The Constitution of the United States and Foreign Relations

2019 ◽  
Author(s):  
Martin S. Flaherty
Keyword(s):  
United States ◽  
Foreign Policy ◽  
International Law ◽  
Legal System ◽  
Foreign Relations ◽  
The United States ◽  
Customary International Law ◽  
The Us ◽  
The Status ◽  
Executive Agreements

Foreign relations under the US Constitution starts with the paradox, also seen in domestic matters, of relatively scant text providing guidance for the exercise of vast power. Founding understandings, structural inference, and ongoing constitutional custom and precedent have filled in much, though hardly all, of the framework over the course of two hundred years. As a result, two basic questions frame the relationship between the Constitution and US foreign policy: (1) which parts of the US government, alone or in combination, properly exercise authority in the making of foreign policy; and (2) once made, what is the status of the nation’s international legal obligations in the US domestic legal system. The making of American foreign policy is framed by the Constitution’s commitment to separation of powers. Congress, the president, and the courts are all allocated discrete yet significant foreign affairs authority. Determining the exact borders and overlaps in areas such as the use of military force, emergency measures, and treaty termination continues to generate controversy. The status of international law in the US legal system in the first instance turns on whether resulting obligations derive from agreements or custom. The United States enters into international agreements in three ways: treaties, congressional-executive agreements, and sole executive agreements. Complex doctrine deals with the domestic applicability of treaties in particular. US courts primarily apply customary international law in two basic ways. They can exercise a version of their common lawmaking authority to fashion rules of decision based on international custom. They also apply customary international law when incorporated into domestic law by statute.

Customary International Law and U.S. Judicial Power

2020 ◽  
pp. 251-264
Author(s):  
Thomas H. Lee
Keyword(s):  
United States ◽  
Human Rights ◽  
Foreign Policy ◽  
International Law ◽  
Foreign Relations ◽  
The United States ◽  
Federal Courts ◽  
Judicial Power ◽  
Customary International Law ◽  
The Third

This chapter describes specific points of divergence between the Third and Fourth Restatements of the Foreign Relations Law of the United States regarding how U.S. courts should engage with customary international law. The Third Restatement, adopted in 1987, envisioned U.S. courts fluent in and engaged with international law, deploying a U.S. foreign relations jurisprudence in dialogue with international law and lawyers. Customary international law was a central feature of this vision because it was the prime pathway for human rights litigation in federal courts when U.S. treaty-based human-rights initiatives had stalled. Appearing thirty years later, the Fourth Restatement exhibits a fundamentally different orientation toward customary international law. Customary international law is no longer embraced as it was in the Third Restatement as an opportunity to play offense, to advance the international law of human rights. That vision inspired a reaction among some U.S. legal scholars who questioned the U.S. federal law status of customary international law and the legitimacy of U.S. judges advancing the customary international law of human rights. The Fourth Restatement seeks a middle ground by defending against this revision of customary international law’s status role in the United States, concerned that the revisionist view might encourage and provide cover for U.S. courts to dismiss cases and claims with foreign policy ramifications that they should be adjudicating. The approaches of the two Restatements, taken together, have contributed to the disengagement of U.S. judges from customary international law altogether, to the detriment of U.S. conduct of foreign policy and contrary to the original constitutional specification of the judicial power of the United States as reflected in Article III, the Judiciary Act of 1789 that established the federal courts, and early historical practice.

Adjudicatory Jurisdiction and Public International Law

2020 ◽  
pp. 303-318
Author(s):  
Austen Parrish
Keyword(s):  
United States ◽  
International Law ◽  
Legal System ◽  
Foreign Relations ◽  
The United States ◽  
Public International Law ◽  
Customary International Law ◽  
Illegal Activity ◽  
International Legal System ◽  
Personal Jurisdiction

This chapter explores how the Fourth Restatement of the Foreign Relations Law of the United States charts a new, unexpected path in the area of adjudicatory jurisdiction. The Fourth Restatement breaks with common understandings to find that personal jurisdiction is not a concern of international law. It indicates that “with the significant exception of various forms of immunity, modern customary international law generally does not impose limits on jurisdiction to adjudicate.” The Fourth Restatement’s discussion of adjudicatory jurisdiction also appears to premise its conclusion on two unorthodox approaches to international law. First, it implies that fundamental structural limits of the international legal system can disappear unless states are vigilant in protesting illegal activity of other states. However, states are not required to persistently protest illegal activity, and it is far from clear that the absence of protests can nullify long-standing principles of sovereignty. Second, the Restatement appears to assume that states have unfettered authority absent a limiting customary rule. Yet international legal practice has not traditionally addressed jurisdictional questions that way.

scholarly journals Alien Tort Claims and the Status of Customary International Law

2012 ◽  
Vol 106 (3) ◽  
pp. 531-546 ◽  
Author(s):  
Carlos M. Vázquez
Keyword(s):  
International Law ◽  
Legal System ◽  
Foreign Relations ◽  
The United States ◽  
Modern Human ◽  
Federal Law ◽  
Customary International Law ◽  
Court Of Appeals ◽  
The Status ◽  
Federal Jurisdiction

Much of the recent debate about the status of customary international law in the U.S. legal system has revolved around the alien tort provision of the Judiciary Act of 1789, currently section 1350 of Title 28. In Filártiga v. Peña-Irala, the decision that launched modern human rights litigation in the United States, the Court of Appeals for the Second Circuit relied on the view that customary international law has the status of federal common law in upholding section 1350’s grant of federal jurisdiction over a suit between aliens. The court’s position that customary international law was federal law was the prevailing view at the time—a view that has subsequently been dubbed the “modern position.” It was the view set forth in the black letter of the Restatement (Third) of Foreign Relations Law. Filártiga triggered a revisionist challenge to the modern position, with revisionists arguing that customary international law has the status of federal law only if given that status through statute or treaty, or perhaps through sole executive action; in the absence of such incorporation, customary international law has, at best, the status of State law in our legal system.

scholarly journals Samsons or Methuselahs? The (Potential) Virtue of Article II Treaties

AJIL Unbound ◽  
2019 ◽  
Vol 113 ◽  
pp. 173-177
Author(s):  
Edward T. Swaine
Keyword(s):  
United States ◽  
International Law ◽  
Foreign Relations ◽  
The United States ◽  
Interesting Approach ◽  
Executive Agreements

Why does Wüsthof sell a fancy kitchen knife for US$2000, but mass-produce something similar for US$100? Why do some of us mail holiday cards, while sending anything similar by email? Why does the American Journal of International Law print its journal, when interested readers—and there should be many—can read articles like Julian Nyarko's “Giving the Treaty a Purpose: Comparing the Durability of Treaties and Executive Agreements” online? Come to think of it, why bother with Article II treaties, when they too have a near substitute, more easily produced, in congressional-executive agreements? On this last question, Nyarko's article offers an interesting approach and an intriguing finding: if we measure the commitment strength of agreements in terms of duration, treaties are measurably longer and, perhaps, stronger. Having spent several years working on treaty issues for the Restatement (Fourth) of the Foreign Relations Law of the United States, I am acutely (and perhaps embarrassingly) interested in finding out why they matter. In this essay, I note some misgivings about how the article reckons the substitutability of agreements and about treating their age as a proxy for strength—perhaps Methuselah rivaled Samson's might at some point, but that was not how he distinguished himself—before closing by trying to imagine rival inferences that might be consistent with Nyarko's valuable insights.

A Law of the Future or A Law of the Past? Modern Tribunals and the International Law of Expropriation

1991 ◽  
Vol 85 (3) ◽  
pp. 474-505 ◽  
Author(s):  
Patrick M. Norton
Keyword(s):  
United States ◽  
International Law ◽  
Foreign Relations ◽  
The United States ◽  
General Assembly ◽  
Customary International Law ◽  
The Past ◽  
United Nations General ◽  
Full Compensation ◽  
United Nations General Assembly

One precedent creates another. They soon accumulate and constitute law. What yesterday was fact, today is doctrine.Junius†Less than twenty years ago, a large majority of the United Nations General Assembly declared the customary international law of expropriation dead. Eighty-six governments supported a resolution holding that a state expropriating foreign property “is entitled to determine the amount of possible compensation and the mode of payment, and … any disputes which might arise should be settled in accordance with the national legislation of [that] State.” Scholars cited this and other General Assembly resolutions as evidence that international law no longer required full compensation for the expropriation of foreign property. This view had sufficient support to precipitate an acrimonious dispute in the preparation of the Restatement (Third) of the Foreign Relations Law of the United States, which reaffirmed only in its later drafts the traditional “Hull formula.”

Federal Statutes, Executive Orders and “Self-Executing Custom”

1987 ◽  
Vol 81 (2) ◽  
pp. 371-375 ◽  
Author(s):  
Frederic L. Kirgis
Keyword(s):  
United States ◽  
International Law ◽  
Foreign Relations ◽  
The United States ◽  
Customary Law ◽  
Federal Law ◽  
Executive Orders ◽  
Customary International Law ◽  
The Face ◽  
Federal Statute

A hotly debated issue raised in this publication’s October 1986 Agora and, repeatedly, during the drafting of the Restatement of Foreign Relations Law of the United States (Revised) has to do with the relationship between customary international law and federal law in the United States. Most of the debate addressed whether a newly emerged custom would supersede an earlier federal statute or self-executing treaty. The reporters of the Restatement took a strong stand at first, placing custom on the same plane as federal statutes and self-executing treaties: in case of conflict, the latest in time should prevail. Criticism rolled in, and the reporters eventually retreated a bit. The final version says only that since custom and international agreements have equal authority in international law, and both are law of the United States, “arguably later customary law should be given effect as law of the United States, even in the face of an earlier law or agreement, just as a later international agreement of the United States is given effect in the face of an earlier law or agreement.”’

Jurisdiction, State Immunity, and Judgments in the Restatement (Fourth) of US Foreign Relations Law

2020 ◽  
Vol 19 (1) ◽  
pp. 101-135
Author(s):  
William S Dodge
Keyword(s):  
United States ◽  
International Law ◽  
Foreign Relations ◽  
The United States ◽  
Great Frequency ◽  
Customary International Law ◽  
State Immunity ◽  
American Law ◽  
The Law ◽  
Domestic Law

Abstract In 2018, the American Law Institute published the Restatement (Fourth) of Foreign Relations Law, which restates the law of the United States governing jurisdiction, state immunity, and judgments. These issues arise with great frequency in international cases brought in US courts, including cases involving Chinese parties. This article provides an overview of many of the key provisions of the Restatement (Fourth). The article describes the Restatement (Fourth)’s treatment of the customary international law of jurisdiction, as well the rules of US domestic law based on international comity that US courts apply when deciding international cases.

scholarly journals FAKTOR IDIOSYNCRATIC RAUL CASTRO DALAM PERUBAHAN HUBUNGAN LUAR NEGERI KUBA-AMERIKA SERIKAT

2018 ◽  
Vol 2 (1) ◽  
pp. 1-23
Author(s):  
Muhamad Bayu Saputra
Keyword(s):  
United States ◽  
Foreign Policy ◽  
Foreign Relations ◽  
Descriptive Analysis ◽  
The United States ◽  
Diplomatic Relations ◽  
Analysis Techniques ◽  
The Us ◽  
Us Government ◽  
The Government

The purpose and goal of this research is to know what the response taken by the US government to Raul Castro, the changes in the foreign relations of both countries, presence idiosyncratic factors of Raul Castro to the foreign relations of both countries. The method used is descriptive analysis techniques. Most of the data collected through literature and website searches. These results indicate that the factor of idiosyncratic Raul Castro in changes in foreign relations between Cuba and the United States. The conclusion from this study is the change that occurs in the foreign relations between the two countries, the changes occurring in the country of Cuba after Raul became president of Cuba, as well as the response taken by the US government against the government of Raul Castro well with the reopening of diplomatic relations between both countries, and issued a foreign policy that is intended to drive the Cuban economy, the type of personality that is owned by Raul Castro based on idiosyncratic theory is influential

Toward the Fifth Restatement of U.S. Foreign Relations Law

2020 ◽  
pp. 335-358
Author(s):  
Pamela K. Bookman
Keyword(s):  
United States ◽  
International Law ◽  
Foreign Relations ◽  
The United States ◽  
Public International Law ◽  
State Practice ◽  
The World ◽  
The Status ◽  
International Adjudication

This chapter discusses the debate that the Fourth Restatement of Foreign Relations Law of the United States has sparked regarding the status of adjudicative jurisdiction under public international law. The Fourth Restatement has received considerable attention for its conclusion that adjudicative jurisdiction is not a concern of public international law. But exercises of adjudicative jurisdiction around the world are not static. Innovations and expansions of international adjudication in courts around the world are in process and looming on the horizon. This chapter surveys these developments and considers whether they could lead the next Restatement to alter its position on adjudicative jurisdiction. It also evaluates how these developments could translate into state practice and expressions of opinio juris that might affect the international law status of adjudicative jurisdiction.

Public Opinion and US Foreign Relations

2019 ◽  
Author(s):  
Nicholas J. Cull
Keyword(s):  
United States ◽  
Foreign Policy ◽  
Public Opinion ◽  
21St Century ◽  
Foreign Relations ◽  
Public Diplomacy ◽  
The United States ◽  
Us History ◽  
The Us ◽  
Us Foreign Relations

Public opinion has been part of US foreign relations in two key ways. As one would expect in a democracy, the American public has shaped the foreign policy of its government. No less significantly, the United States has sought to influence foreign public opinion as a tool of its diplomacy, now known as public diplomacy. The US public has also been a target of foreign attempts at influence with varying degrees of success. While analysis across the span of US history reveals a continuity of issues and approaches, issues of public opinion gained unprecedented salience in the second decade of the 21st century. This salience was not matched by scholarship.

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