As the lower courts take up the new challenges to President Trump’s September 24 proclamation, there is one argument that they should not accept: national security exceptionalism.
Ingrid Wuerth is the Helen Strong Curry Professor of International Law at Vanderbilt Law School, where she also directs the international legal studies program. She is a leading scholar of foreign affairs, public international law and international litigation. She serves on the State Department’s Advisory Committee on Public International Law, she is a Reporter on the American Law Institute’s Restatement (Fourth) on U.S. Foreign Relations Law, and she is on the editorial board of the American Journal of International Law. She has won Fulbright and Alexander von Humboldt awards permitting her to spend substantial time in Germany and she is an elected member of the German Society of International Law.
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Human rights issues are vitally important, but that does not mean that the United Nations Security Council should address them.
Those proposing an erosion of the U.N. Charter system in response to the Syrian airstrikes need to consider carefully whether the international legal system is strong enough to make nuanced use-of-force distinctions.
Many norms of international law, especially international human rights law, are widely violated. The international legal system as a whole may suffer as result.
The Trump administration has conspicuously—and surprisingly—complied with international law during its first months.
President Trump’s foreign business dealings and his own exposure to suit in foreign courts, Russian meddling in U.S. elections and cybersecurity more broadly, as well as the President’s thin-skinned, personal style of politics all illustrate the dangers of allowing the executive branch to make foreign official immunity determinations binding on the courts.
A little-noticed bill to amend the Foreign Sovereign Immunities Act (“FSIA”) passed both houses of Congress in December and was signed into law by President Obama on Dec. 16, 2016. The bill (“ The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (FCEJCA)” or “Art Museum Amendment”) narrows the expropriation exception in the FSIA to provide greater immunity for foreign states which send works of art to the United States for temporary exhibit. Unfortunately, the FCEJA may ultimately be more harmful than helpful to foreign states.