Contemporary Practice of the United States Relating to International Law (original) (raw)
2017
Does international law regulate the economic activities that sustain war? States have long guarded against international interference in their war economies. But today there is an increasing tendency to impose rules on the economic activity connected to war. Acting collectively or on their own, states have sought to sharpen the focus of multilateral sanctions, strangle terrorist finances, constrain the flows of small arms and light weapons, and exclude minerals mined in war zones from the supply chains of global commerce. A steady trickle of litigation has seen courts of different jurisdictions prosecute pillage and slavery in war and pursue business people and companies for committing or enabling crimes in situations of armed conflict. The paper is an introduction to the doctoral dissertation in law (defended in December 2017, University of Oslo) which examines how international law regulates the economies that help sustain today’s wars. The dissertation focuses on the international legal norms that have arisen to regulate phenomena that arise at the nexus of commerce and conflict. Drawing on advances in our understanding of the social and economic dynamics in situations of irregular warfare, the dissertation discusses developments in international humanitarian law, international criminal law, international human rights law and the law of international peace and security. The dissertation maps the global regulatory system that has arisen to respond to the nexus of commerce and conflict and resolves a principal uncertainty for international lawyers, namely the nature of the problem to be regulated and the normative content of the applicable rules of international law.
War Economies and International Law - Regulating the Economic Activities of Violent Conflict
Cambridge University Press , 2021
What rules apply when US troops occupy Syrian oil fields? Who is responsible when multinational companies use minerals extracted by child labourers in war zones? This book examines how international law regulates the war economies that are at the heart of strategic competition between great powers and help sustain the irregular warfare in today's war zones. Drawing on advances in our understanding of the social and economic dynamics in war zones, this book identifies predation, a combination of violence and economic opportunity, as the core pathology of war economies. The author presents a framework for understanding the regulation of war economies based on the history of international law and existing norms of international humanitarian law, international criminal law, international human rights law, and the law of international peace and security. War Economies and International Law concludes that the pathologies of predation in war demand answers based on an international regulatory strategy.
National SecurIty and Trade Wars: Legal ImplicatIons for Multilateralism
Italian Yearbook of International Law, 2020
Over the past few years the US has made extensive use of national security clauses at different levels. In the context of international trade, the use of section 232 of the Trade Expansion Act of 1972 has constituted the legal basis for the introduction of duties for aluminum and steel imports and more recently for the threat of further trade measures in relation to imports of cars. The "national security exception" allows WTO members to breach their WTO obligations for purposes of national security. The use of the security exception can be explained from a legal point of view by the vexata quaestio of the justiciability of the clause in international trade and in particular in the context of the WTO system. On 5 April 2019, a WTO dispute settlement panel (WT/DS512/R) issued a fundamental ruling in a dispute between Russia and Ukraine in which Russia claimed it had taken trade-restrictive measures for the purpose of protecting its national security. The WTO panel rejected the Russian argument that the article is non-justiciable and affirmed that actions taken under Article XXI(b) are reviewable on the basis of objective elements. According to the Panel, the security exception must be objectively observed. The panel's outcome may have some consequences for the US defense of its steel and aluminum tariffs at the WTO (and potentially on the future use of the security clause at international level).
Conflict Trade: Regulating Illicit Flows to and from War
2013
This expert analysis note describes an emerging approach to regulating illicit flows of goods to and from conflict zones. The approach, based on norms of national and international law defining business due diligence, is well suited for dilemmas posed by war economies. Due diligence offers the possibility of excluding goods from global flows if they are produced through human rights abuse or used for conflict financing, while at the same time it can limit harm to livelihoods and avoid the wholesale criminalisation of informal economies. To that end, further inter-governmental policy coordination is needed to define conflict financing under international law and to elaborate an effective regulatory strategy.
2016
If there is an existing threat to a nation's essential interests, international law will allow the country to impose unilateral measures on the basis of their subjective considerations or to derogate from an international obligation. In recent years, the use of national security to justify trade restriction measures seem to be prevailing, however, whether the necessity and appropriateness of certain security-related trade restriction measures should be subject to international governance is still a pending issue. This thesis conducts a study on whether and to what extent the International Court of Justice and WTO Dispute Settlement Body is available to impose judicial interference to harmonize export control issues or other national economic unilateral measures with political purposes. The conclusion seems to be quite ironic: while the International Court of Justice has the competence to provide advisory opinions or interpretations of a legal question with political implications, its jurisprudence has seldom been exercised in the area of trade sanctions; on the other hand, although the WTO Dispute Settlement Body has achieved abundant results in assessing the “necessity” and “trade restrictiveness” of a national measure, it currently has no willingness to usurp the authority of a government when a trade measure is security related.
Dollar Diplomacy/Dollar Defense: The Fabric of Economics and National Security Law
International Lawyer, 1992
In his first term President George Bush's most enduring achievements have relied upon the flexing of U.S. economic and national security power. The lightning-quick Persian Gulf War witnessed not only the use of American and allied military force, but also the sustained application of comprehensive, unilateral and multilateral economic sanctions. On a front closer to home, the Bush administration commenced negotiations that drew the nation closer to a hemisphere-wide free trade area that would include both Canada and Mexico. Both efforts required the United States to marshal dramatically its economic and national security powers, raising significant questions about the proper role of the three governmental branches in the legal regimes governing those powers. This article examines the major areas in which the three branches have developed economics and national security law during the history of our republic. Such legal regimes generally fall into two broad categories: first, those laws that manipulate fiscal, monetary, and domestic economic policies to achieve national security goals; and second, those laws that control or respond to external rela
General International Economic Law: Theory and Fundamental Concepts (ISBN 978-0-415-54327-9)
Routledge: Edited and with a new introduction by Asif H. Qureshi and Xuan Gao, both at University of Manchester, UK The legal foundations of the international economy—which underpin both the actions of sovereign states, as well as the conduct of individuals and business entities engaged in cross-border transactions—are now more than ever a crucial site for scholarly exploration. Indeed, with the growing impact of globalization, research in and around the subject flourishes as never before. This new six-volume collection from Routledge meets the need for an authoritative reference work to map a rapidly growing and ever more complex corpus of literature. Edited by leading scholars, International Economic Law gathers foundational and canonical work, together with more contemporary and cutting-edge scholarship. The collection boldly identifies and elucidates International Economic Law’s critical concepts to make sense of the subdiscipline’s evolution and to garner insights into its likely development. With a full index, together with a comprehensive introduction, newly written by the editors, which places the collected material in its historical and intellectual context, International Economic Law is an essential work of reference. For the novice or advanced student, the collection will be particularly useful as an essential database allowing scattered and often fugitive material to be easilylocated. And, for the more advanced scholar, as well as practitioners and policy-makers, it will be welcomed as a crucial tool permitting rapid access to less familiar—and sometimes overlooked—texts. For all users, International Economic Law will be valued as a vital one-stop research and pedagogic resource. CONTENTS General Commentary: A Conceptual Approach toInternational Economic Law ASIF H QURESHI AND XUAN GAO Commentary: General International Economic Law: Theory and Fundamental Concepts ASIF H QURESHI AND XUAN GAO Section 1 International Economic Law: Theory Part 1 Conceptualising international economic law The international economic law revolution JOEL P. TRACHTMAN The traditional relationship between international trade law and international law DONALD M. MCRAE Part 2 Economic doctrine A short history of the Washington Consensus JOHN WILLIAMSON Part 3 International distributive justice International distributive justice PHILIPPE VAN PARIJS Global justice and the Bretton Woods Institutions FRANK J. GARCIA Section 2 International Economic Law: Fundamental Concepts Part 4 Sources Is there customary international economic law? STEPHEN ZAMORA The challenge of soft law: development and change in international law C. M. CHINKIN Part 5 The international economic setting Defining globalisation JAN AART SCHOLTE Part 6 Participants Who are the developing countries in the WTO? FAN CUI Non-governmental organizations JAGDISH BHAGWATI Part 7 Economic sovereignty Sovereignty-modern: a new approach to an outdated concept JOHN H. JACKSON Rethinking the sovereignty debate in International Economic Law KAL RAUSTIALA Part 8 Non-discrimination and differential treatment Differential treatment in International Law: towards a new paradigm of inter-state relations PHILIPPE CULLET The principle of non-discrimination in International Economic Law: a conceptual and historical sketch FRIEDL WEISS Part 9 Extraterritorial jurisdiction Introduction in: Report of the Task Force on Extraterritorial Jurisdiction THE INTERNATIONAL BAR ASSOCIATION The limits of substantive International Economic Law: in support of reasonable extraterritorial jurisdiction CEDRIC RYNGAERT Part 10 State immunity: commercial transactions Exceptions to state immunity: the concept of commerciality HAZEL FOX Part 11 Constitutionalising International Economic Law National constitutions and International Economic Law ERNST-ULRICH PETERSMANN Part 12 Economic human rights The constitutional protection of economic rights TERENCE DAINTITH Part 13 Economic sanctions The legality of economic coercion in general International Law OMER YOUSIF ELAGAB
War Profiteering and Armed Conflicts: Examining Applicable Aspects of International Law
Groningen Journal of International Law, 2023
The proliferation of armed conflicts is perhaps the biggest challenge of the 21 st Century international system. These conflicts have become a monumental lucrative industry, where parties external to the fighting, i.e., third parties, smile to the bank, from proceeds made on major deals in defence contracts and arms sales. In the process, they leave behind a trail of civilian fatalities. Notwithstanding the extensive literature on armed conflicts, the scholarly focus on the accountability framework related to war profiteering remains limited. This article examines the applicability of certain aspects of international law, in particular, human rights and humanitarian law, to war profiteering and highlights the fact that the current framework doesn't sufficiently deal with the problem. It submits that the danger that war profiteering poses to world peace and security is one that must be taken seriously. In the absence of clear guidance under these regimes of international law, the article stresses the need to address the problem in a manner that responds adequately, especially with respect to determining a specific accountability framework.
National Security and Trade Wars: Legal Implications for Mulitilateralism
Italian Yearbook of International Law, 2020
Over the past few years the US has made extensive use of national security clauses at different levels. In the context of international trade, the use of section 232 of the Trade Expansion Act of 1972 has constituted the legal basis for the introduction of duties for aluminum and steel imports and more recently for the threat of further trade measures in relation to imports of cars. The "national security exception" allows WTO members to breach their WTO obligations for purposes of national security. The use of the security exception can be explained from a legal point of view by the vexata quaestio of the justiciability of the clause in international trade and in particular in the context of the WTO system. On 5 April 2019, a WTO dispute settlement panel (WT/DS512/R) issued a fundamental ruling in a dispute between Russia and Ukraine in which Russia claimed it had taken trade-restrictive measures for the purpose of protecting its national security. The WTO panel rejected the Russian argument that the article is non-justiciable and affirmed that actions taken under Article XXI(b) are reviewable on the basis of objective elements. According to the Panel, the security exception must be objectively observed. The panel's outcome may have some consequences for the US defense of its steel and aluminum tariffs at the WTO (and potentially on the future use of the security clause at international level).
American Yearbook of International Law
AMERICAN YEARBOOK OF INTERNATIONAL LAW (AYIL), 2023
Within the globalization era, the conduct, resolution,and impact of international conflicts are frequently not limited solely to the belligerent states involved. Conflict influences distant countries and often illustrates the vulnerability of sea access to the security of coastal and landlocked nations, by factoring in that: import/export commodities are impacted;access to vital energy resources is undermined; and/or international resource distribution is threatened. Therefore, the maritime domain (and its military, legal, and commercial components) represents a Russia/Ukraine conflict cornerstone and the epicenter of this analysis.
Mineral Economics , 2024
Permanent sovereignty over natural resources (PSNR) and the principle of free trade are two strongly established principles in international law. The main question addressed by the authors of this article is whether it is fair to force states of origin of natural resources to export said resources to other states instead of exploiting them in the interest of their national development? On the one hand trade in natural resources is subject to the legal rules of international trade law, law of the World Trade Organization (WTO) in particular, which enshrines an obligation to freely trade across borders. On the other hand, states possess permanent sovereignty over their natural resources which encompass both the right to trade in natural resources and the right to limit such trade. It is the balance between the two principles that is hard to reach. Analysis presented in this article reveals that existing provisions of the law of the WTO and its jurisprudence lean away from a just balance between the two. The obligation to enable free trade prevails over the rights derived from the permanent sovereignty over natural resources. According to the WTO’s Trade Policy Reviews, more than one-third of all notified export restrictions are in the natural resource sector. Yet, WTO rules are not effective enough to secure states’ permanent sovereignty over their natural resources. Based on WTO jurisprudence and the outcomes of China — Measures Related to the Exportation of Various Raw Materials (China-Raw Materials), China — Measures Related to the Exportation of Rare Earths, Tungsten and Molybdenum (China – Rare Earth) and most recently in Indonesia – Measures Relating to Raw Materials (Indonesia – Raw Materials), it is argued that the WTO jurisprudence overly favours the principle of free trade over PSNR.
Financial Controls and Counter-Proliferation of Weapons of Mass Destruction
Case Western Reserve journal of international law
This paper focuses on financial controls and vigilance against the proliferation of Weapons of Mass Destruction (WMD). It refers to the new Financial Action task Force (FATF) Recommendations on this subject and outlines relevant provisions of the U.N. Security Council Resolutions (UNSCRs) and the considerable challenges facing the international community in their implementation. While it suggests that there is a good deal of work underway towards consistent and effective implementation, it points to some concrete measures and areas where counter-proliferation finance efforts could focus, particularly in the area of commerce and trade.
International Law & Laws of War
International law takes its roots in the ancient religious precept by the most famous name of all, Holland’s Hugo Grotius (1583-1645). He devised the global system of law which originated from the genesis in the early formation of states. There are two important concepts to take into account: the cause of war and the conduct of war. Within the world of international law, there are legal, domestic and international systems that operate by a set of rules that dictate trade, commerce, finance, communication, and travel. The International law came into being because of the intricate relationship between states and their relations to each other. Centuries in the making, international law has shaped the international community, the evolution of globalization, and the expectancy of each state to be interdependent by being aware of their environment and maintain diplomatic relation on human rights. In this research paper, I will draw the line between the international law in regards to the laws of war that seem to supersede the universal standard of acceptance. I will provide concrete examples that support the notion that sometimes international law and the law of wars can be misguided, miscalculated, and blended into-a-out-of-focus concept at the international level that brings conflicts of interests between states. Self-gain and self-interests cause wars to be engaged and world peace to be disturbed based on false assumption and misbehavioral preemptive measures based on irrationality. The spread of democracy worldwide is often threatened by wars. There is a growing body of evidence that the laws of wars could not support wars in general terms to be fought in the first place.