How can Congress play a role in formulating national security policy? This Article identifies one way that Congress already plays such a role: in its oversight of executive branch decisions regarding foreign investments in the United States. The executive’s role in this relationship is passive; it is best understood as a congressional notification service. This Article considers the implications of such a service, which could serve as a model for increased congressional involvement in other aspects of foreign affairs. It offers historical support for the descriptive claim that Congress plays a central role in policing foreign investments for national security concerns; the mildness of the executive role is shown both qualitatively and quantitatively through a content analysis of the “boilerplateness” of executive approvals of foreign acquisitions. The role Congress has played in national security and foreign direct investment policymaking has implications for theories of presidential administration and executive discretion in foreign affairs, and also for practicing lawyers interested in defining what exactly the scope of “national security” might be. The Article concludes with a review of these implications.
This Article explores parallels between the development of the international whaling and climate change regimes. It argues that the experiences of the International Whaling Commission (“IWC”) provide an instructive parable to the evolution and development of international environmental law regimes, where successful policies depend heavily on the interplay between science and policy – namely, global climate change. The Article aims to demonstrate the similarities between the historic path of whaling politics and the present path of international climate change politics, with particular reference to the political interpretation of science. This Article argues that international climate change policymaking is following too closely in the footsteps of the IWC and that, in order to avoid a similar collapse of the commons, the politics of climate change must change course.
In 2005, cross-border investment exceeded $1.3 trillion globally. Yet the international law governing the protection of foreign-owned property remains unsettled even in U.S. courts. Not only do American courts often refuse to reach the merits of expropriation claims, but they also frequently ignore relevant authority and rely upon the outdated and muddled Restatement (Third) for guidance. This article, which focuses on breach and forced renegotiation of contract claims, is the first of five planned articles that examine different theories of expropriation under international law. Together, these five articles try to construct a new and comprehensive analytical framework for adjudicating expropriation claims.
The treaty lives a double life. By day, it is a creature of international law, which sets forth extensive substantive and procedural rules by which the treaty must operate. When these rules prove susceptible to dispute – as is the case with treaty reservations, for example – international lawyers vigorously debate both how to clarify the rules and who has the authority to do so. By night, however, the treaty leads a more domestic life. In its domestic incarnation, the treaty is a creature of national law, deriving its force from the constitutional order of the nation state that concluded it. Within the United States, therefore, the Constitution governs. Just as we look to international law to discern treaty rules on the international plane, so too must we look to the Constitution for substantive or procedural rules by which the treaty functions within the U.S. legal system.
On February 19, 2003, a court in Hamburg, Germany convicted Moroccan national Mounir Motassadeq of over 3000 counts of accessory to murder in connection with the attacks of September 11, 2001. Motassadeq stood accused of being a member of the Hamburg terrorist cell that plotted and executed the hijacking of U.S. aircraft and subsequent attacks on the World Trade Center and Pentagon. He was convicted in a Hamburg higher regional court and sentenced to the maximum term of fifteen years in prison. Motassadeq’s was the first conviction related to the September 11 attacks in any jurisdiction.
International law is back. Once derided as pretentious and obscure, the field has blossomed over the last decade into a cutting-edge academic discipline. Yet the explosion of international law is of far more than academic interest. Major national and international policymakers are busily creating and using international institutions in an attempt to remake the world: the international criminal court, a World Trade Organization appellate court with real teeth, war crimes tribunals, weapons inspectors under international legal mandates, and the list goes on. Advocates in violent conflicts appeal to “international legality” as a way of gaining strength. In the wake of September 11th, several observers have suggested that these kinds of institutions could play a critical role in the war on terrorism and represent a better way than military means to forestall chaos and avoid a clash of civilizations.
When the Internet allows Mexican consumers to buy infringing U.S. sneakers made in Korea, which nation’s trademark laws should apply?
In response to the September 11, 2001 terrorist attacks, the chorus of those arguing that international law cannot serve as an effective tool in the fight against terrorism has grown. In fact, one might say that September 11 has swelled the ranks of international relations realists, who view international law primarily as a cover for strategic interests and thereby as lacking any independent bite. According to this view, for the United States to comply with the letter of international law would be to don a straight-jacket that would hamper efforts to protect national and international security. Instead, because of the serious nature of the threat, ordinary rules should be bent, if acknowledged at all. This type of thinking has even spilled over into domestic law. Anyone who harps too much on the need for law at best is naive and at worst aids and abets terrorists.
This resurgent realism with respect to international law has taken several forms. Some have argued that the United States need not pay overly precise attention to international law in its military response to the attacks. Others have suggested that the detention of captured terrorism suspects is not, or should not be, governed by international law. And still others have suggested that the United States need not comply with the principles established under international law in prosecuting individual terrorists.