[David Sloss is the Professor of Law and Director of the Center for Global Law and Policy at Santa Clara Law School]

In Samantar v. Yousuf (2010), the Supreme Court directed lower courts to apply common law rules to resolve immunity defenses raised by individual foreign government officers, except in cases where a treaty provides the controlling rule. The Court remanded Samantar to the lower court to decide, in the first instance, the proper content of the common law rule. The Fourth Circuit heard oral argument on this issue last week.

The defendant in Samantar raised both a status-based immunity defense and a conduct-based immunity defense. This post focuses on conduct-based immunity defenses in cases, like Samantar, where plaintiffs raise claims under the Alien Tort Statute (ATS) and/or the Torture Victim Protection Act (TVPA). I propose a simple, straightforward rule that courts can apply to resolve conduct-based immunity defenses in such cases—use the same rule that courts apply when federal, state, and local government defendants raise qualified immunity defenses to domestic constitutional claims. Under that rule, which I call the Harlow rule, a defendant is entitled to immunity unless he or she violated “clearly established . . . rights of which a reasonable person would have known.” Harlow v. Fitzgerald (1982).

There are three reasons for courts to adopt the Harlow rule as the controlling rule for conduct-based immunity defenses in ATS/TVPA cases. First, U.S. courts are very familiar with the Harlow rule: they apply it routinely in 1983 cases and in Bivens cases. Hence, application of a similar rule in ATS and TVPA cases is likely to produce a consistent and coherent body of case law.

Second, the Harlow rule is substantially similar to the “Sosa test” that courts apply to determine whether a plaintiff has a federal common law cause of action under the ATS. See Sosa v. Alvarez-Machain (2004) (holding that plaintiffs can bring federal common law claims under the ATS only for violations of a sub-set of international law norms that have “definite content and acceptance among civilized nations”). In essence, Sosa instructed the lower courts not to recognize a federal common law cause of action for violations of international law unless the plaintiff alleges violation of a “clearly established” international norm. Thus, application of the Harlow rule in ATS cases would promote judicial efficiency because courts could apply essentially the same test to determine whether the plaintiff has a cause of action and whether the defendant has a valid immunity defense.

Third, application of the Harlow rule in ATS and TVPA cases would promote U.S. foreign policy interests. For the past few decades, a key goal of U.S. foreign policy has been to promote universal adherence to fundamental human rights norms. If U.S. courts grant immunity to individual defendants who violate clearly established human rights norms, the courts would undermine the longstanding U.S. policy of promoting universal adherence to those norms.

My proposal to apply the Harlow rule in ATS and TVPA cases is likely to provoke three principal objections. First, one might argue that the Constitution grants the executive branch authority to make immunity determinations in individual cases, and that courts are required to defer absolutely to the executive branch on these issues. This argument is not persuasive. As Professor Wuerth has shown, careful analysis of constitutional text and structure refutes the claim that the Constitution grants the President final authority to decide whether an individual defendant in a particular lawsuit is entitled to conduct-based immunity. See Ingrid Wuerth, Foreign Official Immunity Determinations in U.S. Courts: The Case Against the State Department, 51 Va. J. Int’l L. 915 (2011). Moreover, Professor Keitner’s analysis of judicial decisions from the late eighteenth century shows that the Founding generation believed that resolution of immunity defenses in individual cases was a judicial function, not an executive function. See Chimène I. Keitner, The Forgotten History of Foreign Official Immunity, 87 N.Y.U. L. Rev. xxx (forthcoming 2012) (available on SSRN).

Even if the Constitution does not require judicial deference to the executive branch, one could argue that a judicial policy of case-by-case deference to the State Department is desirable because it is likely to advance U.S. foreign policy interests. I respectfully disagree. For various reasons, the State Department has a deeply rooted institutional bias that privileges expedient, short-term goals over the nation’s long-term interest in promoting universal adherence to fundamental human rights norms. There are compelling separation-of-powers reasons why the courts should act as a check on this unfortunate, short-sighted bias of the State Department bureaucracy. The United States needs one branch of the federal government to adopt a long-term view, rather than a short-term view. The courts are well positioned to serve this function because they are insulated from short-term political pressures.

The final objection to the proposed Harlow rule is that it is inconsistent with customary international law. Some scholars claim that customary international law requires the United States to grant immunity to foreign government officials for all acts performed in an official capacity. See Curtis A. Bradley & Laurence R. Helfer, International Law and the U.S. Common Law of Foreign Official Immunity, 2010 Sup. Ct. Rev. 213. In my view, the customary international law rule is more indeterminate than some scholars have claimed. It is clear that customary international law requires states to recognize some form of conduct-based immunity for acts performed in an official capacity by foreign government officers. Moreover, customary international law may not preclude states from granting conduct-based immunity to government officers who violate clearly established human rights norms. However, the argument that customary international law requires states to grant conduct-based immunity—even when officers violate clearly established norms—is not persuasive. There is not sufficient evidence of state practice to support a claim that customary international law requires immunity in these circumstances. Hence, application of the Harlow rule in ATS and TVPA cases would not be inconsistent with the nation’s international legal obligations.

It is a privilege to comment on the excellent article by Professor Hathaway and her co-authors entitled “International Law at Home: Enforcing Treaties in U.S. Courts” (“IL at Home”). The article makes several important contributions to the growing body of scholarship on the domestic application of treaties in US courts and I agree with many of the authors’ central claims. In this brief comment I will focus on one of the more important claims that, in my view, is not entirely persuasive. IL at Home asserts that a single sentence in the Supreme Court’s decision in Medellín v. Texas “has led to a significant shift in U.S. courts’ approach to Article II treaties.” IL at Home, at 70. The sentence at issue says there is a “background presumption . . . that [treaties] . . . do not create private rights or provide a private cause of action in domestic courts.” Medellín, at 506 n.3.

I believe that Medellín‘s presumption against private rights of action has had less influence — or perhaps a different type of influence — than the authors claim. To understand why, it is necessary to discuss judicial practice before Medellín. According to IL at Home, in the period from World War II to Medellín, “the lower federal courts developed a bifurcated approach to treaty enforcement.” Id. at 64. They “continued to infer a private right of action for treaties that involved economic or commercial relations. But they began taking a more skeptical approach toward treaties . . . regulating the relationship between the state and the individual.” Id. at 64-65.

This claim is mostly right, but the authors fail to specify the lines between the bifurcated categories with adequate precision. As I have written elsewhere, treaties regulate three types of relationships: horizontal relations between states; vertical relations between states and private parties; and transnational relations between private parties that cross national boundaries. See David Sloss, Treaty Enforcement in Domestic Courts: A Comparative Analysis, in THE ROLE OF DOMESTIC COURTS IN TREATY ENFORCEMENT: A COMPARATIVE STUDY (Sloss ed., 2009). US courts never had a major role in enforcing horizontal treaty provisions. From the Founding until World War II, domestic courts played a significant role in enforcing both vertical and transnational treaty provisions. Since World War II — or at least since publication of the Restatement (Second) of Foreign Relations Law in 1965 — US courts have been hesitant to enforce vertical treaty provisions, but they have continued to enforce transnational treaty provisions quite vigorously. See David Sloss, United States, in THE ROLE OF DOMESTIC COURTS, supra.

I would like to thank Opinio Juris for hosting this book discussion, and I would like to thank the several contributors for their insightful and provocative posts. This post responds specifically to Andrew Kent’s skeptical reaction to David Golove’s claim that the judiciary had an active role in policing executive branch compliance with the laws of war. I believe that the book provides a fair amount of support for Professor Golove’s claim, at least through the Spanish-American war.

After the Quasi-War with France, the Supreme Court invalidated wartime seizures of property by the executive in United States v. Schooner Peggy, 5 U.S. 103 (1801) and Little v. Barreme, 6 U.S. 170 (1804). In the War of 1812, the Court invalidated wartime seizures of property in Brown v. United States, 12 U.S. 110 (1814) and The Nereide, 13 U.S. 388 (1815). After the Civil War, the Court invalidated a wartime seizure of property in United States v. Padelford, 76 U.S. 531 (1870). During and after the Spanish-American War, the Court invalidated wartime seizures of property in The Buena Ventura, 175 U.S. 384 (1899), The Paquete Habana, 175 U.S. 677 (1900), and MacLeod v. United States, 229 U.S. 416 (1913). (This list is not comprehensive.)

In all these cases, the executive relied at least partly on the law of war to justify a seizure of property. And in all these cases, the Court ruled against the executive and held that the challenged seizure was improper. Hence, all these cases provide at least some support for the claim that the Supreme Court, before World War I, played an active role in policing executive compliance with the laws of war.

On the other hand, there are specific features of each of these cases that complicate the story.
In many of the cases cited above, the Court relied on something other than the law of war to constrain the President. In Schooner Peggy the key constraint was a treaty; in Little v. Barreme it was a statute; in Brown it was the Constitution. Thus, all three cases involved constraints on the executive’s wartime power, but the law of war did not provide the key constraint.

In other cases, such as U.S. v. Padelford and The Buena Ventura, the Court applied the law of war to constrain the executive, but it did so indirectly. In Padelford the Court invoked the law of war to help interpret a statute. In The Buena Ventura the Court invoked the law of war to help construe a Presidential proclamation. In neither case did the Court apply the law of war directly as a constraint on executive power.

In The Nereide and MacLeod v. United States, the law of war arguably did provide the key constraint on executive power. However, The Nereide involved a seizure by a privateer, not a military officer. And MacLeod involved collection of import duties in a zone of military occupation, not a seizure of goods from the enemy. Thus, The Paquete Habana may be the only case where the Supreme Court applied the law of war directly to invalidate a wartime seizure of enemy property by a U.S. military officer.

In my view, though, the key point is that in all these cases the Court employed its judicial power as a constraint on wartime actions of the executive in situations where the President or his representative invoked the law of war to help justify those actions. In this sense, the above-cited cases support the Court’s conclusion in Hamdi that war is not “a blank check” for the President. Moreover, they support the conclusion that the judiciary has some responsibility to ensure that the President exercises his wartime authority in a manner that is consistent with a web of constraints created by the Constitution, statutes, treaties and the customary laws of war.

Of course, the politico-military context of the war on terror is quite different from any prior wars. Thus, even if we can agree on the history, there is much room for intelligent and spirited debate about the contemporary lessons to be drawn from that history. Our main goal in the book was to help promote a more well-informed debate. I am pleased that most commentators seem to agree that we succeeded in that modest goal.

I wanted to react quickly to two of the other items posted earlier today. First, Paul Stephan makes the point that Justice Breyer’s dissent is “very problematic.” I agree. Breyer’s opinion does not make a helpful contribution to untying the “Gordian knot” of non-self-execution doctrine.

Second, Curt Bradley claims that the Court’s decision effectively reserves “to Congress the determinations of whether and how to comply with the ICJ decision.” With due respect for Curt, whose views are usually very insightful, I think this assessment is wrong. Even if the Court held that courts are obligated to enforce the Avena decision, Congress would retain the power to decide “whether and how to comply with the ICJ decision,” because Congress could enact a statute to override the Court’s decision. The real issue here concerns default rules — what should the courts do in the absence of congressional action? The Court effectively endorses a default presumption against judicial enforcement (although the Court does a very poor job of explaining when that default presumption applies). In contrast, the Framers endorsed a default presumption in favor of judicial enforcement, as evidenced by the constitutional text specifying that “the judges in every State shall be bound” by treaties. Thus, the Court’s decision does not empower Congress. To the contrary, it effectively amends the Supremacy Clause by instructing state courts not to enforce treaties — or not to enforce some ill-defined category of treaties — in the absence of Congressional action.

In Medellin, the Court held “that neither Avena nor the President’s Memorandum constitutes directly enforceable federal law . . . .” This comment focuses on the effect of the Avena judgment itself, and disregards the President’s Memorandum. The majority was undoubtedly correct to hold that Avena is not “directly enforceable federal law.” In fact, Avena is not federal law at all. The Constitution is federal law. Statutes are federal law. Treaties are federal law. But decisions of the ICJ are not federal law.

The Court erred, however, by concluding that Article 94 of the U.N. Charter is not federal law. See Roberts, slip op. at 10 (stating that the U.N. Charter does not create “binding federal law in the absence of implementing legislation”); id. at 24 (“the particular treaty obligations on which Medellin relies do not of their own force create domestic law”); id. at 31 (“A non-self-executing treaty, by definition, is one that was ratified with the understanding that it is not to have domestic effect of its own force.”) The Chief Justice, unfortunately, confused two entirely separate questions: whether Article 94 of the U.N. Charter is federal law, and how the treaty obligation is to be executed.

Article 94(1) of the Charter stipulates: “Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.” Chief Justice Roberts tried to answer the question whether Article 94 is federal law by analyzing the text of the treaty. This is like trying to answer a question about Venezuelan law by looking in the U.S. Code. The question whether the U.N. Charter is federal law is a question about U.S. constitutional law. Accordingly, the answer is to be found in the text of the Constitution, not in the text of the treaty. The Constitution states that “all Treaties made . . . under the Authority of the United States, shall be the supreme Law of the Land.” Since the U.N. Charter was made under the authority of the United States, it is the supreme Law of the Land: i.e., it is federal law. By deciding that the U.N. Charter is not federal law, the Court has effectively rewritten the text of the Supremacy Clause to say that treaties are the Law of the Land unless we, the Supreme Court, decide otherwise.

Given that Article 94 is federal law, the next question is how to execute the U.S. treaty obligation. As noted above, Article 94 obligates the U.S. to comply with the ICJ decision “in any case to which it is a party.” There is no dispute that the U.S. is obligated to comply with the ICJ decision in Avena because the U.S. was a party in Avena. At the risk of over-simplifying, one can say that Avena obligates the U.S. to provide a judicial hearing for Medellin for the purpose of deciding whether he was prejudiced by the violation of his rights under Article 36 of the Vienna Convention on Consular Relations (VCCR). So, in the present case, the question of how to implement the U.S. obligation under Article 94 becomes a question of how to implement the U.S. obligation to provide a judicial hearing for Medellin.

In this regard, it is helpful to recall Justice Iredell’s opinion in Ware v. Hylton, 3 U.S. 199 (1796). In Ware, Justice Iredell distinguished between executed and executory treaty provisions. Treaty provisions are “executed” if “from the nature of them, they require no further act to be done.” Id. at 272. In contrast, executory treaty provisions require some further action by the U.S. government. Justice Iredell divided executory treaty provisions into three groups: legislative, executive, and judicial. See id. at 272-73. Whether an executory treaty provision requires legislative, executive, or judicial action depends on the nature of the international obligation, and the capacity of the respective branch of government to implement that obligation.

Chief Justice Marshall’s analysis in Foster v. Neilson, 27 U.S. 253 (1829), was entirely consistent with Iredell’s analysis in Ware. Marshall thought that Article 8 of the 1819 treaty with Spain was executory because the specific treaty language – “shall be ratified and confirmed” – required further government action. (It bears emphasis that Marshall was drawing a distinction between executory and executed treaty provisions, a distinction that depended on whether the treaty required further government action. See David Sloss, Non-Self-Executing Treaties: Exposing a Constitutional Fallacy, 36 U.C. Davis L. Rev. 1, 19-24 (2002)). The specific government action required by the treaty, in Marshall’s view, involved the transfer of real property from one private party to another private party. Legislative action was necessary because the treaty obligated the U.S. to convey title to real property, and the legislature was the only branch of government competent to execute that obligation. Foster neither states nor implies that legislative action is always necessary to execute an executory treaty provision. Thus, the Court in Medellin erred by construing Foster to mean that a non-self-executing treaty always requires legislative implementation. See Roberts slip op., at 30. As Justice Iredell explained in Ware, some executory treaty provisions require legislative action, but others require executive or judicial action, depending on the nature of the international obligation.

The application of this framework in Medellin is very straightforward. As noted above, the U.S. obligation under Avena and Article 94 of the U.N. Charter is to provide a judicial hearing for Medellin. There is only one branch of government capable of executing that obligation: the judicial branch. As Justice Breyer noted in his dissent, the obligation could be implemented either by the federal judiciary or the Texas state courts, but there are a variety of factors that weigh in favor of state court implementation. Regardless, the correct application of Foster and Ware to the facts of Medellin leads inexorably to the conclusion that Article 94 is an executory treaty provision that requires judicial execution because the judicial branch is the only branch competent to execute the U.S. obligation to provide a judicial hearing for Medellin. This does not mean that every ICJ decision is directly enforceable in U.S. courts. As Justice Iredell explained in Ware, it depends on the nature of the obligation that flows from the particular ICJ decision.

The fundamental flaw in the Court’s analysis in Medellin stems from its failure to distinguish between two very different questions: 1) is Article 94 of the U.N. Charter federal law?; and 2) what is the appropriate mechanism to execute U.S. treaty obligations under Article 94? The Court conflated these two questions by combining them into a single question: whether Article 94 is self-executing. This muddled analytical approach is symptomatic of a broader trend in U.S. jurisprudence that can be traced, in part, to the rise of legal realism a century ago. Justice Holmes thought that a so-called “law” is not really “law” if it can’t be enforced. Henry Hart argued persuasively that effective application of Holmes’ insight necessarily requires a two-step analysis: 1) is the relevant instrument a “law”?; and 2) what is the best way to enforce that law? Under Hart’s approach, the assumption is that all laws must be enforced in some way because the very nature of “law” is that it must be enforced.

Unfortunately numerous courts and commentators have twisted Holmes’ idea to produce the opposite result. They think that courts should simply bypass step one, proceed directly to step two, and ask whether the relevant law explicitly requires judicial enforcement. Under this approach, if the law does not explicitly require judicial enforcement, courts should refuse to enforce it. Whereas Holmes believed that the idea of an “unenforceable law” is a contradiction in terms, modern realists have perverted Holmes’ key insight and produced a wide range of judicial decisions that effectively render valid laws unenforceable. Medellin is the latest in this misguided series of decisions. In Justice Roberts’ perverted version of Holmesian realism, Article 94 of the U.N. Charter is not domestically enforceable (without legislative action) because it does not specify a domestic enforcement mechanism. Since Article 94 is not domestically enforceable, it is not federal law – even though the Constitution states unambiguously that it is federal law!!! Justice Holmes is rolling over in his grave.

[Opinio Juris welcomes Professor David Sloss as a guest respondent. Professor Sloss is an expert on foreign relations law (among other areas) and he teaches at Saint Louis University School of Law. His recent articles can be found here.]

I want to thank John Bellinger for his recent posts on this blog. He has presented a very thoughtful and articulate legal defense of the government’s policies in the war on terror. Much of his legal analysis is persuasive. Even so, I am not wholly convinced. Rather than focusing on the details of particular legal arguments, though, I’d like to approach these issues from a slightly different perspective.

One reason for skepticism about some of the government’s legal claims is that the government has consistently attempted to insulate its legal arguments from judicial review. Numerous petitioners have brought a variety of claims in U.S. courts, challenging various aspects of the government’s policies on the grounds that those policies are inconsistent with U.S. obligations under international law. The government has consistently tried to prevent the courts from adjudicating the merits of these claims, both by introducing legislation to limit the jurisdiction of federal courts (the Detainee Treatment Act and the Military Commission Act) and by raising various jurisdictional and procedural objections in concrete cases. If the government really believes in the merits of its own legal positions, why is it afraid to subject its policies to legal scrutiny in a judicial forum? Indeed, if the government wants to persuade the rest of the world that the United States is genuinely committed to complying with its international legal obligations, it should welcome the opportunity to submit its policies to judicial scrutiny.

No doubt, some readers will object that it is unrealistic to expect the government willingly to subject its policies to judicial scrutiny. In fact, though, historical materials demonstrate that there was a time when the U.S. government invited judicial scrutiny of its wartime foreign policies. In the period between 1793 and 1796, France was at war with England, Spain and other European powers. The United States adopted a declared policy of neutrality. But the United States had previously entered into treaties with France that obligated the U.S. to adopt a pro-French tilt in certain respects. During this period, numerous private claimants filed claims in U.S. courts that presented tensions between the United States’ treaty commitments to France and its legal obligations as a neutral state. The claims generally centered around the activities of French privateers who had captured British and Spanish merchant ships. In the typical case, a British or Spanish ship owner (or a consular official representing the owner’s interests) would file suit against a French privateer, seeking restitution of a captured vessel, and alleging that the privateer had infringed U.S. neutrality. In response, the French privateer would invoke the 1778 treaty between the U.S. and France as a defense.

These cases from the 1790s are similar to modern war on terror cases in one key respect – in both sets of cases, questions of private rights are intimately bound up with questions of international law and U.S. foreign policy. In the 1790s, the British and French Ambassadors filed repeated diplomatic protests with the Secretary of State related to these cases. The French complained that the U.S. was not honoring its treaty commitments. The British complained that U.S. actions contravened its declared neutrality policy and its obligations as a neutral state. Surprisingly, the executive branch responded to these diplomatic protests by telling the French and British ambassadors that these were judicial questions to be resolved by litigation in U.S. federal courts. In effect, the executive branch willingly delegated to the judicial branch the responsibility for balancing the competing demands of U.S. treaty commitments to France and U.S. neutrality policy.

It is not entirely clear why the executive branch referred foreign ambassadors to U.S. courts, but let me suggest the following explanation. I believe that the Washington Administration wanted to persuade other countries that the United States took its international legal obligations seriously. Administration officials recognized that if the executive branch tried to resolve the disputes between French privateers and British ship owners — which is basically what the French and British Ambassadors asked the government to do — the British would protest if we ruled in favor of the French, and the French would protest if we ruled in favor of the British. By referring both sides to the courts, the executive could plausibly claim that it was simply trying to ensure that the relevant law would be applied in an evenhanded manner by a neutral adjudicator. This approach was quite successful: the Washington Administration was able to persuade both sides in a heated war that the United States was committed to complying with its international legal obligations.

Obviously, the current situation differs in significant respects from the problems confronted by the Washington Administration. Even so, there is an important lesson to be learned here. If the government wants to persuade the rest of the world that the United States is committed to complying with its international legal obligations, it can promote that objective by inviting judicial scrutiny of U.S. policies in the war on terror – at least in cases where those policies are intimately bound up with issues of private rights and international law. In contrast, continued resistance to judicial oversight reinforces the suspicion that the government is not persuaded by its own legal arguments.

[Opinio Juris has requested David Sloss' permission to post this email he published on a international law list serve and he has kindly obliged]

I finally was able to read the Texas court’s decision in Medellin. It strikes me that the court almost completely ignored the strongest argument in favor of the petitioner. That argument can be summarized as follows.

The United States has an obligation under Article 94 of the U.N. Charter to “comply with the decision of the International Court of Justice” in the Avena case. Under the express terms of the Constitution, Article 94 is the “supreme Law of the Land,” and “judges in every state shall be bound thereby.” Therefore, the Texas Court of Criminal Appeals has a constitutional duty to comply with the ICJ decision in Avena. Note that it is immaterial, for purposes of this argument, whether the Avena judgment is supreme federal law. I would maintain that the Avena judgment is not supreme federal law. Even so, by virtue of Article 94 and the Supremacy Clause, the Texas court still had a constitutional duty to comply with the ICJ decision.

No doubt, some will argue either that Article 94 is “not self-executing,” or that Article 94 does not create “individually enforceable rights,” or both. But that argument merely serves to obfuscate the main issue. The claim that Article 94 is “not self-executing” is utterly meaningless, unless one defines the term. Moreover, whatever it means to say that Article 94 is “not self-executing,” it is beyond dispute that Article 94 is the “supreme Law of the Land,” and that “judges in every state are bound thereby” because the Constitution says so. Of course, this does not mean that Article 94 is judicially enforceable in every case. Rather, Article 94 is judicially enforceable only in those cases where it provides an applicable rule of decision. The number of cases litigated in U.S. courts where Article 94 does provide an applicable rule of decision is very, very small, but it’s not zero. Medellin is one of the few cases where Article 94 does provide an applicable rule of decision. In my view the Texas court’s decision violated both Article 94 and the Supremacy Clause.