Questioning Political Commitments

by Edward Swaine

Thanks to Opinio Juris for hosting this discussion and to the editors of the Virginia Journal of International Law for their discerning taste in publishing such an excellent article.

Duncan Hollis (who has published widely both on the international aspects of treaties and on their domestic significance, and so is expertly situated to address this question) and Joshua Newcomer (already publishing like an old hand) have written an important article on an underappreciated phenomenon. On the theory that if it’s good enough for Derek, it’s good enough for me, I will structure my comments in a series of questions. The questions may seem critical, but they really pale in comparison to the article’s obvious strengths.

1. What is the international significance of political commitments?

Hollis and Newcomer (HN) begin their article by noting prominent examples of political commitments (PCs) (pp. 510-11), and add “[t]he popularity of political commitments reflects their utility to nation-states.” The ambiguity of that observation reflects a problem common to the understanding of international agreements. On the one hand, if such a device is used often, that might signal that it is useful – no activity is wholly costless, so it must be worth something. On the other hand, it may be inexpensive relative to its alternatives; employing a special sense of “utility,” we might say that the popularity of PCs reflects their utility in the same way that cheap talk does. In either event, I’m not confident that we have a robust sense of popularity. If every member of the UN struck one and only one bilateral arrangement with every other member, we should see over 18,000 of them; we could just as easily be struck by how rare PCs really are. And we do not know, of course, how significant they are in shaping state conduct. Forced to guess, one might hazard that PCs do much less than treaties that attach formal legal consequences, and that this is all by design.

There’s something else going on in the article’s argument that’s worth observing. HN clearly regard PCs as having international political significance – that is the premise for regarding them as having domestic legal significance. But they essentially dismiss, or at least decided not to resolve, the international legal significance of these arrangements. Because they duck the whole “soft law” depiction of PCs (while indicating doubts about it, see p. 520), we are left in the unusual posture of deeming something to have domestic legal significance – to our Constitution, no less – without any international legal significance, under CIL or otherwise. This is the polar opposite of most incorporation problems, in which dualist states fail to reflect completely in their domestic schemes the legal force of rules on the international plane. Offhand, I cannot think of many other issues in foreign relations law that fit that profile, and none with the constitutional attributes they give PCs (essentially, a defeasible executive branch authority). I bet there are some, though, and reflecting on those examples might help in thinking about the class of problem they address here.

2. What are the essential characteristics of a PC?

HN do an excellent job of articulating what they consider to be the positive characteristics of the commitments they describe (pp. 521 et seq.), but as with all attempts at line-drawing, they provoke some questions. First, with regard to “mutuality,” I am not sure why we care at all about the distinction between mutual and unilateral commitments. They recognize in note 52 that mutual commitments may be comprised of reciprocal unilateral ones, but I don’t follow why we should stop there – unilateral commitments have been the subject of important work on the international plane as well, based on their evident political (and, the ILC has explained, legal) significance, and as a class they generally simulate the same characteristics that make mutual PCs of domestic constitutional significance. The second attribute, “expectation,” may prove to be quite thin (imagine, e.g., a commitment to consider in the future the formulation of a PC). The third, “manifest intent,” seems troublesome to me (note to readers: here it means sort of the opposite of how others have used it, in which it connotes the intention to acquire legal force). The mutual desire to acquire “exclusively political (or moral) normative force” is what really distinguishes PCs from treaties, as they observe. They confront the issue of what to do with ambiguous cases (p. 524), without really grappling with what one should do with the also-rans: e.g., a commitment that State A views as a PC and State B views as establishing an international legal obligation. If the United States is State A, it may be difficult to resolve whether the commitment should be assimilated more to the circumstances of an international agreement, with the attendant constitutional obligations, or more to something like what HN depict.

3. Why (this) political commitment typology?

I usually have little appreciation for legal typologies, and react much as I would if my doctor spent our examination time trying to sort my symptoms into a novel little grid. But I saw, ultimately, why HN felt they needed one for the constitutional analysis. I couldn’t improve on what they have done, but wanted to signal some concerns about it. For example, the “formality” variable bundled together several characteristics, but I wasn’t too confident that the low-medium-high grid did much more than sort things along the lines of perceived credibility, which was supposed to be the dependent variable. With respect to “substance,” I thought two quite different concepts (normativity and precision) were crammed together, and that a two axis chart might have been better were they forced to share the space. As to “organization,” I found the ordering contestable: why commitments to future negotiations should be scaled higher than one-time commitments lost me at first, and tended to make sense only if it was shown varying with substance. As to “autonomy,” this was so closely tied to the notion of PCs that it was hard to sort out how much it was a defining feature of the class and how much an independent variable.

I also had some difficulty translating these variables into significance for the constitutional analysis, and HN might look to enhancing their analysis in future work on this topic. As it stands, their discussion (pp. 577-81) was perhaps too brief, given the significance to their topic. On the whole, it tended to veer from assuming that the variables were either of equal significance or diminishing them for under-explained reasons, and then translating these intuitions into particular (but not necessarily formal or substantive) constitutional roles for the President and Congress. (See, e.g., p. 578: “Congress must, however, take on *some* role if any one of these first three variables shifts to the high position.”) These struck me as debatable choices that were not being driven by the typology.

4. What is the constitutional significance of PCs?

Here my concern can be very simply stated: as a matter of theory, I am not sure how far one gets by identifying practice A, hitherto unregulated, as constitutionally analogous to practice B that *is* constitutionally regulated (here, treaties). I agree that domestic political actors have cause to care about PCs because of their potential consequences (p. 544), but much the same could be said of many phenomena; we instead need a theory of constitutional proximity (or an argument about the dynamic effects of leaving substitutes unregulated) to drive the point home. Take another example: a unilateral threat against another state may have far more significance for the US than any PC, and may violate international law just as would a declaration of war (or actual use of force) that is regulated by the Constitution, but would we say that it is equally subject to constitutional analysis, and that institutional authority was allocated on the same lines as the cognate constitutional authority? Just so with PCs and treaties.

5. What make this such a wonderful article?

I’ve said nothing about the domestic constitutional analysis, about which I had questions – e.g., what HN mean when they would “constitutionalize” PCs (p. 547); what drives the determination as to whether the power to employ PCs is plenary in character; and the normative and descriptive claims made about the constitutional custom of PCs. But rather than posing more questions that it would be hard for anyone to read, let alone answer, I’d rather answer one myself. What makes this such a wonderful article is that it considers all the dimensions of PCs – exploring what they mean for the international description of treaties; thinking about the circumstances under which they are constitutionally germane; examining the kinds of constitutional claims that might be made about them – in a way that is creative, thoughtful, and impressively systematic. That is, HN not only hit on a really interesting and fairly novel topic (no mean feat itself), but also think about it deeply and comprehensively, and chase down what their subject implies about international and domestic authority and long-running theoretical debates. The authors are to be commended.

http://opiniojuris.org/2009/04/15/questioning-political-commitments/

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