A Friendly Request for Paul Clement, the Solicitor General, and the Supreme Court — Please read up on what it means to sign a treaty!

by Duncan Hollis

Lots of commentary today here and elsewhere on yesterday’s oral arguments in Bond v. United States, with vote-counters quick to predict the Court will retreat from Missouri v. Holland and the question is only how much.  I have views on the merits, but, frankly I’m having trouble getting passed the fact that two Supreme Court justices, the Solicitor General, and one of his predecessor’s, Paul Clement, seem to not understand how treaty-making works.

Simply put, throughout the argument, there were statements indicating a real misunderstanding of what it means for the United States to sign a treaty like the Chemical Weapons Convention.  To be clear, sometimes U.S. signature of a treaty can have immediate legal effect — what’s known as “definitive signature” — which is most often witnessed in bilateral agreements on topics within the President’s executive powers.  But for centuries now (actually as a byproduct of the U.S. revolution itself), the general rule for multilateral treaties is that a State signing a treaty does not bind the State to the treaty’s provisions; a further act of ratification is required.  It is the State’s deposit of this instrument of ratification for a treaty that’s in force which triggers the obligation to comply with the treaty’s requirements.  Signing treaties subject to ratification — what is known as “simple signature” serves several useful purposes — it signals the conclusion of negotiations, the signing State’s intention to commence domestic procedures to join the treaty, and the identity of those who can participate in preparatory meetings.  But it does not obligate the State to implement, observe or otherwise comply with any, let alone all, of the treaty’s articles.  The only international legal obligation a signatory State assumes is one not to defeat the treaty’s object and purpose pending its consent to the treaty (in which case it is bound to comply with it) or an indication that it does not intend to ratify the treaty (see VCLT Art. 18).

But no one yesterday showed any sign that they understood the way treaty signature operates. Take Chief Justice Roberts opening inquiry to Solicitor General Verrilli (see transcript p. 27):

General, let’s suppose there’s a multilateral treaty, the — the international convention to ensure that national legislatures have full authority to carry out their obligations, i.e., that the national legislature has the police power.  And Congress passes a statute saying we have the authority to prosecute local crimes pursuant to this international convention that the President has signed.  Any problem with that?  (emphasis added)

Well, yes.  If the President had merely signed the treaty and not actually ratified it, the treaty power would not afford any basis for Congress’ legislation and this would be a straight-forward Article I case.  Indeed, it would be like Congress deciding to pass legislation implementing the Kyoto Protocol or the Rome Statute to the International Criminal Court — two treaties a U.S. President has signed without any further approval by the Senate, let alone ratification by the President (a ratification which, I’d note, the President is not required to do even if the Senate gives advice and consent to ratification).

Of course, the Chief Justice probably meant a treaty that the President had “ratified” — and Verrilli certainly took the question that way.  But I’m worried that both were a bit oblivious to the distinction. I can only imagine what people would say if a Supreme Court Justice has posed a hypo that confused a bill with a statute during an oral argument.  And if that’s not OK, why is it OK to make such a simple mistake about treaty-making?

Now, if this were an isolated incident, I’d be willing to write it off as a shorthand-error that both sides ducked around to get at the real — and certainly important — issues at the heart of the Bond case. But, this wasn’t the only misuse of treaty signature yesterday.

Early in the argument (p. 10), Justice Kennedy asked Paul Clement in reference to the Chemical Weapons Convention:

If you had been the President’s counsel, would you have advised him that it was unconstitutional to sign this treaty as written?  (emphasis added)

Here, I’m guessing Justice Kennedy wasn’t actually asking about President Bush’s decision to authorize signature of the Convention in 1993 (If I recall correctly, President Bush didn’t sign the treaty himself) but rather was thinking about the President Clinton’s decision to ratify the Convention in 1997.  It’s an important distinction.  The constitutionality of a President’s decision to sign a treaty is a VERY different question from the constitutionality of U.S. consent to a treaty.  As noted above, treaty signature only requires the President to be comfortable that the United States won’t act to defeat the treaty’s object and purpose, not that there’s domestic legal authority to implement its provisions. Indeed, I believe a President could sign a treaty that was unconstitutional on its face, assuming the Administration would be willing to pursue a constitutional amendment prior to actual ratification (something we’ve not done in the United States, but which is not terribly uncommon in other nations’ treaty law and practice).  Of course, it doesn’t seem Justice Kennedy was actually asking about the constitutionality of signing the Chemical Weapons Convention so much as the United States assuming obligations under it (which, again, is how Paul Clement took the question).

Then there’s the Solicitor General’s use of the term ‘signatory’ on page 47.  He says “this convention is a convention that all but four nations on Earth have signed.” (emphasis added)  Wrong again. See the status page for the Chemical Weapons Convention.  By my count there are 27 states that never signed the Convention (including Syria, to which I’ll return in a moment).  Now, most of those States have acceded to the Convention (the process of consenting to be bound where you’re not in a position to ratify), so it’s a mistake to lump those who have yet to join the Convention with those who did not sign it.

And just when you think the argument’s over and they can’t make any more mistakes, Paul Clement offers up this:

Now, the government says you can’t do that because that’s going to mess up what’s going on in Syria.  With all due respect, I assume that the issue in Syria is whether or not the nation state of Syria is doing something that would violate the convention if, contrary to fact, they were a signatory to this convention.”  (emphasis added)

Well, as I already said, Mr. Clement is right that Syria did not sign the Chemical Weapons Convention.  But if they had, it’s not clear that signature would have been the defining issue for the United States.  Rather, the issue back in August wasn’t whether Syria’s use of chemical weapons was an act defeating the object and purpose of the Convention but whether it violated the customary international law prohibition on chemical weapons’ use.  In any case, the issue today is one of Syria’s compliance with the Convention’s actual terms.  Why?  Well, because Syria acceded to the treaty on September 14 with legal effect 1 month later, meaning that as of October 14, 2013, Syria is bound under international law to not violate the convention, Mr. Clement’s implication to the contrary notwithstanding.

Now, I recognize that some of this stuff may seem esoteric and arcane to the general public.  And, although I don’t like to see it, I’m sympathetic when the media confuses issues of who ratifies a treaty (hint: it’s the President not the Senate as is so often reported) or what it means to sign a treaty like the Arms Trade Treaty as Secretary Kerry did a few weeks back.  But, the Supreme Court regularly engages in matters arcane and complicated.  They should get this stuff right.

What’s most worrying to me here is the possibility that there’s a whole lot else about treaties that the members of the Court don’t understand.  If you don’t know the basic distinction between simple signature and ratification (let alone entry into force), are you going to find it any easier to sort out the distinction between a reservation and an understanding?  What about the rules on treaty interpretation, which are much more complicated than the rules on treaty formation?

Bond has the potential to be a big foreign relations law case.  And, whatever you think the ruling on the merits should be, I’d hope we can all agree that the Court shouldn’t make its ruling based on errors or misunderstandings of how treaties work.  Fortunately, the Supreme Court is a uniquely smart and responsible group of individuals.  So, I’m sure that if someone (Hello to all you Supreme Court clerks reading this post!) takes the time to make sure they understand the relevant concepts and procedures, the Court can and will avoid future errors like those on display yesterday.  We’d certainly expect the Court to do that with matters of U.S. domestic law and regulation.  So, I hope it won’t be too much trouble to ask it for the United States’ treaty law and practice as well.

[Update: I've revised the post to acknowledge that the Chemical Weapons Convention was signed on January 13, 1993, in the last days of the George HW Bush administration, and not during the Clinton administration.]

 

http://opiniojuris.org/2013/11/06/friendly-request-paul-clement-solicitor-general-supreme-court-please-read-means-sign-treaty/

8 Responses

  1. Absolutely right.   Not only are they unfamiliar about the Supremacy and Offense clauses, they are really thinking about the fiasco in Medellin.   I couldn’t read all the briefs, but what I read was very weak in setting forth the basic Constitutional arguments.   That is why I suggested that you experts try to file something to help the clerks.  Happy to help, if you want it.  I am already admitted.

  2. Oh, and they may want to get Sandy’s notes on the reservations from the National Archives?   See http://wmdcenter.dodlive.mil/files/2012/01/CSWMD-Case-Study-4.pdf 
     
     That is, if he didn’t stuff them in his socks….

  3. I would not assume that Roberts knew the difference between sign and ratify, since he stated about five times in Medellin that the Senate ratified a treaty (which is nonsense under the Const., since the Pres. ratifies having obtained advice and consent of the Senate IF the Pres. wants to do so) and stated that Congress (yes, the full Congress) ratifies a treaty!
    It is increasingly evident that none of the Justices took a course in international law or understood such if they did, much less constitutional law.

  4. Response: To be clear, sometimes U.S. signature of a treaty can have immediate legal effect — what’s known as “definitive signature” — which is most often witnessed in bilateral agreements on topics within the President’s executive powers.  .  .  . The constitutionality of a President’s decision to sign a treaty is a VERY different question from the constitutionality of U.S. consent to a treaty.
    That’s not necessarily the case. States are required upon signature not to “defeat” the object and purpose of a treaty. So there are always some initial legal effects and consequences.
     
    In Reid v. Covert the Court held that treaties, like statutes, can’t be employed to permit or condone acts that are prohibited by the Constitution itself, because treaties are not listed in Article V as a method of amending the Constitution.

  5. Thanks to all for the comments.

    Re Hostage, I was never suggesting that a treaty itself could form a basis for amending the Constitution.  My point was that a country can always sign a treaty, amend its Constitution through the appropriate procedures, then ratify the treaty once it has done so.  European States have done this with some frequency.  In other words, I think the President has a lot more constitutional leeway to sign treaties subject to ratification even one that would violate the Constitution if the United States were a party, precisely because signing a treaty does not make one a party.  Of course, none of this was at issue in Bond since the US is not just a signatory to the Chemical Weapons Convention, but also a party to it.   

  6. Response…I was never suggesting that a treaty itself could form a basis for amending the Constitution.
     
    Okay, but there are still a few here who assume that the delegation of a limited treaty power somehow renders the 9th and 10th amendments completely moot.

  7. Hostage: check the express terms of the 10th Amend. (2 reasons why the treaty power trumps state police powers) and the many Sup. Ct. cases re: the reach of the treaty power and, as in Reid v. Covert, the 10th Amend. “is no barrier.”

  8. Hostage, I concur with Jordan, and would be willing to go even further: the survival of the nation may require, in some cases, that the treaty power actually overrides constitution. And I would be willing to posit that this is actually the original intention of the Founders.
    Arguendo, let us assume that it is 1813, and the war against Britain is fearing even worse than it actually did. In the peace negotiations, the British demand Massachusetts to be ceded. Otherwise, the hostilities will continue and complete destruction of the nation is at hand. So, in our hypothetical, the President and Senate sign and ratify a treaty ceding Massachusetts, against the wishes of that state. Naturally, this deprives Massachusetts of its seats in the Congress and its citizens of the US citizenship, and hands over the sovereignity of that former state to the Great Britain, violating several clauses of the Constitution.
    So, according to Duncan Hollis, such act would require the constitutional amendement process. But the Constitution is not a suicide pact, and the founders were well aware that the contemporary diplomatic practice often forced very strenuous treaties upon countries. So, when they gave the Union the treaty power, they surely meant with “supreme law of the land” that any ratified treaties have an equal, and even higher power than the Constitution. Otherwise, the survival of the nation might be endangered.

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