On March 19, 2011, the United States, its European allies, and its Arab partners launched an eight-month intervention in Libya. This was said to be necessary because Mu'amar Gaddafi, Libya's longtime ruler, was responding to mass protests against his over forty-year dictatorial reign by waging war on his own people. As President Barack Obama explained, without international intervention “the calls of the Libyan people for help would go unanswered. The democratic values that we stand for would be overrun. Moreover, the words of the international community would be rendered hollow.”

Article 2(4) of the UN Charter contains a general prohibition of the use of force. Articles 42 and 51 authorize departures from this prohibition in two circumstances: Security Council authorization and self-defense. These two circumstances are conceptualized as justifications. They provide for legally-warranted departures from the general rule. As a result, a justified use of force is not wrongful. Justifications are different from excuses where the action remains wrongful, but the wrongdoer may be released from responsibility for the wrongdoing.

This essay describes tensions that arise between two types of public goods enshrined in the United Nations Charter—the right to self-determination of people(s) within a territorial state and peace and security—in situations in which recognized governments in conflict-torn countries request military assistance from third states against opposition groups. It illuminates legal challenges in reconciling these public goods in practice, at a time when collective peacekeeping mechanisms appear unable to prevent or terminate civil conflicts and their destabilizing regional impact.

This essay offers a working definition of “foreign relations law,” describes its various sources, and distinguishes it from international law. It also provides some comparative illustrations of this law and notes some reasons for both commonalities and differences in this law across national jurisdictions. Finally, it discusses the growing emergence of foreign relations law as a field of study outside the United States.

EU external relations law is a doubly peculiar field of scholarship that has attracted significant scholarly attention over the last several decades. It is both part of EU law—considered a “new legal order” distinct from international law—and it is concerned with the European Union as a global actor, a “strange animal” in that the EU is neither a state nor a classical international organization.

National constitutions are central to the field of foreign relations law, which is defined by Curtis Bradley in his essay as “the domestic law of each nation that governs how that nation interacts with the rest of the world.” In this contribution to the symposium, I wish to explore the relation between foreign relations law and national constitutions, arguing that a “foreign relations lens” helps elucidate an underappreciated core purpose of these foundational texts. Next, I want to show how the shifting boundaries of constitutions serve to allocate lawmaking authority, emphasizing the substitution between international and domestic norms. Finally, I offer a comparative constitutional perspective on foreign relations law, laying out an agenda for future work in the area.

This essay draws upon the perspectives, concepts, and tools developed in the literature on global constitutionalism as support for “normalizing” foreign relations law—that is, presumptively subjecting foreign relations actions to the constitutional and other legal standards that apply to domestic actions.

Curtis Bradley has observed that, apart from in the United States, foreign relations law generally has not been treated as a separate academic field, but that this situation is starting to change. This observation can also find evidence in China. In March 2016, I hosted a conference on “Chinese Foreign Relations Law: A New Agenda” at Xiamen University School of Law, where I am a faculty member. This is the first conference engaging with this field in China. Also in 2016, a Chinese professor of private international law published the first article discussing Chinese foreign relations law in a general way, the main argument of which is that foreign relations law should be a component of the “rule of law” in China.

Jeffrey L. Dunoff and Mark A. Pollack's article is an important and very welcome contribution to the discussion about judicial values. The authors argue that with respect to judicial independence, transparency, and accountability “judicial systems face inherent trade-offs, such that any given court can maximize two, but not all three, of these features.” In our eyes, the article's most important contribution is its holistic view: it shows why these three judicial values can only be understood in their interconnectedness. It is, for instance, not meaningful to make a statement about the correlation between transparency and independence without also taking accountability into the equation. This is because the effect of transparency on independence can only be understood if information about judicial accountability is at one's disposal. In the past, these judicial values have often been analyzed in an isolated manner, thereby leading to wrong conclusions. The Judicial Trilemma will hopefully help in shifting the discourse from isolated to holistic views on independence, transparency, and accountability. Moreover, Dunoff and Pollack lay the groundwork for a meaningful normative discussion of these three judicial values. Any debate about how to structure (international) courts should henceforth take Dunoff and Pollack's holistic view as a basis for discussion.

Jeffrey Dunoff and Mark Pollack's Judicial Trilemma is a refreshing challenge to prevailing narratives about judicial decision-making in international courts and tribunals and is part of a growing wave of scholarship deploying empirical, social science-driven methodology to theorize the place of judicial institutions in the international legal field. Seeking to peek behind the black robes and divine the reasoning behind judicial decisions without descending into speculation and actively trying to thwart considerations of confidentiality is a fraught endeavor on which I have expressed skepticism in the past. The Judicial Trilemma admirably seeks to overcome these challenges, and I commend the authors for tackling the hard question as to whether one can truly glance behind the black robe.

The Judicial Trilemma, by Jeff Dunoff and Mark Pollack, studies the dynamic relations between accountability, transparency, and independence, and suggests that designers can only maximize two of these three values at once. They can create a court that has high levels of (1) independence and accountability, (2) transparency and independence, or (3) accountability and transparency, but only at the cost of having a low level of the third value. The article explores these ideas using four different international tribunals, but its insights are not limited to international courts. Domestic designers also have to decide what levels of accountability, independence, and transparency their courts should have, and in making a decision they will face the Judicial Trilemma and confront the hard choice of selecting primarily two out of three values.

Dunoff and Pollack's timely article on The Judicial Trilemma offers a constructive paradigm through which to examine and assess the design and the behavior of international courts and tribunals and, in particular, their members at a time when, despite the increasing judicialization of international law and relations, the legitimacy and function of such courts and tribunals are being questioned in political and public discourse. The focus of this response is on the application of the paradigm to the World Trade Organization (WTO) dispute settlement system, which is one of the international courts and tribunals examined by the authors.

World Trade Organization (WTO) members have, once again, been unable to agree on the appointment of new members to the Appellate Body (AB) in a timely fashion, as one member's term expired on June 30, 2017, another member resigned in August 2017, and a third member's term will expire in December 2017, with no consensus on a process to fill those posts. The 2017 standoff follows on the heels of a fractious debate during the summer of 2016 over the United States’ decision to block the reappointment of AB member Sueng Wha Chang of Korea to a second term. Given that the AB has just seven members, the inability to quickly appoint new members to replace those whose terms have expired only adds to the difficulty of rendering decisions within the tight time frames called for in the WTO rules.

Seventeen years into the life of the African Growth and Opportunities Act (AGOA), two key issues stand out: first, that the preference utilization rate—as indicated by the meagre increases in African exports to the United States—remains marginal; and second, that the AGOA initiative has not helped build diversified African economies. This reality in turn raises two critical issues: that Africa's structural challenges need to be addressed; and that extensions of the AGOA in and of themselves may not be the solution for the continent's economic development. Therefore, looking toward 2025 is an opportunity to have a fresh discussion with the United States, one focused on placing the African economic development challenge at the heart of the dialogue. This requires designing a new model grounded in Africa's aspirations for structural transformation of its economies from primary product to industrial product exporters.

This essay assesses and evaluates the extent to which the African Growth and Opportunity Act (AGOA) increased imports from AGOA eligible countries to the United States from 2001 to 2015. The essay then examines how African countries can make the most of the preferences granted under AGOA, arguing that AGOA national utilization strategies have proven successful. In the final part, the essay explores options for future U.S.-Africa trade relations after the AGOA expires in 2025, proposing approaches that would best support African development. In this regard, this essay argues that, since Congress is unlikely to renew AGOA in its current form and since AGOA will likely be replaced with an arrangement requiring some degree of reciprocity, it will be very important for (1) the African Union's Continental Free Trade Area (CFTA) to be implemented before any new U.S.-Africa trading arrangement comes into force and (2) for negotiations for any future U.S.-Africa trading arrangement not to mimic the negotiations conducted for the Economic Partnership Agreements with the European Union.

This essay examines the challenges and opportunities for regional trade lawmaking in the U.S.-Africa relationship. On the eve of the conclusion of an African continental free trade agreement, the U.S. trade law relationship with the continent remains focused on regional groups. Questions remain as to whether the existing trade law regime offers the flexibility necessary to accommodate alternative models to free trade agreements that may best serve the needs of African and U.S. constituencies. The essay proceeds in four parts. First, I sketch the current state of play in U.S.-Africa trade relations. Next, I outline how the U.S. and African approaches to trade lawmaking have differed. I then turn to two sets of challenges—one domestic and one international—that may impede innovation in developing a U.S.-Africa trade law relationship consistent with African interests. Finally, the essay concludes with an exploration of possible alternatives and issues not yet considered in the transcontinental dialogue on trade.