Suchergebnisse

Most experts on America's dealings with other nations would agree that we have a unique, complicated, energy-depleting system of law for allocating authority to govern our official conduct offshore. The U.S. state and federal constitutions incorporate some version of separation of powers with checks and balances, requiring the inter related independence of 3 branches of government. At the constitutional level, this system allocates action and commit ment ability related to foreign affairs between the Execu tive and Legislative branches, but so far the courts have not ventured far into resolution of conflicts between them. The Constitution says the president has executive power and Congress does not have express, general power to legislate or manage in foreign affairs. It does not resolve the question of who is master in foreign policy. A number of problem cases influencing the shaping of our external relations are military policy, control of expenditures, and arms control and disarmament. The possibility of a transnational government, citizen participation in policy decisions, America's good faith in international agreements, and the constitutional revision for foreign affairs are also important questions concerning America and the world. And in this complex it may be that for the first time in the nation's history the people have to live with unrelieved separation of powers, while Congress increasingly asserts a will to participate in foreign affairs.

Signs of inadequacy and crisis in general international law as to the economic ownership interests of aliens have been numerous since World War II. The pages o f the J ournal have recorded and analyzed a number of situations in which the existing legal order is not working well: ineffectual resorts to international adjudication; unilateral disregard of arbitral commitments; national decisions made in the name of international law but of dubious international acceptability; professional frustrations so intense as to have directed prime attention to happenstantial "salvage" operations. In a phase now apparently ended, groups in capital exporting countries have tried time after time to put forward normative formulations of investment codes as new positive law, only to have their efforts ignored in developing countries. Now we seem to be in a new phase, one in which direct investment-receiving, or host, countries, organized into groups or regional arrangements, compact among themselves that a comprehensive normative system shall prevail in each of them as to the legal relationships between foreign investors and each of those countries. Although foreign investment codes for particular states, including systems of prior restraints on entry in some developed countries, are not new, the Andean Foreign Investment Code is, indeed, a new juristic phenomenon. The Editors of the Journal have wished, therefore, to record and analyze preliminarily this new development in transnational investment law, one whose text has been carried in International Legal Materials and considered as to its possible impact in Research Panels organized by the American Society of International Law.