Market Practice and the Evolution of Foreign Sovereign Immunity

2018 ◽  
Vol 43 (02) ◽  
pp. 496-526 ◽  
Author(s):  
W. Mark C. Weidemaier ◽  
Mitu Gulati
Keyword(s):  
United States ◽  
Twentieth Century ◽  
United Kingdom ◽  
International Law ◽  
The United States ◽  
Default Rule ◽  
Sovereign Immunity ◽  
Loan Contracts ◽  
Market Practice ◽  
As If

The twentieth century witnessed a “tectonic” shift in international law, from absolute to restrictive theories of sovereign immunity. As conventionally understood, however, this transformation represented only a change in default rule. Under absolute immunity, courts could not hear lawsuits and enforce judgments against a foreign sovereign without its consent. Under restrictive immunity, foreign sovereigns were not immune to their commercial acts, regardless of consent. Using a two-century dataset of loan contracts, we show that market practice undermines this conventional understanding. For centuries, loan contracts were structured as if the rules of sovereign immunity could not be changed by contract. In the 1970s, however, market practice changed, seemingly in response to the codification of sovereign immunity law in the United States and United Kingdom. We explore why market practice conflicts with the conventional understanding of sovereign immunity, and we examine the association between codification and the structure of sovereign loan contracts.

scholarly journals 9/11 as False Flag: Why International Law Must Dare to Care

2017 ◽  
Vol 25 (3) ◽  
pp. 371-392 ◽  
Author(s):  
Amy Baker Benjamin
Keyword(s):  
United States ◽  
Twentieth Century ◽  
United Nations ◽  
International Law ◽  
The United States ◽  
September 11 ◽  
African History ◽  
The Us ◽  
The United Nations ◽  
International War

At the heart of contemporary international law lies a paradox: the attacks on the United States of September 11, 2001 have justified 16 years of international war, yet the official international community, embodied principally in the United Nations, has failed to question or even scrutinise the US government's account of those attacks. Despite the emergence of an impressive and serious body of literature that impugns the official account and even suggests that 9/11 may have been a classic (if unprecedentedly monstrous) false-flag attack, international statesmen, following the lead of scholars, have been reluctant to wade into what appears to be a very real controversy. African nations are no strangers to the concept of the false flag tactic, and to its use historically in the pursuit of illegitimate geopolitical aims and interests. This article draws on recent African history in this regard, as well as on deeper twentieth-century European and American history, to lay a foundation for entertaining the possibility of 9/11-as-false-flag. This article then argues that the United Nations should seek to fulfil its core and incontrovertible ‘jury’ function of determining the existence of inter-state aggression in order to exercise a long-overdue oversight of the official 9/11 narrative.

scholarly journals International Law in the US Legal System

2020 ◽  
Author(s):  
Bradley Curtis A
Keyword(s):  
United States ◽  
International Law ◽  
Legal System ◽  
Separation Of Powers ◽  
The United States ◽  
Foreign Affairs ◽  
Sovereign Immunity ◽  
War Powers ◽  
Jus Cogens ◽  
The U.S

International Law in the U.S. Legal System provides a wide-ranging overview of how international law intersects with the domestic legal system of the United States, and points out various unresolved issues and areas of controversy. Curtis Bradley explains the structure of the U.S. legal system and the various separation of powers and federalism considerations implicated by this structure, especially as these considerations relate to the conduct of foreign affairs. Against this backdrop, he covers all of the principal forms of international law: treaties, executive agreements, decisions and orders of international institutions, customary international law, and jus cogens norms. He also explores a number of issues that are implicated by the intersection of U.S. law and international law, such as treaty withdrawal, foreign sovereign immunity, international human rights litigation, war powers, extradition, and extraterritoriality. This book highlights recent decisions and events relating to the topic, including various actions taken during the Trump administration, while also taking into account relevant historical materials, including materials relating to the U.S. Constitutional Founding. Written by one of the most cited international law scholars in the United States, the book is a resource for lawyers, law students, legal scholars, and judges from around the world.

Part II, 5 Legal Protection of Religious Freedom

2013 ◽  
Author(s):  
Ahdar Rex ◽  
Leigh Ian
Keyword(s):  
United States ◽  
United Kingdom ◽  
International Law ◽  
Religious Freedom ◽  
Legal Protection ◽  
The United States ◽  
Religious Liberty ◽  
Constitutional Protection ◽  
Difficult Question ◽  
The United Kingdom

This chapter first considers the broad nature of ‘religious freedom’. It then outlines the various systems of constitutional protection for religious liberty in different nations such as the United States, the United Kingdom, Canada, and so on, as well as the guarantees in international law for religious rights. Next, it explores the difficult question of how one defines ‘religion’ for the purpose of recognizing religious liberty.

Wright’s Afromodern Search for Political Freedom

2018 ◽  
pp. 26-44
Author(s):  
Lewis R. Gordon
Keyword(s):  
United States ◽  
Twentieth Century ◽  
Black People ◽  
Political Power ◽  
The United States ◽  
Political Freedom ◽  
The Political ◽  
The Relationship ◽  
As If

Lewis R. Gordon argues that Wright’s writings cast light on the suffocating world produced by colonialism, enslavement, and racism, in which black people are treated as if they simply don’t matter. Wright showed that blacks in the United States are fundamentally historically excluded from the political, aesthetic, and epistemic institutions of the only world to which they are indigenous. By pulling readers into places “they wished never to go,” he demonstrated how the erosion of black political power in fact increased political impotence among humankind. Wright, argues Gordon, was particularly prescient about the relationship between the racist state and twentieth-century fascism. They jointly eradicate conditions of political appearance and freedom, replacing them with unilateral rule.

Intelligence Communities and International Law

2018 ◽  
Author(s):  
Ashley S. Deeks
Keyword(s):  
United States ◽  
United Kingdom ◽  
National Security ◽  
International Law ◽  
The United States ◽  
The United Kingdom

The lack of certainty about the precise status of various intelligence activities in international law fosters conditions under which states can choose—and have chosen—different paths through the thicket. This chapter compares how certain states’ intelligence communities (ICs) approach their international law obligations. The United Kingdom asserts that its IC’s activities comply with international law. The United States, in contrast, implies that certain IC actions may violate international law, though it avoids specific public statements about such deviations. This chapter identifies and analyzes the problems and benefits posed by the competing approaches and offers lessons about the capacity of international law to constrain core national security activities.

The Fourth Restatement, International Law, and the “Terrorism” Exception to the Foreign Sovereign Immunities Act

2020 ◽  
pp. 391-410
Author(s):  
Beth Stephens
Keyword(s):  
United States ◽  
Human Rights ◽  
International Law ◽  
Foreign Relations ◽  
The United States ◽  
Executive Branch ◽  
Human Rights Violations ◽  
Sovereign Immunity ◽  
The Law ◽  
The U.S

This chapter evaluates the “terrorism” exception to the Foreign Sovereign Immunities Act (FSIA). The Fourth Restatement of Foreign Relations Law of the United States sets out to “restate” the law of the United States and “relevant portions of international law,” not to critique U.S. law or settle debates about the content of international law. However, that task is complicated when the law of the United States triggers questions about unresolved international law issues. The “terrorism” exception to the FSIA illustrates this complexity. Congress, the executive branch, and the judiciary have employed the exception as a politically motivated weapon to target disfavored states, while excluding U.S. allies, politically powerful states, and the United States itself from the reach of the statute. The text of the Fourth Restatement merely restates the U.S. law governing the “terrorism” exception, without identifying international law concerns or analyzing the issues they raise. The chapter, by contrast, offers a critique of the “terrorism” exception, focusing on the statute as written, as amended to reach particular targets, and as applied in practice. A well-crafted statutory exception to sovereign immunity for state human rights violations would be a welcome addition to human rights accountability. The “terrorism” exception falls far short of that goal.

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