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International Economic Law and the American Journal of International Law

Published online by Cambridge University Press:  27 February 2017

Detlev F. Vagts
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Extract

To discuss the history of international economic law since the American Journal of International Law was first published in 1907 requires the author to project categories common to the parlance of 2006 back to times when theywere unknown. So far as it appears, the term did not become current until after World War II. Its scope is controversial. According to one definition, it encompasses “the total range of norms (directly or indirectly based on treaties) of public international law with regard to transnational economic relations.” A wide variety of international law rules have been said to have a financial impact somewhere. For practical purposes, in this essay I define international economic law as the international law regulating transborder transactions in goods, services, currency, investment, and intellectual property. I exclude from the inquiry issues of private international law, as well as of economic warfare.

Type
Centennial Essays
Information
American Journal of International Law , Volume 100 , Issue 4 , October 2006 , pp. 769 - 782
Copyright
Copyright © American Society of International Law 2006

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References

1 Early uses of the term include Georg, Erler, Grundprobleme Des Internationalen Wlrtschaftsrechts (1956)Google Scholar; Georg, Schwarzenberger, The Province and Standards of International Economic Law, 2 Int’l. L.Q. 402 (1948)Google Scholar; Georg, Schwarzenberger, The Development of International Economic and Financial Law by the Permanent Court of International Justice, 54 Jurid. Rev. 21 (1942).Google Scholar The term first appears in the Journal in a book review by Ernst, H. Feilchenfeld, 33 AJIL 427, 428 (1939).Google Scholar For overall reviews of the topic, see John, H. Jackson, Economic Law, International, in 2 Encyclopedia of Public International Law 20 (Rudolf, Bernhardt ed., 1995)Google Scholar; Ernst-Ulrich, Petersmann, International Economic Order, id. at 1128.Google Scholar

2 Pieter Verloren Van, Themaat, The Changing Structure of International Economic Law 9 (1981)Google Scholar. The parenthetical clause was inserted to avoid dealing with the customary law of expropriation, then stoutly challenged by many states. In a different approach, Georg, Schwarzenberger,The Principles and Standards of International Economic Law, 117 Recueil Des Cours 1, 17 (1966 I)Google Scholar, defines the topic by enumeration as follows: (1) the exploitation of natural resources, (2) the production and distribution of goods, (3) invisible economic or financial transactions, (4) currency and finance, (5) related services, and (6) status and organization of those engaged in such activities.

3 John, H. Jackson, The World Trading System 25 (2d ed. 1997).Google Scholar

4 I have tried to footnote Journal coverage of the issues treated in text.

5 See Stanley, D. Metzger, Developments in the Law and Institutions of International Economic Relations, Editor’s Note, 61 AJIL 756, 756 (1967).Google Scholar Its products included Stanley, D. Metzger, UNCTAD, 61 AJIL 756 (1967)Google Scholar; Joseph, Gold, Unauthorized Changes of Par Value and Fluctuating Exchange Rates in the Bretton Woods System, 65 AJIL 113 (1971)Google Scholar; Joseph, Gold, Weighted Voting Power: Some Limits and Some Problems, 68 AJIL 687 (1974).Google Scholar

6 An early occurrence of the phrase appears in the subtitle to Arthur, Nussbaum, Money in the Law: National and International, A Comparative Study in the Borderline of Law and Economics (1950).Google Scholar

7 E.g., Jeffrey, L. Dunoff & Joel, P. Trachtman, The Law and Economics of Humanitarian Law Violations in Internal Conflict, 93 AJIL 394 (1999).Google Scholar

8 On U.S. tariffs up to 1914, see Taussig, F. W., The Tariff his Tory of the United States (8th ed. 1931).Google Scholar An overview of the level of duties can be obtained from the appendix, at pp. 527–28. The ratio of duties to total imports was relatively low right before World War I.

9 Petersmann, supra note 1, at 1128.

10 Commercial Relations, China-U.S., Oct. 8, 1903, 33 Stat. 2206, 6 Bevans 695. For background, see Albert Bushnell, Hart, Pacific and Asiatic Doctrines Akin to the Monroe Doctrine, 9 AJIL 802, 812–13 (1915).Google Scholar A commercial treaty with Japan, to which the United States, Great Britain, France, and Holland were parties, similarly set tariffs for Japan. Establishment of Tariff Duties with Respect to Japan, June 25, 1866, TS No. 188, 1 Bevans 18. It was superseded as to the United States by Commerce, an agreement signed July 25, 1878, 20 Stat. 797, 9 Bevans 377.

11 B. Altman & Co. v. United States, 224 U.S. 583 (1912), discussed in 6 AJIL 716 (1912). Before that, trade matters were regularly the subject of treaties in the sense of Article II.

12 The agreement in question was the Protocol Respecting Commerce, Fr.-U.S., May 28, 1898, TS No. 98, 7 Bevans 857. In return for benefits regarding French artistic works, the United States gained lower rates on meat, fruit, and wood products.

13 Samuel, B. Crandall, The American Construction of the Most-Favored-Nation Clause, 7 AJIL 708 (1913).Google Scholar

14 See Whitney v. Robertson, 124 U.S. 190 (1888).

15 Convention Concerning the Formation of an International Union for the Publication of Customs Tariffs, July 5, 1890, 26 Stat. 1518, 1 Bevans 171.

16 When earlier the United States went off the gold standard under the Legal Tender Act of 1862, it was held that a Briton who owned a gold bond of an American railroad could not claim against the United States. Case of William, Adams, 3 John Bassett Moore, History and Digest of the International Arbitrations to which the United States has been a Party 3066 (1898).Google Scholar

17 Arthur, Nussbaum, International Monetary Agreements, 38 AJIL 242, 243–48 (1944)Google Scholar; see also Boris, Nolde, La monnaie en droit international public, 27 Recueil Des Cours 247 (1929 II).Google Scholar The latter seems to have been the first treatment of international financial law.

18 Convention Respecting the Limitation of the Employment of Force for the Recovery of Contract Debts, Oct. 18, 1907, 36 Stat. 2241, 1 Bevans 607. The Convention is sometimes known as the Porter Treaty after Horace Porter, the American delegate at The Hague. See Francis Anthony, Boyle, Foundations of World Order: the Legalist Approach to International Relations, 1898–1922, at 80–81 (1999).Google Scholar

19 Luis, M. Drago, State Loans in Their Relation to International Policy, 1 AJIL 692 (1907)Google Scholar; Amos, S. Hershey, The Calvo and Drago Doctrines, 1 AJIL 26 (1907).Google Scholar

20 Treaty Regarding Finances, Economic Development and Tranquility, Haiti-U.S., Sept. 16, 1915, 39 Stat. 1654, 8 Bevans 660; Convention Concerning Customs Revenues, Dom. Rep.–U.S., Feb. 8, 1907, 35 Stat. 1880, 7 Bevans 196; see Jacob, H. Hollander, The Convention of 1907 Between the United States and the Dominican Republic, 1 AJIL 287 (1907)Google Scholar; Editorial Comment, The San Dominican “Enabling Act,”1 AJIL 978 (1907). Similar agreements with Honduras and Nicaragua were not ratified. See Editorial Comment, The Proposed Loan Conventions Between the United States and Honduras and the United States and Nicaragua, 5 AJIL1044 (1911).

21 On the origins of the Hull rule, see Rudolf, Dolzer, New Foundations of the Law of Expropriation of Alien Property, 75 AJIL. 553, 558 (1981).Google Scholar

22 On the Calvo doctrine, see, for example, Hershey, supra note 19.

23 An example is the Treaty of Commerce and Navigation with Japan, Apr. 5, 1911, 37 Stat. 1 504, later construed in Asakura v. Seattle, 265 U.S. 332 (1924).

24 For a contemporary British picture of international law in this area, see William, Briggs, The Law of International Copyright, with Special Sections on the Colonies and the United States of America (1906).Google Scholar

25 Paris Convention for the Protection of Industrial Property, Mar. 20, 1883, 25 Stat. 1372, 626 UNTS 305, which came into effect for the United States in 1887.

26 See text at note 63 infra.

27 Paul, Goldstein, International Copyright: Principles, Law, and Practice 23 (2001).Google Scholar American authors could gain some “backdoor” access to the benefits of Berne by simultaneous publication in a member state.

28 see Briggs, supra ranote24, at 18. Copyright was also dealt with in a treaty with China. Commercial Relations, China-U.S., Art. XI, Oct. 8, 1903, 33 Stat. 2208, 6 Bevans 695.

29 The exceptions are collected in Gerald, L. Neuman, A Lost Century of American Immigration Law, 93 Colum. L. Rev. 1833 (1993).Google Scholar

30 George Grafton, Wilson, Economic Factors and International Law, 25 AJIL 503, 503 (1931).Google Scholar

31 Agreement on the Abolition of Import and Export Prohibitions and Restrictions, Nov. 8, 1927, 46 Stat. 2461, 2 Bevans 651. The United States terminated its adherence in 1930.

32 International Convention Relating to the Simplification of Customs Formalities, Nov. 3, 1923, 30 LNTS 372, 19 AJIL Supp. 146 (1925). For a comparison with later rules on transparency in tariffs, see Steve, Charnovitz, Transparency and Participation in the World Trade Organization, 56 Rutgers L. Rev. 927, 929 (2004).Google Scholar

33 Fordney-McCumber Tariff Act of 1922, ch. 356, 42 Stat. 858; Smoot-Hawley Tariff Act of 1930, ch. 497, §303, 46 Stat. 590, 687 (codified as amended at 19 U.S.C. §1303); Taussig, supra note 8, ch. XI.

34 Thirty-eight foreign governments presented objections to Congress during the Smoot-Hawley debates. Arthur, Kuhn, The Tariff as a Matter of International Concern, 23 AJIL 816 (1929).Google Scholar Kuhn argued that tariffs were an appropriate matter for international dialogue even though they were not governed by international law.

35 Charles, Kindleberger, The World in Depression 1919–1939, at 125–226 (rev. ed. 1986)Google Scholar, assigns a significant role in the depression to Smoot-Hawley and retaliatory responses abroad. Peter, Temin, Lessons from the Great Depression 46 (1989)Google Scholar, downplays its role.

36 Act of June 12, 1934, ch. 474, 48 Stat. 943.

37 S. Doc. No. 73–7, at 3 (1933), quoted in Philip, C. Jessup, Negotiating Reciprocity Treaties, 27 AJIL 738, 739 (1933).Google Scholar

38 Customs Regime Between Germany and Austria, Advisory Opinion, 1931 PCIJ (ser. A/B) No. 41, at 42 (Sept. 5) (quoting Article 88 of the Treaty of Peace, Allied & Associated Powers–Austria, Sept. 10, 1919, Brit. TS No. 11 (1919), 14 AJIL Supp. 1 (1920)). There were several commentaries on the case in the journal: Edwin, M. Borchard, The Customs Union Advisory Opinion, 25 AJIL 711 (1931)Google Scholar; Philip, C. Jessup, The Customs Union Advisory Opinion, 26 AJIL 105 (1932)Google Scholar; Manley, O. Hudson, The Tenth Year of the Permanent Court of International Justice, 26 AJIL 1, 9–15.Google Scholar

39 Resolution, May 12, 1933, [1933] 1 Foreign Relations of the United States 605, 3 Bevans 112. On the conference, its planning, and its collapse, see Kindleberger, supra note 35, at 197–221.

40 Final Act of the Conference of Wheat Exporting and Importing Countries, Aug. 25, 1933, 3Bevans 123, 141 LNTS 71 [hereinafter International Wheat Agreement]; International Agreement Regarding the Regulation of Production and Marketing of Sugar, May 6, 1937, 59 Stat. 921, 3 Bevans 388; International Coffee Agreement, Nov. 28, 1940, 55 Stat. 1143, 3 Bevans 672.

41 International Wheat Agreement, supra note 40, preambular statement.

42 See, e.g., United States v. Aluminum Co. of Am., 148 F.2d 416 (2d Cir. 1945).

43 See Perry v. United States, 294 U.S. 330 (1935). The dissenters warned that” [l] oss of reputation for honorable dealing will bring us unending humiliation; the impending legal and moral chaos is appalling.” Id. at 381.

44 Nussbaum, supra note 6, at 424–29; see also Edwin, Borchard, International Loans and International Law, 26 ASIL Proc. 134 (1932).Google Scholar

45 Payment of Various Serbian Loans Issued in France, 1929 PCIJ (ser. A) No. 20, at 17–20; Payment in Gold of the Brazilian Federal Loans Issued in France, 1929 PCIJ (ser. A) No. 21, at 101.

46 For a description of these agreements, most common in Central Europe from 1931 onward, and of the litigation they generated, see Nussbaum, supra note 17. For a more extended version, see Nussbaum, supra note 6, at 519–23.

47 On the sterling bloc, see Nussbaum, supra note 17, at 249, who states that “no documentary evidence of any agreement whatsoever exists; the known facts reveal no more than an actual cooperation of central banks and governments aimed at aligning the foreign exchange rates of the ‘block’ currencies to the rate of the pound sterling.” For the Tripartite Arrangement, see Declaration, Fr.-UK-U.S., Sept. 25, 1936, Dep’t St. info. Bull. NO. 84, Sept. 1936, at 15, 3 Bevans 277.

48 See Kindlebkrglr, supra note 35, at 255-60; Nussbaum, supra note 17, at 250–51.

49 Convention Respecting the Bank for International Settlements, Jan. 20, 1930, 104 LNTS 441, 24 AJTL Supp. 323 (1930); Helmut, Going, Bank for International Settlements, 1 Encyclopedia of Public International Law, supra note 1, at 342.Google Scholar The novel position of the BIS as an intergovernmental organization established under commercial rules was discussed twice in this Journal. John Fischer, Williams, The Legal Character of the Bank for International Settlements, 24 AJIL 665 (1930)Google Scholar; Manley, O. Hudson, The Bank fir International Settlements, 24 AJIL 561.Google Scholar

50 Jeff, Frieden, Sectoral Conflict and Foreign Economic Policy, 1914–1940, 42 Int’l Org. 59, 81 (1988).Google Scholar

51 Factory at Chorzów (Ger. v. Pol.), Indemnity, 1928 PCIJ (ser. A) No. 17.

52 For such a reference, see Restatement (Third) of the Foreign Relations Law of the United States §712 reporters’ note 1 (1987).

53 Journal’s coverage of the correspondence between the United States and Mexico and of the ultimate settlement was extensive—and quite partisan. Charles Cheney, Hyde, Confiscatory Expropriation, 32 AJIL 759 (1938)Google Scholar; Woolsey, L. H., The Expropriation of Oil Properties by Mexico, 32 AJIL 519, 526 Google Scholar (“a striking example of the lawless bravado now rampant among nations”); Charles Cheney, Hyde, Compensation for Expropriations, 33 AJIL 108 (1939).Google Scholar

54 United States v. Pink, 31 5 U.S. 203 (1942), commented on by Edwin, Borchard, Extraterritorial Confiscations, 36 AJIL 275 (1942)Google Scholar; United States v. Belmont, 301 U.S. 324 (1937), commented on by Philip, C. Jessup, The Litvinoff Assignment and the Belmont Case, 31 AJIL 481 (1937).Google Scholar

55 International Labour Organization Const., June 28, 1919, 49 Stat. 2712, 2 Bevans 240; see Manley, O. Hudson, The Membership of the United States in the International Labor Organization, 28 AJIL 669 (1934).Google Scholar

56 For a brief sketch of the ILO’s early history, see Klaus, Sampson, The International Labour Organization, 2 Encyclopedia of Public International Law, supra note l, at 1150.Google Scholar

57 1 Klaus Vogel ET AL., United States Income Tax Treaties, ch. 2 (loose-leaf 1995).

58 Treaty on Double Taxation, U.S.-Fr., Apr. 27, 1932,49 Stat. 3145, 7 Bevans 977; see Vogel, supra note 57, ch. 3.

59 Joint Declaration of the President and the Prime Minister, U.S. -UK, Aug. 14, 1941, 35 AJIL Supp. 191, 192 (1941).

60 The “Nixon Shock” refers to a set of measures instituted by President Richard M. Nixon because of a crisis in the foreign exchange situation of the United States. These measures included abandoning the convertibility of the dollar to gold and the imposition of tariff surcharges on imports. See United States v. Yoshida Int’l, Inc., 526 F.2d 560 (C.C.P.A. 1975).

61 See Joseph, Gold, Strengthening the Soft International Law of Exchange Arrangements, 77 AJIL 443 (1983).Google Scholar

62 GA Res. 3281 (XXIX) (Dec. 12, 1974); see Burns, H. Weston, The Charter of Economic Rights and Duties of States and the Deprivation of Foreign-Owned Wealth, 75 AJIL 437 (1981).Google Scholar

63 Contemporary Practice of the United States, 83 AJIL 64 (1989). For the Convention, Sept. 9, 1886, see 77 Brit. & Foreign St. Papers 22 (1886). It has since been revised frequently.

64 The literature on globalization is immense. Thomas, L. Friedman, The Lexus and the Olive Tree (1999)Google Scholar, and Joseph, E. Stiglitz, Globalization and IRS Discontents (2002)Google Scholar, are representative of positive and skeptical views, respectively.

65 Richard, H. Steinberg, Judicial Lawmaking at the WTO: Discursive, Constitutional, and Political Constraints, 98 AJIL 247 (2004)Google Scholar; see also Symposium: The Boundaries of the WTO, 96 AJIL 1 (2002).

66 Lead articles on international economic law in recent years in the Journal include Daniel, K. Tarullo, Norms and Institutions in Global Competition Policy, 94 AJIL 478 (2000)Google Scholar; Eric, Stein, International Integration and Democracy: No Love at First Sight, 95 AJIL 489 (2001)Google Scholar; Joost, Pauwelyn, The Role of Public International Law in the WTO: How Far Can We Go? 95 AJIL 535 Google Scholar; Steve, Charnovitz, Rethinking WTO Trade Sanctions, 95 AJIL 792 Google Scholar; Deborah, E. Siegel, Legal Aspects of the IMF/WTO Relationship: The Fund’s Articles of Agreement and the WTO Agreements, 96 AJIL 561 (2002)Google Scholar; Steinberg, supra note 65; Sabrina, Safrin, Hyperownership in a Time of Biotechnological Promise: The International Conflict to Control the Building Blocks of Life, 98 AJIL 641 (2004)Google Scholar; Frederick, M. Abbott, The WTO Medicines Decision: World Pharmaceutical Trade and the Protection of Public Health, 99 AJIL 317 (2005)Google Scholar. There was also the Symposium, supra note 65.

67 See, e.g., David, J. Bederman, Appraising a Century of Scholarship in the American Journal of International Law, 100 AJIL 20, 24–38 (2006)Google Scholar (centennial essay).