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TABLE OF CONTENTS INTRODUCTION I. THE RISE OF ECONOMIC WARFARE AS A NATIONAL SECURITY STRATEGY II. ECONOMIC WARFARE AS A MAJOR QUESTION A. The Major Questions Doctrine B. Why Economic [...], The rise of the major questions doctrine--the rule that says that in order to delegate to the executive branch the power to resolve a "question of 'deep economic and political significance' that is central to [a] statutory scheme," Congress must do so expressly--threatens to unmake the modern executive's authority over foreign affairs, especially in matters of national security and interstate conflict. In the twenty-first century, global conflicts increasingly involve economic warfare, rather than (or in addition to) the force of arms. In the United States, the executive power to levy economic sanctions and engage in other forms of economic warfare are generally based on extremely broad delegations of authority from Congress. The major questions doctrine (MQD) threatens the ability to fight modern conflicts for two reasons. First, classic national-security-related conflicts--wars of territorial conquest, terrorism, or nuclear proliferation--increasingly are met with economic measures. But the statutes that authorize economic warfare actions are incredibly broad and recent administrations have interpreted these statutes in ways that risk running afoul of an expansive and free-form MQD. Second, "foreign affairs exceptionalism," in which the Court decides not to apply the MQD to statutes involving foreign affairs, is not likely to work well as a response because what is "foreign" and "domestic" cannot be easily distinguished and attempts to do so will have perverse consequences. The MQD raises serious problems for foreign affairs and national security. If the MQD is applied to domestic, but not foreign, delegations, then the executive branch will have an incentive to use broad foreign affairs delegations to accomplish domestic policy objectives in order to evade the safeguards and limits that attend domestic administrative action. At the same time, judges will have to police the porous boundary between "foreign" and "domestic," with especially high error costs because wrong decisions will affect national security. If the MQD is applied to economic delegations that touch foreign commerce, the most likely consequence is that judges--particularly lower court judges--will be put in the position of second-guessing executive branch decisionmaking on precisely those questions--economic foreign policy questions of deep economic and political significance--on which the political branches enjoy both constitutional primacy and institutional expertise. This result is troubling; judges lack the knowledge and training to make effective decisions bearing on foreign policy, and putting them in the position to do so contravenes the norms of our legal system.

CONTENTS I Introduction 1 II The Emergence of a Collective Obligation in the Drafting of Article 3 4 III The Implementation of the Collective Obligation in relation to South Africa [...], Under art 3 of the International Convention on the Elimination of All Forms of Racial Discrimination ('ICERD'), states parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction. The provision is central to Palestine's inter-state communication against Israel under arts 11-13 of ICERD, in which it is argued that Israel's policies and practices in the occupied Palestinian territories constitute apartheid. Importantly, Palestine invokes two obligations inherent in art 3--the individual obligation of Israel to prevent, prohibit and eradicate all practices of this nature, and the collective obligation of all states parties to ICERD to condemn such practices by not recognising as lawful the illegal situation, or rendering aid or assistance in its maintenance. This article examines the origin, meaning and implications of the collective obligation to condemn apartheid under art 3 of ICERD. It traces its emergence in the text of art 3 through the drafting history of the provision. It outlines its implementation by the Committee on the Elimination of Racial Discrimination ('CERD') in relation to apartheid South Africa from 1970-94, a period in which South Africa remained outside the treaty and the obligation of all states parties to condemn apartheid was the focus of the Committee's work. Finally, it considers its potential implications in Palestine v Israel, underlining that a finding of apartheid would render the obligation opposable in relation to the other 180 states parties to ICERD under all of its mechanisms. It could be monitored in state reports, individual communications or inter-state communications before CERD, or litigated in inter-state proceedings before the International Court of Justice.

TABLE OF CONTENTS I. INTRODUCTION 1149 II. UNDERSTANDING THE CHARMING BETSY DOCTRINE 1151 A. Charming Betsy as a Limit on Extraterritorial Application of Laws 1153 B. Charming Betsy as a [...], In the 1803 The Schooner Charming Betsy case, Chief Justice Marshall announced a canon of interpretation that "an act of Congress ought never to be construed to violate the laws of nations if any other possible construction remains." The Charming Betsy canon has become as venerable as its name is felicitous: as recently as 1988 the Supreme Court noted that the doctrine "has for so long been applied by this Court that it is beyond debate." After exploring the traditional justifications for Charming Betsy, this Article proposes that the canon should be justified, not just by Congressional intent or separation of powers, but by our desire to promote "rule of law" globally. Based on this justification for the canon, the Article reasons that it should be applied more vigorously in relation to legal norms established by treaty than in relation to customary international law. The Article also proposes a nuanced relationship between the Charming Betsy canon and another key interpretative tool of American courts, the Chevron doctrine. Finally, the Article explores whether and how Charming Betsy should be brought to bear in trade disputes where Congress has crafted special rules for recognition and implementation of WTO decisions.

TABLE OF CONTENTS I. INTRODUCTION 1267 II. THE USMCA POISON PILL--A TROUBLING TRADE-RESTRICTIVE EXPULSION CLAUSE 1273 A. Functionally an Expulsion Clause--Not an Exit Clause 1274 B. Poison Pill Compared to [...], The United States, Canada, and Mexico have ratified a multilateral trade agreement (the "USMCA") that contains a highly unusual provision. This provision (referred to as the "Poison Pill") is intended to deter the signatories from entering into a free trade agreement (FTA) with any "non-market country." The Poison Pill was introduced by the United States in the wake of the US-China trade war and was most likely directed at deterring Canada from entering into an FTA with China. This Article argues that the Poison Pill is functionally an expulsion clause (as opposed to a withdrawal clause) which violates the USMCA parties' preexisting obligations under the WTO Agreement regarding FTAs. This is because the Poison Pill raises barriers to trade and is unnecessary for the formation of an FTA. Paradoxically the Poison Pill also depends on the WTO Agreement's Most Favored Nation (MFN) provision to more effectively limit a nation's ability to enter into FTAs with a "non-market country." It is troubling that the United States used the coercive and unjustified imposition of tariffs, under the guise of national security, as negotiating leverage in USMCA negotiations. The United States has also indicated that it may include Poison Pills in future FTAs. This Article proposes two strategies for minimizing the impact of the Poison Pill on nations who may be coerced into accepting it: entering into overlapping multilateral FTAs and forging economic relationships outside of the "FTA-box." If the United States cannot credibly commit to WTO rules then non- US nations will have to turn to other superpowers (e.g., China and the EU) and large trading blocs to counterbalance an overreaching United States. These strategies align with a broader imperative: dealing with a United States that will not commit itself to a rules-based trading order with even its long-standing allies.

I. INTRODUCTION 166 II. ICSID REFORM PROPOSAL 168 A. Original Rule 169 B. Need for Change 171 C. Proposed New 172 Rule: WP # 1 Rule 29 D. Proposed New [...], This Article shows that the International Centre for Settlement of Investment Disputes' (ICSID) current rules for arbitration, which automatically suspend the arbitration proceeds, are direct contributors to the high costs and long proceedings in ICSID. The Articles also argues that failing to eliminate the automatic suspension of proceedings is simply putting off a change that will inevitably need to be made. Following complaints that investment arbitrations were too costly and too lengthy, ICSID finally began addressing the issue of arbitrator disqualifications by initiating a round of amendments in October 2016. ICSID has proposed two different remedies to this problem, which could replace the original rule: the first proposal would provide a much-needed increase in ICSID's efficiency, but the second proposal is little more than an entrenchment of the status quo. ICSID should adopt a slightly modified version of the first proposal to continue the proceedings in the face of arbitrator challenges.

The Trans-Pacific Partnership ('TPP') directs investment tribunals to apply both the TPP itself and 'applicable rules of international law' in resolving disputes. This article addresses two uncertainties that lie behind [...]

Abstract There has been a lack of proper examination of Article XXI, the national security exception of the GATT 1994, in current World Trade Organisation law discourse. It is only [...]

"Legal precedent in international dispute settlement is neither to be worshipped nor ignored." Gilbert Guillaume, former President of the International Court of Justice (1) I. INTRODUCTION II. ARE DISSENTS DESIRABLE [...]

I. INTRODUCTION II. THE DISPUTE III. THE ECUADOR-U.S. BIT A. The Role of BITs in International Investor-State Disputes B. BITs Offer Dispute Settlement Through ICSID Arbitration C. Ecuador- U.S. BIT's [...]

Abstract Trade and investment treaties have proliferated throughout the Asia-Pacific region. Their dispute resolution mechanisms are important in entrenching market access commitments, especially when providing for direct claims by firms [...]

ABSTRACT This Article explores the advantages that WTO membership brings to Vietnam in connection with antidumping disputes. In particular, this Article examines the trade relationship between Vietnam and the United [...]

I. Introduction THE ONGOING DEBATE over the relation between conceptions of private property and the role of the state entered a new chapter in the late twentieth century with the [...]

ABSTRACT In December 2007, the WTO awarded Antigua the right to suspend TRIPS obligations at a value of $21 million. This decision represents the WTO's continuing evolution into a body [...]

I. INTRODUCTION 500 II. The Korea-United States FRee Trade Agreement 501 A. Overview of the KORUS FTA 501 B. Economic Analysis of the Agreement 502 1. The Goals of the [...]

This panel was convened at 9:00 a.m., Thursday, March 28, by its moderator, Matjaz Nahtigal of the University of Ljubljana, who introduced the panelists: Uche Ewelukaw of the University of [...]