A chorus of critics, led by the late Justice Scalia, have condemned the practice of federal courts’ refraining from hearing cases over which they have subject-matter jurisdiction because of international comity—respect for the governmental interests of other nations. They assail the practice as unprincipled abandonment of judicial duty and unnecessary given statutes and settled judicial doctrines that amply protect foreign governmental interests and guide the lower courts. But existing statutes and doctrines do not give adequate answers to the myriad cases in which such interests are implicated given the scope of present-day globalization and features of the U.S. legal system that attract foreign litigants. The problem is ubiquitous. For instance, four cases decided in the Supreme Court’s 2017 October Term raised international comity concerns and illustrate the Court’s difficulty grappling with these issues.
This Article cuts against prevailing academic commentary (endorsed, to some extent, by the newly-minted Restatement (Fourth) of the Foreign Relations Law of the United States) and presents the first sustained defense of the widespread practice of international comity abstention in the lower federal courts—a practice the Supreme Court has not yet passed on but will almost certainly decide soon. At the same time, we acknowledge that the critics are right to assert that the way lower courts currently implement international comity—through a multi-factored interest analysis—is too manipulable and invites judicial shirking. Consequently, we propose a new federal common law framework for international comity based in part on historical practice from the Founding to the early twentieth century when federal courts frequently dealt with cases implicating foreign governmental interests with scant congressional or executive guidance, primarily in the maritime context. That old law is newly relevant. What is called for is forthright recognition of a federal common law doctrine of international comity that enables courts to exercise principled discretion in dealing with asserted foreign governmental interests and clears up conceptual confusion between prescriptive and adjudicative manifestations of international comity.
Americans recently awoke to a startling revelation: “Our country is getting ripped off.” Indeed, the purportedly deleterious effects of international trade on the United States domestic economy have claimed top billing in President Donald Trump’s nascent “America First” agenda. As the White House publicly excoriates international free trade for the first time in recent memory, global trade deals and domestic tariffs are cast in stark relief. China and Mexico, along these lines, are cast as chief culprits in a system of international exchange allegedly designed to subjugate American workers to nefarious foreign interests. Overall, recent politics underscore the practical importance of, and interdependence between, competition and cooperation in international economic regulation.
In the arena of hard-nosed international competition, it’s all fun and games––until somebody starts a trade war. But beyond the scope of trade deals and tariffs, sovereign states’ domestic antitrust laws are also critical regulatory levers. Americans at the Antitrust Division of the Department of Justice and the Federal Trade Commission have the power to influence incentives in markets across the globe. For example, although domestic by nature, U.S. antitrust laws do not exclusively apply to conduct in domestic markets—the Sherman Act may extend far beyond American shores to activities conceived and executed abroad.
For nearly six decades, States have entered into approximately 3,000 bilateral investment promotion and protection treaties (“BITs”) and some multilateral treaties (“MITs”), which possess the same dual purposes as the North American Free Trade Agreement (“NAFTA”) and the Energy Charter Treaty (“ECT”). They have been signed, ratified, and entered into force for mutual benefit: investment in the States party to the BIT or MIT is mutually encouraged, in good part by each State party guaranteeing the other State party’s investors an acceptable level of legal protection, usually consisting of “fair and equitable treatment” (“FET”), “full protection and security” (“FPS”), specific rules governing compensation for expropriation, and, via a “most-favored-nation clause” (“MFN”), the same overall level of legal protection as is accorded to nationals of other States with whom the respondent State party to the BIT or MIT has similar treaties in force.
Key to the nationals of each State party who invest in the other State is the mechanism for enforcing those protections, which is known as investor-State arbitration, or investor-State dispute settlement (“ISDS”). As most treaty parties do not wish their nationals investing abroad to be compelled to dispute with the host State over whether the involved treaty has been breached decided by a national court of the host State, the parties agree in the BIT or the MIT that any dispute between a national of one party investing in the other party will be decided by, typically, a three-person arbitral tribunal, to which each party to the dispute—the investor and the host State—appoints one arbitrator. The third person, who is to chair the arbitration, is appointed by the other two arbitrators, or by the parties to the dispute, or—failing success in that effort for a stated period of time—by an agreed “appointing authority.” All three members of the arbitral tribunal are required and pledge to be independent and impartial to the arbitrating parties.
In accordance with a time-honored tradition, foreign sovereigns are generally immune from being summoned to court in another country. This doctrine of “sovereign immunity” was codified and modified in the Federal Sovereign Immunities Act of 1976 (“FSIA”). The FSIA divests United States courts of jurisdiction over defendants that are foreign states, subject to a number of general exceptions designed to provide a level of recourse for an aggrieved party against a foreign government. The FSIA codifies the long-standing attitude against suing foreign governments in the United States and “places in the federal courts the task of determining whether the general immunity provided by the Act attaches” in a given scenario, “weighing ‘the interests of justice’ and ‘the rights of both foreign states and litigants in United States courts.’” As such, the Act is designed to protect “both the rights of domestic litigants and foreign states.” However, the framers of the statute were, and those currently adjudicating disputes arising under the statute are, wary that “err[ing] in the former direction could implicate foreign policy concerns, while being overly solicitous of the status of foreign states could make it impossible for aggrieved parties to be made whole.” This virtual tug-of-war between these two interests was at the forefront of a case decided by the United States Court of Appeals for the Ninth Circuit in 2013, Sachs v. Republic of Austria, a battle that ultimately reached the Supreme Court.
While the use of chemical weapons during the Syrian Civil War has once again brought chemical weapons use to the forefront of public discourse, the prohibition of chemical weapons use goes as far back as 1685, when French and German armies agreed “that no side should use poisoned bullets.” At the Hague Conferences of 1899 and 1907, Germany, France, England, the United States, and other nations formally agreed to regulate chemical weapons use by banning the use of poison gas. Unfortunately, these agreements were not respected during World War I, and the use of chemical weapons caused 1.3 million casualties. Since then, there have been several other notable uses of chemical weapons—Japan used poison gas against the Chinese in the 1930s, Mussolini used them in Abyssinia (now Ethiopia) during World War II, the Egyptian Air Force used them in Yemen in 1967, and the United States used Agent Orange during the Vietnam War. Perhaps the most horrific use of chemical weapons occurred in 1988 when Iraqi President Saddam Hussein used mustard gas and nerve gas on a Kurdish town in northern Iraq, “killing 5,000 people almost immediately.”
The macroeconomic policies of states can produce significant costs and benefits for other states, yet international macroeconomic cooperation has been one of the weakest areas of international law. We ask why states have had such trouble cooperating over macroeconomic issues when they have been relatively successful at cooperation over other economic matters such as international trade. We argue that although the theoretical benefits of macroeconomic cooperation are real, in practice it is difficult to sustain because optimal cooperative policies are often uncertain and time variant, making it exceedingly difficult to craft clear rules for cooperation in many areas. It also is often difficult or impossible to design credible self-enforcement mechanisms. Recent cooperation on bank capital standards, the history of exchange rate cooperation, the European monetary union, and the prospects for broader monetary and fiscal cooperation all are discussed. Finally, we contrast the reasons for successful cooperation on international trade policy.
Envision living with the constant fear of being tortured or killed for no other reason than having a different political opinion than those in power. While that may be difficult to imagine for those who live in the United States, unfortunately, many around the world must live with that fear or flee from their homes. That fear has mobilized an estimated 11,000 to 15,000 refugees to flee from Syria. The mass exodus followed Syrian President Bashar al-Assad’s siege of the western city of Homs, which is “the heart of an 11-month uprising against his rule.” In those early months of violence, only around 7000 Syrian refugees had registered with the United Nations High Commissioner for Refugees (“UNHCR”). However, given the persistent violence and the recent allegations that President al-Assad has used chemical weapons on or near civilian populations, it is unsurprising that current UNHCR projections estimate that there are over two million Syrian refugees. And according to the UNHCR, if current trends persist, there may be well over three million Syrian refugees by the end of 2013.
The law, when enforced, can be used to punish. It can be used to articulate social norms and standards, or to define and impose responsibilities. The law can also, however, be used to change incentives. When designed and implemented properly, a good law establishes an incentive structure to align legal responsibility with the actors most able to change a set of results–actors who possess the information, the institutional capacity, and the practical ability to make a difference in a situation our society seeks to improve. In the 111th Congress, Representative Jim McDermott proposed just such a law. The Conflict Minerals Trade Act took note of America’s role in the devastating humanitarian crisis it may be inadvertently fueling: the situation in the Democratic Republic of Congo (“DRC” or “DR Congo”), home to the minerals used in nearly every electronic product known to man. Indeed, as the conflict in DR Congo reaches catastrophic proportions, the interests of a broad range of actors have become affected–and not just those in the human rights sector. Mineral wealth extracted from DR Congo is likely inside of your cell phone, your laptop, and your iPod–raising issues of personal responsibility as well as corporate ethics. As individuals confront their consciences and investors contemplate their stock portfolios, issues once relegated to the realm of international human rights law have now entered many of our homes and purses without us realizing. The Conflict Minerals Trade Act, by altering an incentive structure, aimed to change that unawareness by bringing our trade legislation in line with both our best interests and our ethical responsibilities.
On September 16, 2007, allegedly without any provocation or justification, personnel from the security firm formerly known as Blackwater Worldwide1 fired into Baghdad’s crowded Nisoor Square and killed seventeen Iraqi civilians. To date, neither the firm nor its employees have been held accountable for this incident. Moreover, a report issued by a U.S. House of Representatives oversight panel in October 2007 indicated that “Blackwater employees had been involved in at least 196 firefights in Iraq since 2005, an average of 1.4 shootings per week.” The report also stated that in 84 percent of these incidents, Blackwater personnel were the first to fire even though, by contract, they were allowed to fire only in self-defense.
Unfortunately, Blackwater is neither the first nor the only security firm to commit human rights abuses. In the late 1990s, personnel from another security firm, DynCorp International, allegedly bought women and girls as sex slaves while deployed in Bosnia. The only punishment rendered on the personnel responsible for these human rights abuses was the termination of their employment contracts. Moreover, despite these allegations, the firm later received a contract in Iraq worth $250 million.
Around the world, efforts by states to accommodate cultural pluralism vary in form and vigor. Some multiculturalist states cede to cultural minorities the authority to govern in certain substantive areas, such as family law. Not surprisingly, feminists have raised concerns that a state’s reluctance to govern in areas traditionally seen as “private,” and leaving those areas of law to customary legal systems, leaves women within those minority communities vulnerable to discrimination. The potential clash between multiculturalism and equality has been the focus of much theorizing in the last decade. Much of the discourse has been abstract, polarizing, and minimally productive. Furthermore, the ways in which women act with agency, engaging with and reformulating cultural policy, has received insufficient attention. Many women value cultural identity, even as they work to eliminate discrimination within their cultural communities.
The international human rights community, however, has not always viewed women as committed, active members of their cultural communities. By viewing African women almost exclusively as victims of their culture, the international human rights community has historically undervalued the potential for African women to reformulate cultural policies within their communities. The two primary human rights treaties for the promotion of gender equality in Africa, the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW” or “the Convention”) and the African Charter on Human and Peoples’ Rights (“African Charter” or “the Charter”), are dismissive of culture and gender equality, respectively. The Protocol to the African Charter on the Rights of Women in Africa (“the Protocol”) attempts to remedy the shortcomings of CEDAW and the African Charter and offers new hope for promoting gender equality on the continent. In addition to strong substantive rights, the Protocol provides important procedural rights to ensure that women have a voice in the ongoing examination and reformulation of cultural practices and customary law.