Transnational Public Law Litigation

Like domestic law, transnational public law seeks to vindicate public rights and values through judicial remedies. What makes transnational public law unique is that it melds two conventional modes of litigation that have traditionally been considered unique: domestic and international litigation. Private individuals, government officials, and nations sue one another directly in a variety of judicial fora, most prominently domestic courts, and invoke claims of rights based on a body of "transnational law" that blends domestic and international law. This article reviews the historical evolution of transnational public law litigation in American courts and discusses modern transnational public law litigation, including "international tort suits". The author argues in favour of a model which he believes to be morally superior to the "traditional" alternative, a model which would openly confront concerns of comity, separation of powers and judicial incompetence. [This article is in part a response to the article by Lea Brilmayer, also annotated in this section of the WHRR. While this article does not have a women's rights focus, it will be of interest to those exploring the use of international law in domestic courts.]