The relationship between transnational commercial law treaties and national law – A framework as applied to the Cape Town Convention

Abstract

Treaties relate to and interact with national law in complex and important ways. That relationship directly impacts the extent to which transacting parties can reasonably rely on new and beneficial international norms. This article sets out a core conceptual framework, applicable to modern commercial law treaties, to assist in understanding that relationship. The article starts with threshold questions such as the extent to which a treaty has the prevailing force of law in a contracting state, then turns to the borderline between the scope of treaties and national law, including internal-treaty terms that contemplate application of national law, the question of which national law applies and when, and, finally, application of a treaty by virtue of the national law of non-contracting states. The article then applies this framework to the specific case of the Cape Town Convention and its Aircraft Protocol.