The Identification of Customary International Law: Institutional and Methodological Pluralism in U.S. Courts

It is well established that there is a consensus, two-element approach to the identification of customary international law. Among international courts and organizations, a customary rule is identified based on evidence of a general practice by states, which is accepted as law. Customary international law, however, is also subject to identification at the national level. For centuries, questions regarding the existence and content of customary international rules have arisen in national courts. Given their own institutionalized methods of resolving legal ambiguity, national courts are thus routinely faced with a normative conflict: is the appropriate method for identifying rules of customary international law located in the national or international realm? By using customary international law as a case study, this Article offers a more nuanced understanding of how international law is localized into U.S. courts. While prevailing theories posit that the diffusion of international rules results in national acceptance or rejection, this empirical analysis demonstrates how normative pluralism may also generate hybridization. As international integration accelerated after World War II, U.S. judges increasingly relied on hybrid models of decision-making that sought legitimacy within both the national and international legal systems

The Strange New World of United States Export Controls Under the International Emergency Economic Powers Act

This Article examines whether the President\u27s reauthorization of the Regulations is within the scope of the authority provided by IEEPA and explores the potential long term consequences of life under IEEPA for the United States system of export and boycott-related controls. Section I analyzes whether the President\u27s emergency powers under the IEEPA permit the maintenance of regulations originally promulgated under a statute that has since lapsed (i.e. the EAA). The Article demonstrates that when Congress promulgated the IEEPA, Congress expressly evinced its intent to give the President broad emergency authority to regulate exports and boycott-related practices during periods of the EAA lapse. Although there are serious doubts whether the lapse of the EAA rises to the level of an unusual and extraordinary threat to the national security, foreign policy, or the economy of the United States sufficient to allow the President to invoke the emergency powers under the IEEPA, the courts\u27 traditionally have been unwilling to review the validity of such Presidential determinations of an emergency. Thus, when the Regulations are maintained under the IEEPA during periods of EAA lapse, they nevertheless should be considered valid. Section II analyzes how the shift from the EAA to the IEEPA can affect the basic structure of United States export controls and boycott-related restrictions. It then examines the consequences of these changes for both businesses subject to the Regulations and for Congress, which traditionally has exercised a major role in the regulation of exports. Although Congress narrowly structured the EAA to provide a long-term framework for export and boycott-related controls, the broadly worded IEEPA does not contain such requirements or guidelines that limit the scope of the Administration\u27s discretion. Thus, under the guise of his emergency powers, the President can safely ignore the requirements and standards of the lapsed EAA, and unilaterally restructure the Commerce Department\u27s Regulations for the duration of the emergency. While the IEEPA permits greater judicial review of Commerce Department actions than did the EAA, such lawsuits rarely succeed in reversing the Commerce Department\u27s decisions and cannot limit the President\u27s discretion to reshape United States export controls and boycott-related restrictions in an emergency. Thus, a lengthy EAA lapse, like the recent one, allows the President to exercise unilateral emergency authority under the IEEPA, resulting in: (1) an unstable regulatory environment for international business transactions; and (2) an eclipse of the traditional role of Congress in structuring export controls. This article concludes by urging that when the EAA has lapsed, Congress should immediately reauthorize this important enabling statute in order to provide a more predictable regulatory environment for United States exporters and to reclaim its plenary authority in the regulation of foreign commerce. Moreover, with possible future lapses of the EAA in mind, Congress also should amend the IEEPA to require the maintenance of the Regulations without material change during future periods of lapse