Judicial Deference in Foreign Relations

1989 ◽  
Vol 83 (4) ◽  
pp. 805-813 ◽  
Author(s):  
Jonathan I. Charney
Keyword(s):  
United States ◽  
Foreign Policy ◽  
Rule Of Law ◽  
Foreign Relations ◽  
The United States ◽  
Federal Courts ◽  
Policy Implications ◽  
The Political ◽  
The Rule Of Law ◽  
The Law

Disputes with foreign policy implications have often been brought to the federal courts. These cases call attention to the tension between the authority of the political branches to conduct the foreign relations of the United States and the authority of the courts to render judgments according to the law. How this tension is resolved, in turn, bears directly on the commitment of the United States to the rule of law.

Compromising Justice: Why the Bush Administration and the NGOs Are Both Wrong about the ICC

2006 ◽  
Vol 20 (1) ◽  
pp. 25-53 ◽  
Author(s):  
Kenneth A. Rodman
Keyword(s):  
United States ◽  
Rule Of Law ◽  
Armed Conflict ◽  
Rome Statute ◽  
Due Process ◽  
Bush Administration ◽  
The United States ◽  
The Political ◽  
The Rule Of Law ◽  
Legal Proceedings

The critics of the ICC in the Bush administration and its supporters within the human rights community have one thing in common: they assume that the ICC can evolve into a powerful institution independent of states, either to constrain American power or to act on a duty to prosecute to end impunity for perpetrators. Both overestimate the ability of the court to pursue a legalism divorced from power realities. The former attribute to the court powers it is unlikely to exercise, particularly if the United States remains outside the treaty. This is due, in part, to the safeguards within the Rome Statute, but more importantly, to the court's dependence on sovereign cooperation, which will lead it to place a high premium on cultivating the good will of the most powerful states. The latter overestimate the degree to which courts by themselves can deter atrocities. The ICC's effectiveness in any particular case will therefore be dependent on the political consensus of those actors capable of wielding power in that area. They also underestimate the need to compromise justice – at least, prosecutorial justice – in cases in which bargaining and compromise are the central means of facilitating transitions from armed conflict or dictatorship, and in cases in which the strength of the perpetrators and the limits of one's power would make legal proceedings either futile or counterproductive to other interests and values. Hence, decisions to prosecute must first be subjected to a test of political prudence, and then take place according to due process and the rule of law.

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.

A Tale of Two Leaders: German Methodists and the Nazi State

2001 ◽  
Vol 70 (2) ◽  
pp. 199-225
Author(s):  
Roland Blaich
Keyword(s):  
United States ◽  
Foreign Policy ◽  
Foreign Relations ◽  
The United States ◽  
German Society ◽  
The Political ◽  
Nazi Regime ◽  
Confessing Church ◽  
The Government ◽  
German People

Nazi foreign policy was hampered from the start by a hostile foreign press that carried alarming reports, not only of atrocities and persecution of the political opposition and of Jews, but also of a persecution of Christians in Germany. Protestant Christians abroad were increasingly outraged by the so-called “German Christians” who, with the support of the government, gained control of the administration of the Evangelical state churches and set about to fashion a centralized Nazi church based on principles of race, blood, and soil. The militant attack by “German Christians” on Christian, as opposed to Germanic, traditions and values led to the birth of a Confessing Church, whose leaders fought to remain true to the Gospel, often at the risk of imprisonment. Such persecution resulted in calls from abroad for boycott and intervention, particularly in Britain and the United States, and threatened to complicate foreign relations for the Nazi regime at a time when Hitler was still highly vulnerable. In order to win the support of the German people and to consolidate the Nazi grip on German society, Hitler needed accomplishments in foreign policy and solutions to the German economic crisis. Both were possible only with the indulgence of foreign powers.

scholarly journals Effects of the Core Functions of Government on the Diversity of Executive Agendas

2011 ◽  
Vol 44 (8) ◽  
pp. 1001-1030 ◽  
Author(s):  
Will Jennings ◽  
Shaun Bevan ◽  
Arco Timmermans ◽  
Gerard Breeman ◽  
Sylvain Brouard ◽  
...  
Keyword(s):  
United States ◽  
Rule Of Law ◽  
The United States ◽  
Political Agenda ◽  
The Political ◽  
Postwar Period ◽  
International Affairs ◽  
The Rule Of Law ◽  
The Core ◽  
Core Issues

The distribution of attention across issues is of fundamental importance to the political agenda and outputs of government. This article presents an issue-based theory of the diversity of governing agendas where the core functions of government—defense, international affairs, the economy, government operations, and the rule of law—are prioritized ahead of all other issues. It undertakes comparative analysis of issue diversity of the executive agenda of several European countries and the United States over the postwar period. The results offer strong evidence of the limiting effect of core issues—the economy, government operations, defense, and international affairs—on agenda diversity. This suggests not only that some issues receive more attention than others but also that some issues are attended to only at times when the agenda is more diverse. When core functions of government are high on the agenda, executives pursue a less diverse agenda—focusing the majority of their attention on fewer issues. Some issues are more equal than others in executive agenda setting.

Global Petro-Politics: The Foreign Policy Implications of the Bush Administration's Energy Plan

2002 ◽  
Vol 101 (653) ◽  
pp. 99-104 ◽  
Author(s):  
Michael T. Klare
Keyword(s):  
United States ◽  
Foreign Policy ◽  
The United States ◽  
Policy Implications ◽  
The Political ◽  
Military Action ◽  
Political Economic

The United States cannot increase its intake of foreign oil by 50 percent, as called for under the Bush energy plan, without involving itself in the political, economic, and military affairs of the states from which all this petroleum is expected to flow. This involvement may take financial and diplomatic forms in most cases, but it will also often entail military action.

Walter Clemens: Foreign Policy Implications of Nationality Unrest

1990 ◽  
Vol 18 (1) ◽  
pp. 21-23
Keyword(s):  
United States ◽  
Foreign Policy ◽  
Foreign Relations ◽  
The United States ◽  
Policy Implications ◽  
Domestic Policy ◽  
Western Countries

My topic is foreign relations. I would like to look at the implications of the nationality problem for Moscow, for some of the union republics, for the United States, and for other Western countries. It is always difficult to draw a line between foreign policy and domestic policy, but, when one considers the implications of the nationality problem for foreign policy, it becomes especially hard to pull them apart.

American Cultural Pluralism and Law: An Innovative Interdisciplinary Course

1990 ◽  
Vol 3 (2) ◽  
pp. 13-15
Author(s):  
Serena Nanda ◽  
Jill Norgren
Keyword(s):  
United States ◽  
Rule Of Law ◽  
The United States ◽  
Cultural Pluralism ◽  
Political Scientist ◽  
Individual Liberty ◽  
The Rule Of Law ◽  
Cultural Anthropologist ◽  
The Law ◽  
American Society

During the 1987 Iran/Contra hearings, Senator George J. Mitchell of Maine spoke eloquently about the importance of the rule of law in a culturally pluralistic nation like the United States:Most nations derive from a single tribe or a single race. They practice a single religion. Common racial, ethnic, and religious heritages are the glue of nationhood for many.The United States is different. We have all races, all religions, a limited common heritage. The glue of nationhood for us is the American ideal of individual liberty and equal justice.The rule of law is critical in our society. The law is the great equalizer, because everybody in America is equal before the law.The students we teach live in what is certainly one of the most culturally pluralistic cities, and nations, in the world. They are increasingly part of a society in which this pluralism affects them either as members of cultural minorities, or as members of the so-called dominant culture who interact with many different cultural groups. As a cultural anthropologist and a political scientist teaching in a college with a focus on law and justice, we felt it important to bring to our students a deeper understanding of the possibilities and problems of cultural pluralism in a democratic, constitutional society. While Senator Mitchell's words surely express a fundamental ideal in American society, how closely these words express the reality experienced in American society is a question that had long interested us.

scholarly journals Chinese Foreign Relations Law

AJIL Unbound ◽  
2017 ◽  
Vol 111 ◽  
pp. 336-340
Author(s):  
Congyan Cai
Keyword(s):  
United States ◽  
Faculty Member ◽  
International Law ◽  
Rule Of Law ◽  
Foreign Relations ◽  
The United States ◽  
Private International Law ◽  
Main Argument ◽  
Academic Field ◽  
The Rule Of Law

Curtis Bradley has observed that, apart from in the United States, foreign relations law generally has not been treated as a separate academic field, but that this situation is starting to change. This observation can also find evidence in China. In March 2016, I hosted a conference on “Chinese Foreign Relations Law: A New Agenda” at Xiamen University School of Law, where I am a faculty member. This is the first conference engaging with this field in China. Also in 2016, a Chinese professor of private international law published the first article discussing Chinese foreign relations law in a general way, the main argument of which is that foreign relations law should be a component of the “rule of law” in China.

Palace Intrigue: Missiles, Treason, and the Rule of Law in Bolivia

2009 ◽  
Vol 7 (2) ◽  
pp. 351-356
Author(s):  
John M. Carey
Keyword(s):  
United States ◽  
Supreme Court ◽  
Rule Of Law ◽  
The United States ◽  
Political Crisis ◽  
The Political ◽  
Full Disclosure ◽  
The Rule Of Law ◽  
The Moment ◽  
The U.S

The Bolivian presidency is a precarious position, not only because so many presidents have left office under duress, but because former presidents are subject to legal jeopardy. The case of Eduardo Rodríguez Veltzé illustrates the weakness of the rule of law in Bolivia and the political motivations that sustain it. Rodríguez was a respected Chief Justice of Bolivia's Supreme Court. He reluctantly assumed the presidency during a political crisis and shepherded the country through peaceful elections in 2005 that brought Evo Morales to the presidency. He was subsequently charged with treason in a case that involved the transfer from the Bolivian military to the United States of some obsolete surface-to-air missiles. The Rodríguez case was politically important enough to be useful for the Morales Government, but only briefly, and the moment passed. Now, the case's obscurity and the fecklessness of the Bolivian courts have left Rodríguez in legal and professional limbo. Full disclosure from the U.S. government regarding its involvement in the missiles case might clear Rodríguez's name.

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