Suchergebnisse

The defining feature of foreign relations law is that it is distinct from domestic law. Courts have recognized that foreign affairs are political by their nature and thus unsuited to adjudication, that state and local involvement is inappropriate in foreign affairs, and that the President has the lead role in foreign policymaking. In other words, they have said that foreign relations are exceptional. But foreign relations exceptionalism — the belief that legal issues arising from foreign relations are functionally, doctrinally, and even methodologically distinct from those arising in domestic policy — was not always the prevailing view. In the early twentieth century, a revolution took place in foreign relations law. Under the intellectual leadership of Justice Sutherland, the Supreme Court adopted the idea that foreign affairs are an exceptional sphere of policymaking, separate from domestic law and best suited to exclusively federal, and primarily executive, control. The exceptionalist approach has dominated foreign relations law since that time, but it has always had questionable foundations. Since the end of the Cold War, there has been a second revolution in foreign relations law, one whose scope and significance rival the Sutherland revolution, but one that has gone largely unrecognized. Over the last twenty-five years, the Supreme Court has increasingly rejected the idea that foreign affairs are different from domestic affairs. Instead, it has started treating foreign relations issues as if they were run-of-the-mill domestic policy issues, suitable for judicial review and governed by ordinary separation of powers and statutory interpretation principles. This "normalization†of foreign relations law has taken place in three waves. It began with the end of the Cold War and the rise of globalization in the 1990s. It continued — counterintuitively — during the war on terror, despite the strong case for exceptionalism in a time of exigency. And it has proceeded, during the Roberts Court, to ...

The U.S. Supreme Court has finally decidedKiobel v. Royal Dutch Petroleum Co.It is the Court's second modern decision applying the cryptic Alien Tort Statute (ATS), which was enacted in 1789. Since the 1980 court of appeals decision inFilartiga v. Pena-Iralapermitting a wide of range human rights cases to go forward under the statute's auspices, the ATS has garnered worldwide attention and has become the main engine for transnational human rights litigation in the United States. The statute itself and the decisions that it generates also serve as state practice that might contribute to the developing customary international law of civil universal jurisdiction, immunity for defendants in human rights cases, the duties of corporations, and the right to a remedy for violations of fundamental human rights. During the 1990s, the ATS became the focal point for academic disputes about the status of customary international law as federal common law. Indeed, to the extent that the "culture wars" have played out in U.S. foreign relations law, the ATS has been their center of gravity.

Abstract
Questions of foreign state immunity frequently involve the 'liminal space' between substance and procedure, between domestic and international law and between the domestic law of the forum states and domestic laws of other states. US courts typically (and rightly) rest their analysis not only upon relevant foreign law and international practice but also upon procedural norms that are not formally part of the Foreign Sovereign Immunities Act. Immunity frequently implicates both the reach and power of domestic courts and the authority, organization and expectations of foreign states. It is unsurprising, therefore, that the domestic procedures of the forum court and the internal laws of both the forum state and the foreign state play significant roles in immunity determinations, although the relative paucity of concrete evidence of state practice can make it very difficult to discern the content of customary international law. 'Restatements of domestic law' can play an important role in developing principles of immunity, perhaps especially in the liminal spaces between domestic and foreign, substance and procedure. Hopefully, institutes in other countries will produce works like the Restatement of the Law (Fourth): The Foreign Relations Law of the United States.