AJIL Unbound

By: Curtis A. Bradley and Carlos M. Vázquez | July 20, 2015 | 01:00 PM EDT

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AJIL Unbound is pleased to publish an Agora on the Supreme Court’s recent decision in Zivotofsky v. Kerry (Zivotofsky II).[1] This highly anticipated separation-of-powers decision addresses the validity of congressional action alleged to intrude upon the President’s exclusive power to recognize...

By: Jean Galbraith | July 20, 2015 | 12:00 PM EDT

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Zivotofsky v. Kerry (Zivotofsky II) is a case about the constitutional distribution of power. The narrow question is whether Congress or the President has the power to determine whether a U.S. citizen born in Jerusalem can have “Israel” listed as his country of birth on his passport when the President does not formally recognize Jerusalem as part of Israel. As for the broader question—well, the case is packed...

By: Harlan Grant Cohen | July 20, 2015 | 12:00 PM EDT

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Perhaps the most striking aspect of the Supreme Court's decision in Zivotofsky v. Kerry (Zivotofsky II),[1] was the open disagreement between Justice Kennedy and Chief Justice Roberts. What Justice Kennedy’s majority opinion,...

By: Curtis A. Bradley | July 20, 2015 | 12:00 PM EDT

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The U.S. executive branch has long declined to recognize any country’s sovereignty over Jerusalem, insisting that the matter be worked out through negotiations between Israel and the Palestinians. The U.S. Congress, by contrast, has tended to support Israeli sovereignty over the city. In 2002, Congress enacted the Foreign Relations Authorization Act for Fiscal Year 2003, Section 214(d) of which provides that, “...

By: Peter J. Spiro | July 20, 2015 | 11:45 AM EDT

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These have been heady times for those interested in foreign relations law. The last twenty years have seen the field transformed. In the 1970s and 1980s, Vietnam had triggered significant attention on constitutional war powers, but that interest was more political than scholarly. Other foreign relations law issues were debated only at the margins. The Restatement (Third) supplied a largely unchallenged...

By: John Tasioulas | July 10, 2015 | 12:30 PM EDT

In this contribution to AJIL Unbound, I outline a moral judgment-based account (MJA) of customary international law. On the MJA, moral judgment plays a dual role in the formation of customary international law. First, MJA is part of a disjunctive analysis of opinio juris, which involves a moral judgment about what the law ought to be or what it justifiably is. Second, the interpretive process of adducing a customary norm from state practice and opinio juris characteristically requires some moral judgment on the part of the interpreter. Along the way, I draw attention to...

By: Alexia Herwig and Gregory Shaffer | June 25, 2015 | 11:45 AM EDT

The World Trade Organization (WTO) Appellate Body’s (AB) decision in the EC—Seal Products[1] case of May 2014 has stirred considerable debate among legal academics regarding several of its findings and interpretations. The decision touches upon hotly debated issues in WTO law’s reading and application that have broad public policy implications. The policy implications include the ability of WTO members to ban imports based on public morals...

By: Joel Trachtman | June 25, 2015 | 11:30 AM EDT
By: Donald H. Regan | June 25, 2015 | 11:00 AM EDT

European Communities—Measures Prohibiting the Importation and Marketing of Seal Products[1] is the first case in which the dispute system of the World Trade Organization (WTO) has wrestled with a regulation that pursued multiple conflicting, legitimate purposes. (I will explain later why ...

By: Julia Y. Qin | June 25, 2015 | 10:45 AM EDT

I. Introduction

EC—Seal Products[1] raises an important issue in World Trade Organization (WTO) law: How can WTO treaties be interpreted to accommodate divergent legitimate purposes of a domestic regulation? The European Union (EU) measure[2] at issue...