of national and international law.
The global legal order is essentially an order of international networks and organizations, a set of transnational regimes connected and intertwined with each other. In this sense, the global legal order and the transnational regimes that sustain it are something different from both public and international law. It is possible to conceive this complex of transnational regimes as a legal system, or as a set of different and strictly connected legal systems.
This clearly supports the view that any transnational legal system is possibly autonomous from the state and international law, as it does not fit wholly into them. Transnational law could thus be perceived to occupy its own normative space although this space arises as a result of a gradual accumulation of decisions by both the state and the international order , creating scholarly enterprises like "transnational labour law", "transnational commercial law" and "transnational environmental law", to name a few.
Admittedly, issues of legitimacy will always attach to these forms transnational law, and issues related to how they can be enforced will persist. Why should we think about environmental issues in a transnational context? Why is transnationality important? There are a number of reasons. To start with, it is increasingly becoming limiting to think of the geography of law as national, regional or international in nature as there are now various non-state actors that exercise different regulatory roles which they do because they are not constrained by issues of sovereignty and state interest.
The Equator Principles, for example, arose through the need for the inclusion and recognition of the environmental, social, health and safety standards where private banks provide funding for socio-economic development. The growing communication networks that are largely a product of globalisation have also been exercising non-state actor influence and transnationality. There has been an increase in technological advancements over the last decade with various social media now to the fore, and with the term "social network" gaining popularity.
The environmental problems the world faces today are of such a nature that the national and international spaces might not be enough for regulatory purposes. Climate change, for instance, is an issue that affects the globe as a whole. It is the new frontier of environmental law. Related to this last point, the problematic nature of environmental regulation through international environmental law is worrisome.
To think of international environmental law entirely outside the state is questionable. This is because states are the primary instigators of international environmental law and they drive its development and effectiveness.
If international environmental law is considered to be relatively new and constantly changing, 93 as it is, then transnational environmental law is even more recent and can be described as a young and continuously "emergent system". In addition, a new journal titled Transnational Environmental Law was launched a few years ago.
Sands 97 suggests that transnational environmental law operates below "the level of visibility of classical public international law" and its rules relate to both the international and national legal order; to public inter-state relations and even to issues of private international law and procedure. It invites us to look at transnational environmental law as a flexible and reactive body of law that is easily susceptible to change.
Consequently, in the same way that transnational law is non-static and dynamic, transnational environmental law is reactive 99 and concerns the manner and extent to which environmental law responds to the global nature of present-day environmental problems. As noted in the introduction to this paper, I have attempted in earlier works to demonstrate that the right to a healthy environment is perhaps one clear example of how transnationalism in law is happening.
In the absence of the right to a healthy environment at the global level, non-state actors have long been advocating its constitutionalisation in national constitutions. Such constitutionalisation is happening fast through transnational juridical processes of transplantation, convergence of laws, integration and harmonisation; networking and judicial comparative borrowing.
Climate change is perhaps the biggest global environmental threat of our time. Global legal developments, however, do not seem to move fast enough to deal with the threat of climate change. The multilateral environmental agreement space which is dominated by states has produced the United Nations Framework Convention on Climate Change, the Kyoto Protocol and more recently, the Paris Agreement While instructive and representative of global concerns, there is an acceptance that these frameworks are not adequate to address climate change issues.
Thus, there is a clear trend away from purely intergovernmental policy making and towards a governance system that incorporates public and private actors at all levels into norm setting, policy making and norm implementation.
This clearly accords with the descriptions of transnational law noted earlier in this paper. There is a movement of initiatives beyond the state, without necessarily an erosion of the state. Such initiatives can be found in climate adaptation measures, climate funding, cities networks etc. This article has attempted to stitch together ideas gleaned from an array of scholarship pertaining to transnational law in order to make out a coherent case for its relevance as a scholarly enterprise.
The literature shows that it is now clear that because of global change, the idea of the state's complete dominance in law-making is fast diminishing and the notion of a nation, to borrow Venter's phrase, is "becoming frayed at the edges". The state has become open or cosmopolitan, as the 20 th and 21 st centuries have generated a wave of globalisation that has influenced virtually all forms of law and governance.
While this does not signify the beginning of the end of Westphalian sovereignty and the continued existence of the nation state, any modern map of the law that does not include such emerging orders is leaving out too much. In an environment where international agreement on many concerns usually drags on interminably and is beset by various challenges like the low standards produced in environmental treaties , the transnationality of regulation could be a welcome innovation.
This is particularly true when one considers that once an agreement is reached and codified, changing it might prove even more difficult than reaching the agreement in the first place. In fact, transnational law-making is a practical problem-solving and sense-making process which "illuminates how the by-products of professional problem solving gradually accumulate into non-binding legal rules.
Transnational law represents the totality of norms and rules operating on a global scale and represents the interaction between the national, regional and international systems. It represents a compromise between the conservative nation state law-making process and the rigid process of creating international law.
To be sure, transnational law has been fast developing over the last 60 years or so. Evidence of its remarkable growth includes the existence of many journals that are now based on transnational law, as well as academic qualifications dealing with transnational law. Rome Statute of the International Criminal Court Arb Int'l Arbitration International. Int'l Law The International Lawyer.
E-mail: brews. I thank the anonymous reviewers for their comments and suggestions in improving the paper. All errors remain my own. Also see Sutherland "Globalization and Corporate Law" , where it is noted that the concept is actually controversial, and the result is that it is impossible to give an uncontested definition of it.
For general criticism and arguments for and against globalisation, see Venter Global Features of Constitutional Law Berman "Introduction" xiv. Venter Global Features of Constitutional Law See further Shams Int'l Law He is considered to have argued fiercely against absolute sovereignty in that the interests of the international community as a whole were supposed to supersede those of individual states.
See Brouder "Philip Jessup" Thereafter Jessup became largely active as a United States diplomat and it is probably through his experiences abroad and his own involvement in international disputes that he developed his theory of transnational law.
Transnational commercial law is a derivative of the more general term transnational law and its sources could very well also be sources of transnational law. Perhaps this is because classically, international law concerns only the relations between states, their rights and obligations on the international stage. See Karton Tilburg L Rev Furthermore, the overview also entails work in fields such as sociology, anthropology, and geography, which have already explored TL as a rich phenomenon.
The transnational theme also played some role in the upcoming work on global governance and was taken up in IR in the mids in Risse-Kappen At this point, the role that TL played in these patterns was not paid attention to in the latter field, let alone the question of whether the switch from international to transnational would change the legal quality of such patterns.
In turn, an orientation toward a broader engagement that takes into account both the law and its politico-social environment has more recently become stronger in legal studies Scott , Zumbansen Jessup, Philip C.
Transnational Law. See Important Definitions. Nye, Joseph S. Edited by Joseph S. Nye and Robert O. International Organization Against this backdrop, the authors suggest a research program that studies how such transnational interaction patterns affect world politics.
Risse-Kappen, Thomas, ed. Bringing Transnational Relations Back In. The volume builds on the earlier transnational-relations approaches in IR and asks for the institutional-background conditions of transnational action. It contains several case studies on the domestic institutional context for transnational actors to implement their policy preferences.
Rosenau, James N. Early programmatic article in which Rosenau elaborates on the challenges that IR theory faces in a world of transnational ties and changing authority structures.
He holds that in addition to empirical challenges, transnationalization must also stimulate conceptual and methodological reorientation. Blackett A, Trebilcock A Conceptualizing transnational labour law.
Carse A, Njoya W Labour law as the law of the business enterprise. Hart, Oxford, pp — Google Scholar. Deva S, Bilchiltz D eds Human rights obligations of business: beyond the corporate responsibility to protect.
Diller J Pluralism and privatization in transnational labour regulations: experience of the International Labour Organization. Drouin R-C Freedom of association in international framework agreements. Halliday T, Shaffer G eds Transnational legal orders. Hyde A To what duties do global labour rights correlate?
Responsibilty for labour standards down the productive chain. ILO World employment social outlook: the changing nature of jobs. ILC, th Session. ILO b Report of the committee on decent work in global supply chains.
Provisional Record No. ILO c Resolution and conclusions concerning decent work in supply chains. ILO d Non-standard employment around the world: understanding challenges, shaping progress.
ILO e Assessment of labour provisions in trade and investment agreements.
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