Abstract Over the last three decades, international lawyers and institutions have come to understand constitution-making as an accepted technique of international law and a means of delivering peace and security. In defending this technique from its critics, scholars have drawn on a particular tradition of constitution-making that understands constitutionalism as a lawful form of international action, realizable through a set of formal practices, and juridically distinct from material concerns. This Article explores the building of this tradition through the work of legal scholars within the United States in conversation with German and Jewish émigré scholars and argues that reimagining constitutionalism for the coming decades requires rethinking this separation between the juridical and the material, as well as asking what constitutionalism demands of the laws governing the global economy.
{"title":"Constitution-Making as a Technique of International Law: Reconsidering the Post-war Inheritance","authors":"A. Saunders","doi":"10.1017/ajil.2022.86","DOIUrl":"https://doi.org/10.1017/ajil.2022.86","url":null,"abstract":"Abstract Over the last three decades, international lawyers and institutions have come to understand constitution-making as an accepted technique of international law and a means of delivering peace and security. In defending this technique from its critics, scholars have drawn on a particular tradition of constitution-making that understands constitutionalism as a lawful form of international action, realizable through a set of formal practices, and juridically distinct from material concerns. This Article explores the building of this tradition through the work of legal scholars within the United States in conversation with German and Jewish émigré scholars and argues that reimagining constitutionalism for the coming decades requires rethinking this separation between the juridical and the material, as well as asking what constitutionalism demands of the laws governing the global economy.","PeriodicalId":47841,"journal":{"name":"American Journal of International Law","volume":null,"pages":null},"PeriodicalIF":4.3,"publicationDate":"2023-02-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41543928","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The United States Announces Export Controls to Restrict China's Ability to Purchase and Manufacture High-End Chips","authors":"","doi":"10.1017/ajil.2022.89","DOIUrl":"https://doi.org/10.1017/ajil.2022.89","url":null,"abstract":"","PeriodicalId":47841,"journal":{"name":"American Journal of International Law","volume":null,"pages":null},"PeriodicalIF":4.3,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43192066","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Disastrous Law: International Law and the Shock-absorption of Disaster","authors":"Fleur Johns","doi":"10.1017/ajil.2022.79","DOIUrl":"https://doi.org/10.1017/ajil.2022.79","url":null,"abstract":"","PeriodicalId":47841,"journal":{"name":"American Journal of International Law","volume":null,"pages":null},"PeriodicalIF":4.3,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45414404","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
At the international level, getting into an armed conflict is clearly easier than getting out of one. Resolving the underlying issues that led to the conflict in the first place—and that have likely been exacerbated during the fighting— almost always proves profoundly difficult. While those issues are unlikely to be primarily “legal” in nature, international law and international lawyers should and do play important roles both in crafting interim arrangements to bring the fighting to an end and in establishing the conditions for a sustainable peace between the contesting parties. Against the backdrop of the continuing conflict in Ukraine (among other crises), it is worth asking what law, if any, applies to such efforts, whether there are any clear legal requirements or parameters for such agreements, and what the lawyers involved in the negotiations need to focus on. These are not new questions, of course, and since each conflict has its own unique origins, contours, and context, it is unrealistic to expect simple (much less uniform) answers. The two volumes under review address the issues from differing perspectives and offer practical insights into how international lawyers can play positive roles in constructing a durable post-conflict peace. In so doing they also illuminate doctrinal debates over recent developments in the evolution of international law.
{"title":"Lex Pacificatoria, Jus Post Bellum, or Just “Good Practice”?","authors":"D. P. Stewart","doi":"10.1017/ajil.2022.78","DOIUrl":"https://doi.org/10.1017/ajil.2022.78","url":null,"abstract":"At the international level, getting into an armed conflict is clearly easier than getting out of one. Resolving the underlying issues that led to the conflict in the first place—and that have likely been exacerbated during the fighting— almost always proves profoundly difficult. While those issues are unlikely to be primarily “legal” in nature, international law and international lawyers should and do play important roles both in crafting interim arrangements to bring the fighting to an end and in establishing the conditions for a sustainable peace between the contesting parties. Against the backdrop of the continuing conflict in Ukraine (among other crises), it is worth asking what law, if any, applies to such efforts, whether there are any clear legal requirements or parameters for such agreements, and what the lawyers involved in the negotiations need to focus on. These are not new questions, of course, and since each conflict has its own unique origins, contours, and context, it is unrealistic to expect simple (much less uniform) answers. The two volumes under review address the issues from differing perspectives and offer practical insights into how international lawyers can play positive roles in constructing a durable post-conflict peace. In so doing they also illuminate doctrinal debates over recent developments in the evolution of international law.","PeriodicalId":47841,"journal":{"name":"American Journal of International Law","volume":null,"pages":null},"PeriodicalIF":4.3,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42205369","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
does the reader understand how these case studies fit into a larger sweep of international law and corporate impunity. The distillation of Veiled Power’s argument offered in this review is clearer than that found in the book itself, and much of this review extrapolates by noting that the analysis “implies,” since Lustig too often stays at the level of description and her own interests. Indeed the book’s introduction and conclusion are missed opportunities to situate this study into the larger conversation, and to draw out more fully the author’s firm belief that the choices of legal decisionmakers, more than hard law itself, sustain the corporate veil. One can tell that this book does not fully encapsulate the author’s thoughts on the topic. What is most missing, and perhaps something for a sequel, is the why of the choices Lustig so carefully describes. By itself, studying what legal decisionmakers did and did not do will never reveal why certain choices prevailed. We could have a greater sense of what decisionmakers worried about when they chose the specific path. We could have a greater sense of the lawmaker’s decision to not articulate corporate responsibilities. We could have a greater sense of how the background of judges and lawyers perhaps creates interpretive predilections. Yet the overwhelming contribution of this book is to make it very clear that there were choices and moments when a braver approach to corporate responsibility was possible but eschewed.
{"title":"Humane: How the United States Abandoned Peace and Reinvented War. By Samuel Moyn. New York: Farrar, Straus and Giroux, 2021. Pp. 416.","authors":"D. Kaye","doi":"10.1017/ajil.2022.76","DOIUrl":"https://doi.org/10.1017/ajil.2022.76","url":null,"abstract":"does the reader understand how these case studies fit into a larger sweep of international law and corporate impunity. The distillation of Veiled Power’s argument offered in this review is clearer than that found in the book itself, and much of this review extrapolates by noting that the analysis “implies,” since Lustig too often stays at the level of description and her own interests. Indeed the book’s introduction and conclusion are missed opportunities to situate this study into the larger conversation, and to draw out more fully the author’s firm belief that the choices of legal decisionmakers, more than hard law itself, sustain the corporate veil. One can tell that this book does not fully encapsulate the author’s thoughts on the topic. What is most missing, and perhaps something for a sequel, is the why of the choices Lustig so carefully describes. By itself, studying what legal decisionmakers did and did not do will never reveal why certain choices prevailed. We could have a greater sense of what decisionmakers worried about when they chose the specific path. We could have a greater sense of the lawmaker’s decision to not articulate corporate responsibilities. We could have a greater sense of how the background of judges and lawyers perhaps creates interpretive predilections. Yet the overwhelming contribution of this book is to make it very clear that there were choices and moments when a braver approach to corporate responsibility was possible but eschewed.","PeriodicalId":47841,"journal":{"name":"American Journal of International Law","volume":null,"pages":null},"PeriodicalIF":4.3,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46300749","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Identity and Diversity on the International Bench: Who Is the Judge? By Freya Baetens. Oxford, UK: Oxford University Press, 2020. Pp. vi, 565. Index.","authors":"Ksenia Polonskaya","doi":"10.1017/ajil.2022.77","DOIUrl":"https://doi.org/10.1017/ajil.2022.77","url":null,"abstract":"","PeriodicalId":47841,"journal":{"name":"American Journal of International Law","volume":null,"pages":null},"PeriodicalIF":4.3,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42923312","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The World Trade Organization is at an important institutional crossroads, buffeted by critique and with its once-heralded dispute system in doubt. Despite some achievements at the 2022 MC12 Ministerial Conference, the WTO appears in crisis, without a strong institutional mandate. In this Article, we offer a vision for its future, rooted in a particular interpretation of its past. The WTO's legal architecture is characterized by a resilient pluralism, which seeks to preserve diversity of governance models and regulatory approaches, both economic and political, in the domestic orders of member states. Despite strong pressures to impose a neoliberal vision of the state-market relationship on states, this pluralism has persevered; it offers a response to the WTO's critics and a mandate for the WTO's future.
{"title":"Continuity and Change in the World Trade Organization: Pluralism Past, Present, and Future","authors":"R. Howse, Joanna Langille","doi":"10.1017/ajil.2022.82","DOIUrl":"https://doi.org/10.1017/ajil.2022.82","url":null,"abstract":"Abstract The World Trade Organization is at an important institutional crossroads, buffeted by critique and with its once-heralded dispute system in doubt. Despite some achievements at the 2022 MC12 Ministerial Conference, the WTO appears in crisis, without a strong institutional mandate. In this Article, we offer a vision for its future, rooted in a particular interpretation of its past. The WTO's legal architecture is characterized by a resilient pluralism, which seeks to preserve diversity of governance models and regulatory approaches, both economic and political, in the domestic orders of member states. Despite strong pressures to impose a neoliberal vision of the state-market relationship on states, this pluralism has persevered; it offers a response to the WTO's critics and a mandate for the WTO's future.","PeriodicalId":47841,"journal":{"name":"American Journal of International Law","volume":null,"pages":null},"PeriodicalIF":4.3,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49156847","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The United States Establishes Fund for the Afghan People from Frozen Afghan Central Bank Assets","authors":"","doi":"10.1017/ajil.2022.87","DOIUrl":"https://doi.org/10.1017/ajil.2022.87","url":null,"abstract":"","PeriodicalId":47841,"journal":{"name":"American Journal of International Law","volume":null,"pages":null},"PeriodicalIF":4.3,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46964694","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The International Law Commission (ILC) held its seventy-third session from April 18 to June 3 and from July 4 to August 5, 2022 in Geneva, under the chairmanship of Dire Tladi (South Africa). This session was the final one of the quinquennium, which originally would have occurred in the summer of 2021. (Since the Commission did not meet in the summer of 2020 due to the outbreak of the COVID-19 pandemic, the 2020 and 2021 sessions were postponed to 2021 and 2022 respectively.) Although the pandemic continued in 2022, the members faced fewer health risks and travel difficulties; consequently, the Commission held its session with almost all members physically present in Geneva, and just a few occasionally participating online by means of Zoom.
{"title":"Peremptory Norms of General International Law (Jus Cogens) (Revisited) and Other Topics: The Seventy-Third Session of the International Law Commission","authors":"S. Murphy","doi":"10.1017/ajil.2022.80","DOIUrl":"https://doi.org/10.1017/ajil.2022.80","url":null,"abstract":"The International Law Commission (ILC) held its seventy-third session from April 18 to June 3 and from July 4 to August 5, 2022 in Geneva, under the chairmanship of Dire Tladi (South Africa). This session was the final one of the quinquennium, which originally would have occurred in the summer of 2021. (Since the Commission did not meet in the summer of 2020 due to the outbreak of the COVID-19 pandemic, the 2020 and 2021 sessions were postponed to 2021 and 2022 respectively.) Although the pandemic continued in 2022, the members faced fewer health risks and travel difficulties; consequently, the Commission held its session with almost all members physically present in Geneva, and just a few occasionally participating online by means of Zoom.","PeriodicalId":47841,"journal":{"name":"American Journal of International Law","volume":null,"pages":null},"PeriodicalIF":4.3,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43053214","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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