John Bellinger Comments on “International Law at Home”

As a member of the Secretary of State’s Advisory Committee on International Law, both while I was Legal Adviser and under Harold Koh, Oona Hathaway has made very useful contributions to the work of the Legal Adviser’s office, especially on treaty issues. “International Law at Home,” which Oona has written together with her colleagues Sabria McElroy and Sara Aronchick Solow, continues in this same vein. I haven’t yet had a chance to read the article and its wealth of footnotes in great detail, but I will offer a few comments:

1. I was surprised by the Supreme Court’s Medellin 2008 decision. I spent four years at the State Department working on the case and spent my last day in government flying back from the Hague on Inauguration Day 2009 after receiving the judgment of the ICJ after Texas executed Jose Medellin. I had expected a majority of the Supreme Court to affirm the validity of President Bush’s February 2005 order directing state courts to comply with the ICJ’s 2004 Avena decision. I have heard a few die-hard critics suggest that the President must have expected that he would be reversed by the Supreme Court, but it does not make much sense to me that the President would order compliance with an ICJ decision knowing his order would be struck down. His order was decidedly unpopular in Texas and with conservatives, and he received little credit in the international community for his effort to comply with international law. To my knowledge, the President made his decision, based on the recommendation of his Secretary of State, because the U.S. is required under the U.N. Charter to comply with decisions of the ICJ and because demonstrating commitment to the Vienna Convention on Consular Relations (VCCR) would help protect Americans who are arrested in other countries, as I explained in my testimony last summer before the Senate Judiciary Committee in support of the Consular Notification Compliance Act of 2011.

2. The Medellin decision’s requirement for a clear textual statement that a treaty is self-executing has caused practical difficulties and uncertainties for the Legal Adviser’s office in the negotiation of new treaties and interpretation of existing treaties. As Oona and her colleagues point out, it is very difficult for US negotiators to insist on a general statement of self-execution in multilateral conventions which are implemented in different ways in different legal systems. (Mindful of the need for Senate approval and the careful scrutiny that all treaties are subject to by various groups in the U.S., State Department lawyers are already required to be the most meticulous negotiators of any country in the world, which contributes to the perception that the U.S. is generally skeptical of all treaties.) And the Supreme Court’s decision that the U.N. Charter is not self-executing, coming 63 years after its ratification, has sent State Department lawyers scrambling to determine how many other treaties might also not be self-executing.

3. Part III of the article — “How International Law Comes Home” — is an especially valuable and well-documented compendium of the different ways treaties are applied in U.S. courts.

4. Part IV of the article includes several practical suggestions for ensuring enforcement of treaties in U.S. courts. I agree that a Clear Statement Rule — a statement by the President and the Senate indicating whether they intend a treaty to be self-executing — should be the equivalent of the “explicit textual expression of self-execution” required by the Court in Medellin. To my knowledge, this practice is already being observed by the Executive branch and the Senate after Medellin. I am less enthusiastic, or at least less sanguine, about the article’s suggestion of comprehensive legislation to allow private rights of action under a wide range of treaties. A legislative enactment is required to implement certain treaties, including the UN Charter according to the Supreme Court. As noted above, I supported Senator Leahy’s Consular Notification Compliance Act in order to ensure the U.S. can comply with its treaty obligations and to ensure consular protections for Americans abroad. Unfortunately, that bill not only does not appear to be moving forward, but some Senators have even questioned whether the federal government has the constitutional authority to require state officials to give consular notice, even if required by the VCCR. Therefore, I suspect that the article’s recommendation for a “broad-based proactive statutory approach” will be a bridge too far for the Congress right now.

5. I would add a final suggestion for “How to Strengthen International Law At Home.” The American Society of International Law, foundations, and other interested groups should step up their efforts to educate members of Congress and state officials about the value to their constituents of certain treaties, such as the VCCR and other more technical international agreements. These officials need to understand better that the State Department does not negotiate these treaties in order to bestow unilateral benefits on other countries but because these treaties are in the interest of everyday Americans.