Political Commitments: A Response to Professor Swaine

by Duncan Hollis

[This post was jointly authored by Duncan Hollis and Joshua Newcomer] Ed Swaine brings his typical thoughtful (and rigorous) method to our article, and we greatly appreciate his insights, not only for engaging with our ideas but also for suggesting how we might advance them in future scholarship. Since Ed has framed his comments as questions, we’ve endeavored to provide responses to each of his five questions below.

1. What is the international significance of political commitments? Our research produced lots of anecdotal evidence on the widespread use of political commitments. Add to that the experience that one of us (Hollis) had in the State Department Treaty Office, where he spent as much time working on political commitments as actual treaty-making, and we’re hard pressed to deny that this is a pretty regular tool of international relations (a point on which Tony Aust, a former legal official in the British Foreign Office, readily concurs). That said, we take Ed’s point that there are no comprehensive surveys of the political commitment practice. Nor are there collections of these instruments; indeed, no mechanism exists for states to record or publicize them. By placing political commitments under the Constitution, however, we hope to generate information-forcing actions from Congress and the executive branch to develop a better picture of when, how, and with whom the United States concludes political commitments.

In any case, although we resist the notion that political commitments are rare (at least for the United States), we readily concede that some of them may comprise “cheap talk.” At the same time, however, our article emphasizes that other political commitments have provided significant constraints on state behavior (e.g., the Helsinki Accords or the FATF regime). Thus, our article reveals a political commitment practice far more diverse than previously acknowledged. And, as discussed below, we devised our typology to figure out what criteria distinguish “cheap talk” political commitments from those that are meaningful. To get at the domestic constitutional question, we wanted to show not only that this instrument has become a significant tool of U.S. foreign relations, but also that it can be employed to perform an array of functions that vary widely in terms of implications for U.S. credibility, reputation, flexibility, and foreign relations more generally. Moreover, whatever the breadth and depth of the political commitment practice, we need not concede that these instruments have international legal effect. While sometimes they might, we aimed to illustrate that, whatever their legal effect, the potential political significance of these instruments alone warrants constitutional scrutiny.

In that respect, we welcome Ed’s comment that our inversion of the traditional incorporation problem bears further consideration; indeed, we would welcome a discussion of other instances where something that has no international legal effect may still trigger domestic constitutional concerns. Our article, however, does not focus greatly on U.S. incorporation of non-legal norms or regimes, which we agree requires a legal act. Rather, just as the Constitution already allocates other “political” powers (appointments, spending, etc.), we examine what it says about the executive’s political commitments practice.

2. What are the essential characteristics of a PC? Although our article shows a broad and deep political commitment practice, we also aim to cabin that practice so as not to encompass all forms of international communication. Thus, we clearly define political commitments to exclude treaty-making. Similarly, we distinguish unilateral actions, by suggesting that a political commitment has three common characteristics—mutuality, expectation, and manifest intent—not present in a unilateral act or policy. Ed suggests that these categories might be too artificial or thin. Although we concede the risk of being overly formal in such definitional exercises, we believe our definition has utility, highlighting an observable and distinguishable practice that states themselves recognize and that can be employed by government actors both ex-ante and ex-post. For example, we see value in distinguishing unilateral actions from ones involving mutuality for many of the same reasons that international law has long distinguished treaties from unilateral acts, even if the latter can produce legal effects. Similarly, we endorse a requirement of expectation, however thin it might be, to exclude those (not infrequent) arrangements where two states sign a document that contains no promises, political or legal. Finally, we concur with Ed that of our three criteria, manifest intent is probably the most important and useful to distinguishing treaty and political commitments. And, although we don’t discuss “the also rans” in our introductory section, we do consider in our later constitutional analysis what happens when the manifest intent differs (e.g., the serious U.S.-U.K. rift over certain defense “memoranda of understanding” that the U.K. intended to be political commitments, but which the United States understood to be treaties). Indeed, one advantage of having domestic actors consider and rationalize political commitments would be the potential signaling effects to other nations, thereby avoiding such confusion in future cases.

3. Why (this) political commitment typology? Of course, we recognize the risks with any typology, and here, we do not classify for the sake of classifying. For reasons explained in more detail in the article, we felt the traditional characteristics used to distinguish treaties from political commitments (credibility, flexibility, secrecy, and domestic law) could not work for a constitutional analysis. Thus, we built from the ground up a set of criteria to distinguish political commitments that Congress should care about from those it should not. We concede that the typology we propose—formality, substance, organization, and autonomy—is not free from challenge (on reflection, the idea of splitting substance into normativity and precision makes some sense as would perhaps splitting formality into the level at which an instrument is concluded and the type of instrument produced). In the end, however, we wanted criteria that practitioners could employ, avoiding an overly contextual model (once you move beyond four factors to six, why not nine? Or ten?). That said, we welcome alternative or competing views on what the criteria should be to further refine the relationship between the Constitution and political commitments.

4. What is the constitutional significance of PCs? Ed makes a useful point about the dangers of relying too much on analogies. We readily admit that just because treaty-making deserves constitutional scrutiny, it does not follow that political commitments must as well. For our part, we used a functional analysis to show that the reasons for constitutional concern with treaty functions are no longer limited to treaty-making. This is particularly true given the numerous cases where treaty compliance and political commitment compliance implicate the same set of responses; i.e., in those (many) cases where treaty-makers decline to adopt legal tools for enforcing or implementing the treaty. To the extent that some political commitments serve the same functions (and implicate the same risks) as some treaties, that functional overlap does, we believe, provide a good reason for considering the executive’s authority to make political commitments as a matter of U.S. law.

Moreover, part of the controversy surrounding the Iraq SFA—and other political commitments—is the perception that the executive branch uses “unregulated” political commitment to circumvent constitutional treaty-making rules. Our approach would respond to this democracy problem without having to force political commitments into the treaty box where they clearly do not belong. Ed points out that our logic suggests that the Constitution might similarly care about unilateral executive action with international significance comparable to treaties or political commitments. This is an interesting observation, and suggests a need for future scholarship; there’s certainly room for some further theorizing here (perhaps Ed has found his next article?).

5. What makes this such a wonderful article? As nice as Ed’s closing words are to hear, we’ll defer this question to our readers. If beauty is in the eye of the beholder, we hope that some of you will appreciate the contribution our work makes, but we acknowledge that some (hopefully not too many of you) may disagree. We hope to hear from you all. And we look forward to hearing from and responding to Professor Ramsey later today when he joins the discussion.

http://opiniojuris.org/2009/04/15/political-commitments-a-response-to-professor-swaine/

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