Tag: International Law

Climate Change – The New “Superwhale” in the Room: International Whaling and Climate Change Politics – Too Much in Common? – Article by Cinnamon Carlarne

From Volume 80, Number 4 (May 2007)
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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.

 

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U.S. Courts and the International Law of Expropriation: Toward a New Model for Breach of Contract – Article by Peter Charles Choharis

From Volume 80, Number 1 (November 2006)
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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to reach the merits of expropriation claims, but they also frequently ignore relevant authority and rely upon the outdated and muddled Restatement (Third) for guidance.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.

 

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Executive Federalism: Forging New Federalist Constraints on the Treaty Power – Article by Duncan B. Hollis

From Volume 79, Number 6 (September 2006)
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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.

In contrast to international law’s more comprehensive framework, the Constitution contains only three express commands with respect to treaties: (1) the federal government makes treaties; (2) the judiciary can hear cases concerning treaties; and (3) treaties trump state law. First, in vesting executive power in the president, Article II assigns him the “Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur.” At the same time, Article I denies states the right to “enter into any Treaty, Alliance, or Confederation.” Second, Article III extends the judicial power “to all Cases, in Law and Equity, arising under… Treaties made, or which shall be made, under” the authority of the United States. Third, in Article VI the Constitution mandates that, like federal law, “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges of every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

 

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Extradition of Execution? Policy Constraints in the United States’ War on Terror – Note by James Finsten

From Volume 77, Number 4 (May 2004)
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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.

On March 4, 2004, a German appellate court vacated this conviction and ordered a new trial after Motassadeq’s lawyers successfully argued that the U.S. government withheld potentially exculpatory evidence during the first trial. In citing the failure of the United States to cooperate with the German courts, Judge Klaus Tolksdorf, presiding judge of the five-judge panel, stated that “‘under the German law, all available evidence must be made available . . . [and] the justice system could not bend to accommodate security concerns stemming from international efforts to fight terrorism. . . . [T]he fight against terrorism cannot be a wild, unjust war.’”

Given that the murders took place on American soil and that the vast majority of victims were American citizens, it may come as a surprise to the American public that their government did not attempt to extradite Motassadeq so that he could face trial in U.S. courts. After all, the United States has held Zacharias Moussaoui since prior to September 11 and charged him with six counts of conspiracy in the aftermath of the attacks. President George Bush himself promised “to pursue the terrorists in cities and camps and caves across the earth.” The United States was willing to pursue regime change in Afghanistan and indefinitely detain al-Qaida suspects in Cuba, and it would stand to reason that the United States would seek custody of anyone who was suspected of aiding the perpetrators of September 11.

 

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Law and the Shaping of American Foreign Policy: The Twenty Years’ Crisis – Article by Jonathan Zasloff

From Volume 77, Number 3 (March 2004)
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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.

 

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Using Legal Process to Fight Terrorism: Detentions, Military Commissions, International Tribunals, and the Rule of Law – Article by Laura A. Dickinson

From Volume 75, Number 6 (September 2002)
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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. I will focus here on the latter two arguments.

 

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