Over the past few months, the blockage of the Appellate Body appointment process by the United State (hereinafter U.S.) has emerged as the biggest existential threat to the World Trade Organization (hereinafter WTO). In response to the criticisms from other WTO Members, the U.S. justified its action as a way to raise people’s attention on long-standing problems in the Appellate Body (hereinafter AB). Are the U.S. criticisms valid? Even if assuming that the U.S. allegations are correct, is the specific approach that the U.S. has taken legitimate? Drawing from both the treaty text and jurisprudence of WTO law, this Chapter argues that the U.S. criticisms, especially those concerning the systemic issues in WTO dispute settlement, are deeply flawed. Moreover, the paper also argues that, regardless of the validity of the substantive claims of the U.S., the U.S. has chosen the wrong approach by holding hostage the entire AB appointment process. The paper concludes with practical suggestions on how to overcome the AB crisis and restore its functions.
Saturday, July 27, 2019
The rule of law is one of the yardsticks by which both critics of and apologists for international investment law evaluate the regime, but it has been thus far insufficiently theorised. This paper offers some thoughts on how the concept of the rule of law might be deployed to justify and delimit the contours of legitimate expectations in international investment law. The paper deliberately adopts a formal, largely Razian approach to the rule of law, focusing on two of its dimensions: legal certainty and the prohibition on arbitrariness. It argues that legal certainty provides the most compelling justification for the recognition of legitimate expectations in international investment law, when compared to other rationales emerging from investment tribunals and the literature. The paper analyses four common types of government action at issue in investment cases through the lens of legal certainty, arguing that the strength of the claim for recognition of legitimate expectations depends on the government conduct at issue, with government interference with legal rights or formal decisions generating the strongest claim for protection, and changes to the extant legal framework generating the weakest claim. The paper then identifies the prohibition on arbitrary conduct as the touchstone for protection of legitimate expectations, explains how these two elements of the legal test fit together, and suggests that this interpretation accords with evolving state practice in treaty design, and more recent tribunal decisions concerning legitimate expectations.
- Special Issue: Exploring Global and Transnational Governance of Climate Change Adaptation
- Åsa Persson & Adis Dzebo, Special issue: Exploring global and transnational governance of climate change adaptation
- Magnus Benzie & Åsa Persson, Governing borderless climate risks: moving beyond the territorial framing of adaptation
- Matteo Roggero, Leonhard Kähler, & Achim Hagen, Strategic cooperation for transnational adaptation: lessons from the economics of climate change mitigation
- Maria Antonia Tigre, Building a regional adaptation strategy for Amazon countries
- Sander Chan & Wanja Amling, Does orchestration in the Global Climate Action Agenda effectively prioritize and mobilize transnational climate adaptation action?
- Adis Dzebo, Effective governance of transnational adaptation initiatives
- Marielle Papin, Transnational municipal networks: Harbingers of innovation for global adaptation governance?
- Dire Tladi, An institutional framework for addressing marine genetic resources under the proposed treaty for marine biodiversity in areas beyond national jurisdiction
- Manish Kumar Shrivastava & Saradindu Bhaduri, Market-based mechanism and ‘climate justice’: reframing the debate for a way forward
- Kristin Rosendal, Jon Birger Skjærseth, & Steinar Andresen, Knowledge-based management of protected areas and hydropower: the case of Norway
Dreyfuss: Protecting Fundamental Values in International IP Disputes: Investor-State vs. WTO Adjudication
This article, written for a conference on improving investor-state dispute settlement (ISDS), compares the resolution of investor-state disputes under bilateral investment treaties and free trade agreements with investment chapters, with state-state dispute settlement under the World Trade Organizations’ Dispute Settlement Understanding. It demonstrates that across five dimensions, (1) the framing of disputes; (2) the incentives of disputants; (3) the interests of the relevant institutions; (4) the structure and impact of the awards; and (5) the leverage associated with the procedures, ISDS is far more intrusive on regulatory authority than WTO dispute resolution. The article ends with suggestions for making ISDS more responsive to sovereign interests.
From the 'show' trials of the 1920s and 1930s to the London Conference, this book examines the Soviet role in the Nuremberg IMT trial through the prism of the ideas and practices of earlier Soviet legal history, detailing the evolution of Stalin's ideas about the trail of Nazi war criminals.
Stalin believed that an international trial for Nazi war criminals was the best way to show the world the sacrifices his country had made to defeat Hitler, and he, together with his legal mouthpiece Andrei Vyshinsky, maintained tight control over Soviet representatives during talks leading up to the creation of the Nuremberg IMT trial in 1945, and the trial itself. But Soviet prosecutors at Nuremberg were unable to deal comfortably with the complexities of an open, western-style legal proceeding, which undercut their effectiveness throughout the trial. However, they were able to present a significant body of evidence that underscored the brutal nature of Hitler's racial war in Russia from 1941-45, a theme which became central to Stalin's efforts to redefine international criminal law after the war.
Stalin's Soviet Justice provides a nuanced analysis of the Soviet justice system at a crucial turning point in European history and it will be vital reading for scholars and advanced students of the legal history of the Soviet Union, the history of war crimes and the aftermath of the Second World War.
The Editorial Board of the Cambridge International Law Journal (CILJ) is pleased to invite submissions for its ninth volume (issues to be published in June and December 2020). The Board welcomes long articles, short articles, case notes and book reviews that engage with current themes in international law. All submissions are subject to double-blind peer review by the Journal's Editorial Board. In addition, all long articles are sent to the Academic Review Board, which consists of distinguished international law scholars and practitioners. Submissions can be made at any time. Articles submitted by 30 September 2019 will be considered for Volume 9 Issue 1. Any articles submitted after this date will be considered for the following issues.
For full submission instructions, please visit the journal's website.
Submissions can be made for Volume 9 at this link.
Alternatively, blog articles can be submitted via this link.
Further information can be obtained from the Editors-in-Chief at email@example.com.
It is often assumed that the independence of a criminal court is synonymous to the impartiality of judges. However, discussions around the independence of the International Criminal Court are in most cases about the Court as an institution and on the work of the Office of the Prosecutor. The Independence of the International Criminal Court: Between a Rock and a Hard Place focuses on understanding the different competing narratives defending and critiquing the Court’s ‘institutional’ independence and legitimacy, especially in its relationship with Africa. Critical Discourse Analysis technics are used to capture the way language is used to express collective power capable of influencing the policies of the Court.
This book provides a comprehensive account of how child development and the right to development of children have been understood in international children's rights law. It argues that any conceptions of childhood focussed either on children's future as adults, or on children's lives in the present, overlook the hybridity of children's lived experiences. The book therefore suggests a new conception of childhood - namely, 'hybrid childhood' - which accommodates respect for children's agency and human dignity in the present, in the process of growth, and in the outcomes of this process when the child becomes an adult. Consequently, and building on the capability approach's idea of human development, the book presents a radical new interpretation of the child's right to development under the UN Convention on the Rights of the Child. It offers a comprehensive interpretation of the right to development, which is one of the four guiding principles of the Convention.
Friday, July 26, 2019
Stephen & Zürn: Contested World Orders: Rising Powers, Non-Governmental Organizations, and the Politics of Authority Beyond the Nation-State
World orders are increasingly contested. As international institutions have taken on ever more ambitious tasks, they have been challenged by rising powers dissatisfied with existing institutional inequalities, by non-governmental organizations worried about the direction of global governance, and even by some established powers no longer content to lead the institutions they themselves created. For the first time, this volume examines these sources of contestation under a common and systematic institutionalist framework. While the authority of institutions has deepened, at the same time it has fuelled contestation and resistance.
In a series of rigorous and empirically revealing chapters, the authors of Contested World Orders examine systematically the demands of key actors in the contestation of international institutions. Ranging in scope from the World Trade Organization and the Nuclear Non-proliferation Regime to the Kimberley Process on conflict diamonds and the climate finance provisions of the UNFCCC, the chapters deploy a variety of methods to reveal just to what extent, and along which lines of conflict, rising powers and NGOs contest international institutions. Contested World Orders seeks answers to the key questions of our time: Exactly how deeply are international institutions contested? Which actors seek the most fundamental changes? Which aspects of international institutions have generated the most transnational conflicts? And what does this mean for the future of world order?
- JHHW, Editor-in-Chief Sarah M. H. Nouwen; Best Practice – Writing a Peer-Review Report; In this Issue
- Michal Ovádek & Ines Willemyns, International Law of Customs Unions: Conceptual Variety, Legal Ambiguity and Diverse Practice
- Miles Jackson, State Instigation in International Law: A General Principle Transposed
- Paolo Amorosa, Pioneering International Women’s Rights? The US National Woman’s Party and the 1933 Montevideo Equal Rights Treaties
- ‘Hospital Shields’ and International Humanitarian Law – An Exchange
- Neve Gordon & Nicola Perugini, ‘Hospital Shields‘ and the Limits of International Law
- Yishai Beer, Save the Injured – Don’t Kill IHL: Rejecting Absolute Immunity for ‘Shielding Hospitals’
- Those who Teach and Those who Learn: International Law as an Academic Discipline
- Ryan Scoville & Mark Berlin, Who Studies International Law? Explaining Cross-national Variation in Compulsory International Legal Education
- Sondre Torp Helmersen, Finding ‘the Most Highly Qualified Publicists’: Lessons from the International Court of Justice
- Roaming Charges: Do Not Discard
- Symposium: International Law and Economic Exploitation in the Global Commons
- Isabel Feichtner & Surabhi Ranganathan, International Law and Economic Exploitation in the Global Commons: Introduction
- Matt Craven, ‘Other Spaces’: Constructing the Legal Architecture of a Cold War Commons and the Scientific-Technical Imaginary of Outer Space
- Surabhi Ranganathan, Ocean Floor Grab: International Law and the Making of an Extractive Imaginary
- Isabel Feichtner, Sharing the Riches of the Sea: The Redistributive and Fiscal Dimension of Deep Seabed Exploitation
- Karin Mickelson, Common Heritage of Mankind as a Limit to Exploitation of the Global Commons
- Critical Review of Jurisprudence
- Cosette D. Creamer & Zuzanna Godzimirska, Trust in the Court: The Role of the Registry of the European Court of Human Rights
- Book Reviews
- Martins Paparinskis, reviewing Charles T. Kotuby Jr & Luke A. Sobota, General Principles of Law and International Due Process: Principles and Norms Applicable in Transnational Disputes
- Ole Kristian Fauchald, reviewing Mihir Kanade, The Multilateral Trading System and Human Rights: A Governance Space Theory on Linkages
- Volker Roeben, reviewing Mathias Forteau & Jean-Marc Thouvenin eds., Traité de droit international de la mer
- The Last Page
- Friedrich Schiller, An die Freude/Hymn to Joy
Thursday, July 25, 2019
Kanetake: The EU’s Dual-Use Export Control and Human Rights Risks: The Case of Cyber Surveillance Technology
Export of cyber technology can undermine human rights in countries of destination. In the aftermath of the Arab Spring, political controversies have arisen around EU-exported cyber surveillance technology, which allegedly helped autocratic states monitor and arrest dissidents. While cyber technology is indispensable to our lives, it can be used to suppress the right to privacy, the freedom of expression and the freedom of association, not only in the EU, but also in the countries it trades with. The EU has taken a proactive role in reforming the export of human rights-sensitive cyber technology. In September 2016 the European Commission proposed the integration of human rights due diligence in the process of export control. The Commission’s proposal, however, invited strong contestations both from industry and Member States. Essentially, dual-use export control has developed in order to mitigate military risks. Attempts to integrate human rights risks in export control have thus invited discomfort among stakeholders. This paper unpacks normative tensions arising from the EU’s attempts to integrate human rights risks in its export control regimes. By so doing, the paper highlights fundamental tensions embedded in the EU’s value-based Common Commercial Policy, of which dual-use export control forms an integral part.
CALL FOR PAPERS
The German Yearbook of International Law (GYIL) is Germany’s oldest yearbook in the field of public international law. The GYIL is published annually by the Walther Schücking Institute for International Law at the University of Kiel and contains contributions on topics addressing all aspects of public international law. We aim to provide a platform for scholars of international law – both inside and outside Germany – to publish new research advancing public international legal discourse as well as analysis of current issues. The GYIL consists of a number of sections, including a ‘Forum’ section for which prominent scholars are invited to discuss newly developing topics in international law and a ‘Focus’ section for which a group of experts are invited to write articles examining in-depth various aspects of a topic chosen in advance by the Editors. The ‘German Practice’ section gives authors an opportunity to discuss recent State practice in Germany relevant to international law. This section presents shorter reports rather than extended essays. The GYIL also publishes English-language summaries of exceptional German doctoral and post-doctoral theses in the fields of public international law and European law.
The General Articles section of the GYIL is open to submissions from the entire academic community and is independently peer-reviewed by a board of renowned experts. All work submitted will be scrutinised based on its intellectual quality and its advancement of academic discourse. With this Call for Papers, the Editors welcome submissions for the General Articles section of volume 62 (2019) of the GYIL, inviting interested parties to submit contributions for consideration for inclusion in the forthcoming edition.
The paper should be 10,000-12,500 words inclusive of footnotes and conform with the house style of the GYIL (available on our website). Submissions, including a brief abstract, statement of affiliation, and confirmation of exclusive submission, should be sent by 1 September 2019 to the Assistant Editors of the GYIL via e-mail: firstname.lastname@example.org.
That armed groups have been responsible for attacks against health care personnel and for violating the protection of health care is not news. This is one of the greatest humanitarian challenges of contemporary armed conflict. Armed groups, however, have also attempted to evacuate and treat wounded enemy fighters and civilians and, in certain contexts, they have even provided health care services for the civilian population living in the territories under their control. This article describes some of the key issues related to the variation of armed groups’ behaviors when dealing with the protection of health care, inquiring into why some groups have attacked health care facilities, personnel, and transports, while others have taken positive steps to ensure their protection and the provision of health care. The last part of this article introduces the approach undertaken by Geneva Call when engaging these non-State actors and discusses its new Deed of Commitment on the Protection of Health Care in Armed Conflict.
- Giuliana Ziccardi Capaldo, The Taricco Affair: A Dialogue Between the Deaf and the Dumb. A Proposal to Strengthen Cooperation Between the ECJ and National Courts
- Michael Bohlander,."External Stakeholder Benevolence": An Emerging Paradigm in International Criminal Justice? - Critical Reflections on the Paris Declaration 2017 and the Oslo Recommendations 2018 on the Efficiency and Legitimacy of International Courts
- Ernst-Ulrich Petersmann, How to Reconcile Human Rights, Trade Law, Intellectual Property, Investment and Health Law? WTO Dispute Settlement Panel Upholds Australia's Plain Packaging Regulations of Tobacco Products
- Chris Thornhill, The Citizen and the State: A Paradoxical Relation
- Notes and Comments
- Jean d'Aspremont, Statehood and Recognition in International Law: A Post-Colonial Invention
- Jacques Hartmann, Misdiagnosing the Human Rights Malaise: Possible Lessons from the Danish Chairmanship of the Council of Europe
- Robert Kolb, Article 103 of the UN Charter and Security Council Authorizations
- Francesco Seatzu, Under Construction: the Euro-Mediterranean Free Trade Area (EMFTA)
- In Focus: Global Policies and Law
- Louis René Beres, Demilitarizing Palestine. A Flawed Legal Approach To Middle East Peace
- Anja Matwijkiw & Bronik Matwijkiw, Illiberal versus Liberal State Branding and Public International Law: Denmark and the Approximation to Human(itarian) Rightlessness
- Oreste Pollicino & Giovanni De Gregorio, A Constitutional-Driven Change of Heart ISP Liability, AI and the Digital Single Market
- Forum - Jurisprudential Cross-Fertilization: An Annual Overview
- Antônio Augusto Cançado Trindade, The Continuity of Jurisprudential Cross-Fertilization in the Case-Law of International Tribunals in Their Common Mission of Realization of Justice
- Anda Scarlat, The ICC Appeals Chamber>'s Judgment in The Prosecutor v. Bemba at al. – A Reminder of the Often Overlooked Value of International Jurisprudence Concerning Offences Against the Administration of Justice
- Juan-Pablo Perez-Leon-Acevedo, Reparations for Victims of Mass Atrocities: Actual and Potential Contributions of the Inter-American Court of Human Rights to the International Criminal Court
- Sonja C. Grover, Collective Reparations as a Partial Remedy for State-Perpetrated Blanket Violations of the Rights of Targeted Child Asylum Seeker Groups
- Faraaz Mahomed, Janet E. Lord & Michael Ashley Stein, Transposing the Convention on the Rights of Persons with Disabilities in Africa: The Role of Disabled Peoples’ Organisations
- Mihreteab Tsighe Taye, The Role of the East African Court of Justice in the Advancement of Human Rights: Reflections on the Creation and Practice of the Court
- Anthony Kennedy, Approaches to Jurisdiction Clauses in Anglophone African Common Law Countries: Principle and Policy
- Toby Fenwick, The Seychelles–Somaliland Prisoner Transfer Agreement: A Case of Implicit Recognition?
- Carol Chi Ngang & Patrick Agejo Ageh, Intellectual Property Protection of African Traditional Medicine within the Legal Framework of the Right to Development
- Babatunde Fagbayibo, The Legal Regime of Compliance with Regional Norms in Africa: Reframing the Paradigms of Engagement
Wednesday, July 24, 2019
International human rights law seeks to eliminate racial discrimination in the world through treaties that bind and norms that transform. Yet law’s impact on eradicating racism has not matched its intent. Racism, in all of its forms, remains a massive cause of discrimination, indignity, and lack of equality for millions of people in the world today. This Article investigates why. Applying a critical race theory analysis of the legal history and doctrinal development of race and racism in international law, Professor Spain Bradley identifies law’s historical preference for framing legal protections around the concept of racial discrimination. She further exposes that international law has neither explicitly defined nor prohibited racism. In response, Professor Spain Bradley advances a long-overdue claim: racism should be affirmatively and explicitly recognized as a human rights violation under international law. She argues that addressing racism in the world today requires understanding how human rights are violated by racial ideologies in addition to discriminatory acts. Insights from neuroscience about racial bias deepen these understandings. By naming “human rights racism” as the central challenge, this Article calls upon the international community to affirmatively recognize racism’s extensive harm and to take more seriously its eradication.
- Rachel Murray, Confidentiality and the implementation of the decisions of the African Commission on Human and Peoples’ Rights
- Jamil D. Mujuzi, Private prosecution as a local remedy before the African Commission on Human and Peoples’ Rights
- Ronald Naluwairo, Improving the administration of justice by military courts in Africa : an appraisal of the jurisprudence of the African Commission on Human and Peoples’ Rights
- Benyam Dawit Mezmur, No second chance for first impressions : the first amicable settlement under the African Children’s Charter
- Archangel Byaruhanga Rukooko & Jon Silverman, The International Criminal Court and Africa : a fractious relationship assessed
- Shirambere Philippe Tunamsifu, Twelve years of judicial cooperation between the Democratic Republic of the Congo and the International Criminal Court : have expectations been met?
- Yolandi Meyer, The effectiveness of market-based initiatives for regulating development projects by multinational corporations in Africa with regard to human rights and environmental abuses
- Kwadwo Appiagyei-Atua, Students’ academic freedom in African universities and democratic enhancement
- Ronald Kakungulu-Mayambala & Solomon Rukundo, Digital activism and free expression in Uganda
- Itumeleng Shale, Historical perspective on the place of international human rights treaties in the legal system of Lesotho : moving beyond the monist-dualist dichotomy
- Samrawit Getaneh Damtew, Land-grabbing and the right to adequate food in Ethiopia
- Ines Kajiru & John C. Mubangizi, Human rights violations of persons with albinism in Tanzania : the case of children in temporary holding shelters
- Isidore Kwadwo Tufuor, Greasing the wheels of legal aid in criminal proceedings in Ghana : an evaluation of the legal and regulatory framework
- Shanelle van der Berg, A capabilities approach to remedies for systemic resource-related socio-economic rights violations in South Africa
- Louis Botha & Anton Kok, An empirical study of the early cases in the pilot equality courts established in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000
- Mtendeweka Mhango, The right to equality and access to courts for government employees in South Africa : time to amend the Government Employees Pension Law
- Carol C. Ngang, Editorial: special focus on the functional dimensions of the right to development
- Carol C. Ngang, Systems problem and a pragmatic insight into the right to development governance for Africa
- Simeon A. Igbinedion, Finding value for the right to development in international law
- Serges Djoyou Kamga, A call for a ‘right to development’- informed pan-Africanism in the twenty-first century
- Annelie de Man, The Sustainable Development Goals and the rights-based approach to development : compatible or missing the point?
- Clydenia Stevens, Reviving the right to development within the multilateral trade framework affecting (African) countries to actualise Agenda 2063
- Isaac Shai, The right to development, transformative constitutionalism and radical transformation in South Africa : post-colonial and de-colonial reflections
- Ciara O’Connell, Reconceptualising the first African Women’s Protocol case to work for all women
- Jesse Prinsloo, The constitutionality of the Fee Exemption Regulations in South African schools : a critical analysis of Michelle Saffer v Head of Department, Western Cape Education Department
- D. Casalin, Human Rights Treaty Mechanisms and Reparation for International Humanitarian Law Violations: Fragmentation, Partiality, Selective Justice?
- L. García Martín, Looking for the ‘Missing Piece of the Puzzle’: Corporate Accountability in Transitional Justice
Tuesday, July 23, 2019
- Special Issue: Dancing with Custom
- Jean d’Aspremont, The Four Lives of Customary International Law
- Matthias Lippold, Reflections on Custom Critique and on Functional Equivalents in the Work of Jean d’Aspremont
- Fernando Lusa Bordin, A Glass Half Full? The Character, Function and Value of the Two-Element Approach to Identifying Customary International Law
- Michael Wood, Customary International Law and the General Principles of Law Recognized by Civilized Nations
- Magdalena Pacholska, New Kids on the Block: International Organizations as Customary Rules Creators
- Kasey McCall-Smith, Treaty Bodies: Choreographing the Customary Prohibition against Torture
- Agata Kleczkowska, Changing Customary Law: The Shape of the Prohibition of the Use of Force after the 2017 and 2018 Airstrikes in Syria
- Catharina Maracke, Free and Open Source Software and FRAND‐based patent licenses: How to mediate between Standard Essential Patent and Free and Open Source Software
- Charles Lawson, Fran Humphries, & Michelle Rourke, The future of information under the CBD, Nagoya Protocol, Plant Treaty, and PIP Framework
- Indranath Gupta, Vishwas H. Devaiah, Dipesh A. Jain, & Vishal Shrivastava, Trends in prelicensing negotiations of standard‐essential patents
- Rokiah Alavi & Ida Madieha Abdul Ghani Azmi, The copyright reward system and content owners in the creative industry: A study of the Malaysian film and TV industry
- Wenting Cheng, China engages with the global intellectual property governance: The recent trend
- Jennifer H. Mike, A re‐evaluation of the framework for the protection of patents, women’s health in Nigeria and the issue of accessing pharmaceutical innovation in Africa: Designing strategies for medicines
- Jessica C. Lai, Daniel F. Robinson, Tim Stirrup, & Hai‐Yuean Tualima, Māori knowledge under the microscope: Appropriation and patenting of mātauranga Māori and related resources
- Althaf Marsoof Indranath Gupta, Shielding internet intermediaries from copyright liability—A comparative discourse on safe harbours in Singapore and India
Sunday, July 21, 2019
In this paper, we examine the actual and potential roles of silence as an element of jus ad bellum treaty law and customary international law. By silence, we mean a lack of a publicly discernible response either to conduct reflective of a legal position or to the explicit communication of a legal position. We focus here on the silence of States and the United Nations Security Council as the primary actors who are positioned to shape, interpret, and apply jus ad bellum. We evaluate how silence has been employed by various scholars in making legal arguments in this field, and how silence may have the potential to affect the formation, identification, modification, and termination of various doctrines.
We submit that there is no quantum of silence that has clear doctrinal force. We argue that, at least in relation to jus ad bellum, only certain forms of qualified silence — whether of States or of the Security Council — may be capable of contributing to legal effects. We further contend that, due in part to the nature and status of the norms underlying this field, those forms of qualified silence ought not to be lightly presumed. Arguably, there is a strong, if rebuttable, presumption that silence alone does not constitute acceptance of a jus ad bellum claim. Still, States and other international actors should be aware of the possible role that their silence could play in the identification and development of this field.
We complement our analysis with an Annex that offers the most comprehensive catalogue to date of communications made by U.N. Member States to the Security Council of measures taken in purported exercise of the right of self-defense. The catalogue records over 400 communications made since the founding of the United Nations in late October 1945 through 2018. These communications reflect the views of the submitting State(s) on the scope of the right to employ force on the purported basis of self-defense.
The rights of foreign states under the U.S. Constitution are becoming more important because the actions of foreign states and foreign state-owned enterprises are expanding in scope and the legislative protections to which they are entitled are contracting. Conventional wisdom and lower court cases hold that foreign states are outside our constitutional order and that they are protected neither by separation of powers nor by due process. As a matter of policy, however, it makes little sense to afford litigation-related constitutional protections to foreign corporations and individuals, but to deny categorically such protections to foreign states.
A careful analysis of Article III and of the Fifth Amendment shows that the conventional wisdom and lower court cases are wrong. Foreign states are protected by Article III’s extension of judicial power to foreign-state diversity cases, the purpose of which was to protect foreign states from unfair proceedings and to prevent international conflict. The Article III “judicial power” over “cases” also presupposes both personal jurisdiction (over any kind of defendant) and other process-based limitations. The Fifth Amendment overlaps with Article III in important ways. It also protects foreign states. They are “persons” due the same constitutional “process” to which other defendants are entitled. Modern scholars have struggled to see the connection between due process and personal jurisdiction. The cases involving the immunity of foreign states makes the connection clear for all defendants. “Process” only reached defendants within sovereign power, or jurisdiction, of the issuing court.
Examining the Constitution from the perspective of foreign states thus reveals the document in a new light, illuminating its core features in ways that advance our historical and theoretical understanding of the Constitution, with significant implications for several additional areas of modern doctrine. The analysis of separation of powers and due process also lays the groundwork for determining whether foreign states have additional constitutional rights.