I’m pleased to flag the fact that the American Journal of International Law has recently launched its own blog — AJIL Unbound. Interested readers can find out more about the project and the Journal‘s interest in reader feedback here. In the meantime, AJIL Unbound is currently hosting an on-line discussion of the U.S. Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. in concert with the Journal‘s print-based Agora on that same case in its October 2013 issue. I look forward to reading these posts and also to seeing how AJIL Unbound develops and evolves in the weeks and months ahead.
Author Archive for
We here at Opinio Juris were saddened to hear of the passing last week of Georgetown Professor Barry Carter. Our condolences go out to his friends and family. Georgetown Dean William Treanor has a tribute to Barry here.
For my part, I’ve used Barry’s textbook (which he originally authored with Philip Trimble, then Curt Bradley, and now Allen Weiner) ever since I started teaching international law. Despite a heavy U.S. emphasis, it offers a compelling and highly accessible introduction to international law. I know it’s part of the reason so many students find themselves drawn to a career in international law. In recent months, I’d enjoyed getting to know Barry more as we both served as Advisers to the 4th Restatement on Foreign Relations Law project. I enjoyed his many comments to that effort and I know his contributions there will be sorely missed.
Readers can leave their own memories and tributes to Barry on a page at Georgetown Law’s website here.
News out of Texas today that it executed Edgar Tamayo, a Mexican national, for killing a police officer, Guy Gaddis. Tamayo was one of the nationals Mexico named in the Avena case. Thus, he fell within the scope of the ICJ’s order that the United States provide ‘review and reconsideration’ of the conviction and sentence of named Mexican nationals in light of the U.S. failure to provide a right to consular access within a reasonable time of their arrest pursuant to the Vienna Convention on Consular Relations (VCCR). Thus, whatever Texas’ interests in ensuring justice was served on someone who killed a police officer, the execution is a clear violation of U.S. obligations under the ICJ Statute (Art. 59), the UN Charter (Art. 94), and, of course, the VCCR itself (Art. 36), given US adherence at the time to the VCCR’s Optional Protocol.
This marks (I believe) the third Mexican national Texas has executed since the ICJ issued its decision in Avena, and since the U.S. Supreme Court declared in Medellin that the US treaty obligations in question are non-self executing, meaning that as a matter of U.S. constitutional law, the Executive is powerless to stop Texas absent further implementation of the VCCR (or other treaties) by federal legislation. The prospects of Congressional action to implement Avena, however, seem pretty dim at this point.
So, what happens now? Will Mexico continue to treat each new execution with the same weight as it has previously? There are still dozens of Mexican nationals to whom the Avena decision had purported to offer relief. I also wonder if the State Department will maintain the same level of lobbying against these executions or if its statements will become more a matter of lip service? I’d note, for example, the extent of federal lobbying seems to be lessening over time — compare Kerry’s comments on Tamayo’s case with the 2008 efforts by the White House, State, and Justice Department to delay Mr. Medellin’s execution). In other words, will the regularity with which these executions (and the arguments surrounding them) seem destined to occur diminish their visibility for either the States themselves or their nationals? Is Mexico’s claim against the United States strengthened or weakened by the United States’ continued inability (or some might say unwillingness) to comply with its international obligations? As a formal matter, one would have to insist that Mexico has more to complain about with each execution. But, on a more practical level, I’d argue Mexico’s chances for relief are likely to diminish the more the international community comes to expect continued U.S. non-compliance with the Avena judgment. That may not be the right result, but I’m thinking it’s the most likely one. What do readers think? Am I missing something?
Well, it’s not exactly a secret treaty in the sense that yesterday, the news wires were abuzz about the fact that the United States, Iran and five other world powers concluded an agreement to implement Iran’s earlier November deal on its nuclear program. But, what’s being held back is the actual text of the deal. There’s not many details (the only story I found on this was here). Still, at this point it’s not clear whether or not yesterday’s implementing agreement is actually a treaty or just another political commitment like the deal last November? Assuming it is legally binding, it’s also unclear as to why the text is not being released? Is this just a temporary delay pending a good scrub by treaty lawyers of the final text and any language/translation issues? Or, is it that some of the implementation agreements’ contents are being treated as classified by one or more of the participants/parties such that they have no intention of ever releasing the text?
Now, as I’ve written in the past, there’s a tendency among students of international relations to assume that secret treaties died with Woodrow Wilson’s fourteen points of light speech and its admonition for “open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind.” That view was codified, first in Article 18 of the Treaty of Versailles, and later (in a looser form) in Article 102 of the U.N. Charter (requiring Member States to register and allow to be published ”[e]very treaty and every international agreement” they make with the understanding that unregistered treaties may not be invoked before any organ of the United Nations). But, as far as international law is concerned, reports of the extinction of secret treaties appear exaggerated. As D.N. Hutchinson noted here back in 1993, Article 102 is most often honored in the breach, and has little relevance today to determining the legal status of an agreement (the ICJ appears to agree given its holdings in the jurisdictional phase of Qatar v. Bahrain). Thus, I’m not terribly surprised by the idea that the text of the deal may be secret even if its existence is not (particularly given the ‘nuclear’ subject-matter). Moreover, I don’t think the fact that Iran and these other States concluded it without making the text publicly available will deny it the status of a treaty under international law.
A more important question may be, given the reality of some significant Congressional hostility to the deal, whether keeping its text secret will prove problematic under U.S. law or the domestic law of any of the other State participants? I can’t speak to the domestic law of other States, but on the U.S. front, I have my doubts. There are obvious questions as to what legal authority the United States has to conclude this implementation agreement (i.e. is it a sole executive agreement, or does the Obama Administration view some existing legislative authority as sufficient to treat it as a congressional-executive agreement?). Assuming legal authority to conclude an implementation agreement, however, there is statutory authority for it to be done in secret provided the Executive Branch follows the appropriate procedures under the 1972 Case-Zablocki Act:
The Secretary of State shall transmit to the Congress the text of any international agreement (including the text of any oral international agreement, which agreement shall be reduced to writing), other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter. However, any such agreement the immediate public disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States shall not be so transmitted to the Congress but shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives under an appropriate injunction of secrecy to be removed only upon due notice from the President. Any department or agency of the United States Government which enters into any international agreement on behalf of the United States shall transmit to the Department of State the text of such agreement not later than twenty days after such agreement has been signed. (emphasis added)
Simply put, U.S. law accepts and regulates secret treaties and other international agreements. Thus, I don’t think the fact of its secrecy will sway proponents (or opponents) of this deal one way or another. Even so, I’m curious to know more about the Iranian implementation agreement. Is it intended to be legally binding or a political commitment? And, if it’s a treaty, what’s the Executive Branch view as to the legal authority to conclude it short of getting new legislation or going to the Senate under Article II of the Constitution? I’d welcome comments from readers who know more details here than I do.
Hat Tip: Orde Kittrie
That’s the punchline of a podcast Radiolab just released this week, provocatively titled “Sex, Ducks and The Founding Feud”. Along with John Bellinger, Joseph Ellis and Nick Rosenkranz, I was interviewed for the story by Jad Abumrad and Kelsey Padgett. It was a fun experience overall trying to explain to a general audience the importance of the US treaty power and how it plays out in the Bond case, and Missouri v Holland before that. On the whole, I enjoyed hearing some fabulous sound editing (which is not surprising given Jad’s previous work won him a McArthur Genius award). Entertaining as it is though, I also found the piece quite thoughtful in framing the importance of the treaty power and offering both sides of the arguments, even if one might quibble over a few details here and there (eg the constitutionality of the implementing legislation versus that of the treaty).
Interested readers can take a listen here.
A flurry of news today over the announcement that Iran has cut a deal with six major world powers — the Permanent 5 members of the UN Security Council — the US, Russia, China, France and the UK — plus Germany. The text of the ‘Joint Plan of Action’ is also widely available (see here or here).
My first reaction on looking at this ‘deal’ is that it’s not legally binding under international law. Look at how the Preamble begins:
The goal for these negotiations is to reach a mutually-agreed long-term comprehensive solution that would ensure Iran’s nuclear programme will be exclusively peaceful. Iran reaffirms that under no circumstances will Iran ever seek or develop any nuclear weapons….
The ‘goal’ implies something aspirational rather than required. The big-ticket commitment that Iran won’t seek or develop nuclear weapons is also referenced as a ‘reaffirmation’ rather than an affirmative commitment via this text.
Similarly, the operative paragraphs maintain an emphasis on avoiding language of legal intent:
Elements of a first step
The first step would be time-bound, with a duration of 6 months, and renewable by mutual consent, during which all parties will work to maintain a constructive atmosphere for negotiations in good faith.
Iran would undertake the following voluntary measures:
- From the existing uranium enriched to 20%, retain half as working stock of 20% oxide for fabrication of fuel for the TRR. Dilute the remaining 20% UF6 to no more than 5%. No reconversion line
- Iran announces that it will not enrich uranium over 5% for the duration of the 6 months. . . . .
In return, the E3/EU+3 would undertake the following voluntary measures:
- Pause efforts to further reduce Iran’s crude oil sales, enabling Iran’s current customers to purchase their current average amounts of crude oil. Enable the repatriation of an agreed amount of revenue held abroad. For such oil sales, suspend the EU and U.S. sanctions on associated insurance and transportation services.
- Suspend U.S. and EU sanctions on:
- Iran’s petrochemical exports, as well as sanctions on associated services.5
- Gold and precious metals, as well as sanctions on associated services.
- · Suspend U.S. sanctions on Iran’s auto industry, as well as sanctions on associated services . . .
Note the operative verb in these paragraphs is ‘would’ not ‘shall’ (which everyone would agree connotes an intention to be legally bound) or even ‘will’ (which the United States often uses to convey a legal intent even through the British and several other countries insist signals an agreement meant to have political, in lieu of legal, force).
To further emphasize the political and non-legally binding nature of this agreement, note the two sides emphasize that the measures listed are ‘voluntary’. Moreover, the document is unsigned and lacks final clauses. So, the bottom line for me . . . this isn’t binding under international law. It’s a political commitment, not a legal one.
OK. Say I’m right? Why does it matter if this is not a treaty? To be clear, there’s nothing entirely novel about concluding a major political document in a non-legal form — from the Atlantic Charter, to the Shanghai Communique to the Helsinki Accords, there are plenty of ‘big ticket’ precedents for doing major deals in legally non-binding texts. Nor is it that political commitments are devoid of content — to be sure they can contain much that is aspirational or even puffery. But, many political commitments can contain significant expectations of changes to future behavior and, at first glance, I’d say the Joint Plan of Action falls in the latter category. The text is chock full of commitments both sides indicate they’ll be taking in the next six months on the path to a comprehensive settlement with respect to the future of Iran’s nuclear program.
That said, I think there are at least three significant implications of the choice of a non-treaty form for this deal. First, I think it offers all sides flexibility – all seven parties are cloaking their expectations of what’s going to happen now behind terms that allow them to turn on a dime as necessary, either to back away from their ‘voluntary measures’ or to adjust them as all involved carefully monitor the other side’s performance. Indeed, I expect that such flexibility was a key criterion for the sort of cooperation this deal envisages. Second, by choosing a political deal rather than a legal one, I think the results are less credible than if they’d been done via a more august instrument like a treaty. The treaty signals a level of commitment that just isn’t available with respect to an unsigned ‘joint plan’. Now, maybe a major legal text wasn’t possible in the time frame all sides were working under, but I’d be surprised if any subsequent, final deal isn’t coached in a legal form given the greater credibility that accompanies those sorts of promises.
For the United States, though, I think the third, and most significant, implication of this deal taking a political form is the fact that the Obama Administration doesn’t have to get the Senate or the Congress as a whole to approve it. Legally binding treaties and international agreements require the conclusion of specific domestic approval procedures. The Constitution contemplates the Senate giving advice and consent by a 2/3rd majority to Treaties (and most arms control agreements are done as Treaties). Modern practice meanwhile more regularly favors ‘congressional-executive’ agreements where Congress approves of the conclusion of the agreement before or after the deal is done. In other cases, the President may invoke his sole executive powers to authorize the conclusion of a deal by himself. But, when it comes to political commitments, there are no constitutional precedents requiring that Congress as a whole or the Senate authorize the commitment’s conclusion. Now, together with Josh Newcomer, I’ve argued previously that this status quo is constitutionally problematic where political commitments can function in much the same way as treaties. I fear political commitments may function as a loop-hole for the Executive to do deals that he could not do if he had to go to Congress or the Senate. I’m not sure that this is such a case, but it’s certainly worth thinking about the consequences of having the United States pursue this major foreign policy shift where the U.S. legislature has so little say in the matter (at least until such time as any deal requires changes to U.S. law itself).
What do others think? Am I right the Joint Plan of Action is not intended to be a treaty or an international agreement? And do you agree that it was a means for the United States to conclude a deal without involving a Congress, at least some portion of which has been overtly hostile to any negotiations with Iran?
[Update: over at Lawfare, Ingrid Wuerth rightly calls me to task for my earlier title -- referencing a 'U.S.-Iran' deal when there are 7 States involved -- en route to discussing whether this text would've required congressional or Senate approval IF it was legally binding. I've fixed the title accordingly and recommend readers check out Ingrid's post.]
On November 6, the United States signed the Minamata Convention on Mercury and deposited an instrument of acceptance indicating its consent to be bound by the treaty on its entry into force, making it the first nation to do so. Here’s how UNEP summarizes the Convention:
The Minamata Convention for Mercury is a global treaty to protect human health and the environment from the adverse effects of mercury. It was agreed at the fifth and final session of the Intergovernmental Negotiating Committee in Geneva, Switzerland at 7 a.m. on the morning of Saturday, 19 January 2013.
The major highlights of the Minamata Convention on Mercury include a ban on new mercury mines, the phase-out of existing ones, control measures on air emissions and the international regulation of the informal sector for artisanal and small-scale gold mining.
The treaty certainly seems to address an important environmental problem with significant momentum from State participants — although opened for signature only a month ago, it has already garnered 93 signatories (of course,
everyone most people know that those signatures are not the same as consent, which is why the United States took the additional step of depositing an instrument of acceptance). The treaty will enter into force on the deposit of the 50th instrument of ratification, accession, acceptance or approval.
What interests me about the Mercury treaty though is not just its contents — which are the latest iteration of multilateral environmental governance — but the process for U.S. acceptance. Here’s how the State Department describes it:
The Minamata Convention represents a global step forward to reduce exposure to mercury, a toxic chemical with significant health effects on the brain and nervous system. The United States has already taken significant steps to reduce the amount of mercury we generate and release to the environment, and can implement Convention obligations under existing legislative and regulatory authority. The Minamata Convention complements domestic measures by addressing the transnational nature of the problem.
Three questions. First, is the Administration considering this a congressional executive agreement? If so, shouldn’t they be a bit more specific about which U.S. laws authorize U.S. participation in this treaty. In particular, it would be interesting to know if the legislation authorizes not just the regulation of mercury but U.S. participation in an international legal regime regulating mercury (I’m guessing it doesn’t). That’s a big distinction, especially since the Obama Administration has already gotten into quite a dust-up over how it reads statutes with respect to authorizing U.S. consent to treaties (e.g., ACTA). And if there’s no statutory authority to join the Minamata Convention, doesn’t that mean it must be a sole executive agreement?
Second, where’s the U.S. Senate in all this? As Oona Hathaway has explained there are few, if any, ways to rationally explain why certain international agreements go to the U.S. Senate for advice and consent versus those that Congress approves via ex ante or ex post legislation (let alone those that are done under the President’s sole executive powers). Rationality aside, however, there is a long history of the Senate exercising its prerogatives over certain subject areas when it comes to giving advice and consent to treaties. Thus, when President Bush suggested he’d not send the Moscow Treaty on arms control with Russia to the Senate, the Senate issued a non-partisan
threat request that he do so . . . and the Administration changed course and obliged the Senate by sending it there. I’d always understood multilateral environmental agreements to warrant similar treatment. With one notable exception — the 1976 Long Range Transboundary Air Pollution Convention and its various protocols — I believe multilateral environmental agreements have always gone through the Senate advice and consent process . . . until now.
This raises a third and final question: Why did the Administration decide to bypass the Senate in consenting to the Minamata Convention? Perhaps the Senate indicated to the Obama Administration that they would not object to having this treaty concluded as an executive agreement? Or, maybe the statutory authority (would love further details on what it is) is more robust than in the ACTA context. Alternatively, I wonder, if this isn’t the Obama Administration response to the Senate’s repeated intransigence lately to approve any of the Administration’s major treaty priorities; from the Disabilities Convention to UNCLOS, the Senate’s been pretty deadlocked of late. Maybe the idea here was to send a warning shot to demonstrate that the Administration no longer feels bound to adhere to past practice when it comes to reserving certain treaty subjects for Senate attention and/or that the Administration wants to remind the Senate that it has other ways to pursue its international agenda if the Senate continues to delay or deny consent to the treaties it receives from the White House.
I’d welcome comments, especially from any readers who know more of the back story on this Convention or the U.S. approach to consenting to it.
A Friendly Request for Paul Clement, the Solicitor General, and the Supreme Court — Please read up on what it means to sign a treaty!
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 identify 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.
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 its 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 simply 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. More details, after the jump . . .
November 5, 2013 is U.S. National Treaty Day. Well, not really, but it might as well be given how much treaties are going to be in the news tomorrow. For starters, the United States Supreme Court hears oral argument in the case of Bond v. United States (for the pleadings, see SCOTUS blog’s as-always-excellent round-up). As we’ve blogged previously (a lot), the case challenges the scope of the U.S. treaty power as the basis for implementing legislation in areas where Congress otherwise could not legislate. In this case, there’s some salacious facts leading to a rather unlikely prosecution under the implementing legislation for the Chemical Weapons Convention (let’s just say the case is a far cry from the scenario that won the OPCW this year’s Nobel Peace Prize). In the process, Bond questions the continued precedential value of one of the most discussed (and read) cases in U.S. foreign relations law — Justice Oliver Wendell Holmes’ opinion in Missouri v. Holland.
Then, in the afternoon, the U.S. Senate Foreign Relations Committee takes up the UN Disabilities Convention . . . again (here’s the line-up for those testifying). The Convention got a lot of attention the last time it reached the Senate floor, with Senate Republicans voting it down despite the poignant appearance of former Senate Majority Leader Robert Dole, who came to support advice and consent to the treaty. U.S. Senators John McCain and Robert Menendez have an op-ed in USA Today taking their case for Senate advice and consent to the general public.
Of course, the Chemical Weapons Convention and the Disabilities Convention are not the only two treaties to have garnered media attention in recent weeks. U.S. Secretary of State Kerry’s signature of the U.N. Arms Trade Treaty promoted a rather furious domestic back-lash about whether the United States should join that treaty (At present, it sure looks like there’s easily enough Senate votes to oppose it). And, that’s not to mention the 1982 U.N. Convention on the Law of the Sea (UNCLOS). It continues to be supported by a large majority of business and national security interests but remains stymied by Senate opposition from a very vocal minority who fear the loss of “sovereignty” that would come with U.S. consent.
I could easily write one (or more posts) on each of these treaty issues. For now, though, I want to call attention to a common theme that runs through all the on-going debates. In each case, the treaty fight ends up being framed as a fight between those who would situate U.S. treaties (and with them, U.S. law) within a larger community — international communitarians if you will — versus those I’d call autonomists — who seek autonomy from any international regulation whether in defense of national law, states’ rights, or individual liberties. Thus, opponents to UNCLOS want the U.S. to be able to regulate its own maritime environment just as those who oppose the Disabilities Convention oppose its potential to go beyond the Americans with Disabilities Act. Of course, the Disabilities Convention also raises the specter of further intrusions into U.S. state regulations akin to the fears of internationally-based prosecutions that lie at the heart of the Bond case. And all of this is not to mention the NRA and their (rather unrealistic) charges that the Arms Trade Treaty would require the United States to violate the Second Amendment and the constitutional liberties individuals enjoy to bear arms.
This division between communitarians and autonomists helps explain how treaty debates are now almost always framed in all-or-nothing terms. The decisions on whether to join or enforce U.S. treaty commitments become zero-sum games; only one side can win and the other must lose. That narrative certainly makes for good media stories. But, I wonder if playing the game this way is truly in the nation’s interests. It seems we end up with some examples where communitarians can claim complete victory (see, e.g., the new START treaty or the gold standard of an international engagement — the Montreal Protocol) while autonomists have equally compelling winning claims on their side (see, e.g., Medellin). Citing such divergent results, however, only seems to inflame the passions of the “losing” side and risk entrenching no-compromise strategies that seem a recipe for disaster (see, e.g., this October in Washington).
So as the Chemical Weapons Convention and the Disabilities Convention take center stage, I’d like to flag a simple point: U.S. treaty-making and implementation is a much more flexible and nuanced practice than the existing debates suggest. There are not just some, but many, potential outcomes in these cases that would not require the definitive death of the treaty power OR states’ rights. Indeed, as Peter’s most recent post suggests and as I’ve written previously, looking at the history of U.S. treaty-making post Missouri v. Holland, it’s pretty clear that the United States regularly accommodates state interests/rights in entering and implementing U.S. treaty commitments. Thus, a win for the United States in Bond is unlikely to mean states rights get overridden by all future treaty-making. Similarly, there are ways for Ms. Bond to win this case (think, creative statutory interpretation) that don’t necessarily mean we all get to stop reading Holmes’ opinion. One could make a similar point about the Disabilities Convention. The Senate doesn’t have to give unconditional advice and consent — it has a long history of RUDs (reservations, understandings, and declarations) that might be used to mitigate the scope of U.S. commitments to that treaty regime. Even federalism interests writ large can be protected (see, e.g., the RUDs included in U.S. ratification of the Organized Crime Convention or the UN Corruption Convention).
Now, there will be those who say RUDs are inadmissible and run counter to the object and purpose of one or more of these treaties, just as there will be those who say joining any treaty will lead to some impermissible sacrifice of U.S. “sovereignty.” My point (hope) is that Senators (and Supreme Court Justices) don’t have to always accept these cases as they are characterized at the poles. There are plenty of precedents that may be brought to bear balancing competing interests such as federalism and international engagements at the same time. We’ll see if any such hybrid results appear possible in the coming days. I’d hope so, but given current trends in American politics, I’m not sure I’d bet on it.
Looking back at all the debates over whether the United States could have legal authority to use force in Syria, I was struck by the presence of two very different types of arguments about the Responsibility to Protect (R2P). For some, the R2P questions were interpretative in nature — what did R2P mean (i.e., does it require Security Council authorization) and how does its meaning apply in the Syrian context? Obviously, different interpretative methods and techniques could generate different answers to what R2P meant, and, with them, different outcomes for the Syrian intervention question. Many others, however, never made it to this interpretative stage. For them, the R2P questions were existential — did it even exist within the corpus of international law in the first place?
Looking at R2P in Syria provides a paradigmatic example of how international legal interpretation can do more than simply explain what a legal concept “means”. It shows that the interpretative project is not just an expository process but an existential one. The very act of interpreting validates the legal existence of that which is being interpreted. Interpretations of R2P with respect to the legality of a Syrian intervention necessarily accepted the existence of R2P within international law. At the same time, deciding whether or not R2P exists itself constitutes a particular form of interpretative process, or what I call an existential interpretation. I’ve written a paper about these existential aspects of international legal interpretation that’s now available on SSRN (I also presented it at this fabulous conference on interpretation in Cambridge). Here’s the abstract:
For most international lawyers, interpretation involves acts giving meaning to a particular legal rule. Interpretative studies center largely on questions of method and technique – by what process should (or must) meaning be given to an international legal rule and how does a given meaning accord with the interpretative method employed. In recent years, increasing methodological awareness of interpretative theory has broadened – or, in the case of critical scholarship, challenged – the capacity of interpretation to give meaning to international law.
Notwithstanding the value in focusing on interpretative methods and techniques, the concept of interpretation they produce remains incomplete. International law’s interpretative processes are like an iceberg – the meaning arrived at by an interpreter is not simply a function of the method and technique employed (the visible tip) but rests on an array of earlier choices about what “exists” to be interpreted in the first place (the iceberg’s hidden, critical mass). A familiar example involves the question of what evidence counts as “State practice” for purposes of identifying customary international law. Interpreters who only count what States “do” may generate different content for a claimed rule than those who also consider what States “say” about the rule, even holding constant the method and technique employed. Similar existential questions arise throughout the international legal order. Before a treaty can be interpreted according to the 1969 Vienna Convention, for example, the interpreter must conclude the treaty actually exists. Indeed, interpretative choices lie at the core of international law’s sources doctrine, since what qualifies as international law (or not) can privilege or foreclose specific interpretative methods and outcomes.
This paper seeks to uncover the “existential function” of interpretation in international law. It explains how all interpretations have existential effects as they create, confirm, or deny the existence of the subject of interpretation. At the same time, I identify a particular structure of interpretative argument – what I call “existential interpretation” – by which interpreters ascertain the existence of their subjects. I review examples of this phenomenon in questions about the existence of interpretative authority, evidence, international law, and its sources.
Existential interpretations and the functions they serve have significant implications for international legal (a) discourse, (b) doctrine, and (c) theories of international law. Existential interpretations delineate the boundaries for interpretative discourse, narrowing it in cases of consensus on the existence of the interpreted subject, and broadening it in cases of dispute. Where interpretative resolutions of existential questions are possible, they may impact the content of international law doctrine, either directly or indirectly. And, where resolution is not possible, existential interpretations may operate as proxies for theoretical disagreement about the nature or purpose of international law (e.g., positivists may insist interpreters exclude from their toolbox the same soft law sources that naturalists insist require effectiveness as a matter of right). The paper concludes with a call for further study of existential interpretation given its importance to practice as well as its potential to provide a new lens for mapping the unity and fragmentation of the international legal order itself.
I’d welcome feedback if any of you find the paper is worth a read.
I’ve been surprised how quiet the Obama Administration has been in terms of treaty actions in its 5 years in office — you can pretty much count on one hand the number of treaties that have gone through the Senate Advice and Consent process (and nothing at all has happened this Congress). Now, some of the blame for this certainly rests with a recalcitrant (some might say new-sovereigntist) minority of U.S. Senators (see, e.g., UNCLOS and the UN Disabilities Convention fights). Still, the reality of the last few years has been that major U.S. treaty actions by the Executive are also fairly uncommon occurrences. So, the news today that John Kerry will sign the UN Arms Trade Treaty (ATA) for the United States is quite noteworthy given the paucity of such signatures of late.
The mainstream news media attention on the U.S. signing has (understandably) focused on the domestic opposition to the ATA, most notably the hostility of the National Rifle Association. As a result, the legal issues associated with treaty signature have gotten sparse attention. Indeed, in looking at today’s Washington Post, readers get no real sense that U.S. signature of the ATA will not actually commit the United States to comply with its provisions, nor the fact that the ratification which would involve such a commitment requires the advice and consent of the U.S. Senate (something that seems very unlikely at present). This is not to say that signature has no real world effects — it does. But the media has done little to explain them so I’ll flag the two that are most important. First, U.S. signature of the ATA serves a signaling function, letting the world know that the United States supports the treaty and will look to begin the domestic processes necessary to join the ATA (although I can tell you from my former life in the State Department that those processes can take years without anyone really batting an eye). Second, signature has one major legal consequences for the signing State as described in Article 18 of the Vienna Convention on the Law of Treaties:
A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty …
Now, the United States is not a party to the VCLT, but the VCLT is widely accepted within the U.S. Government as codifying customary international law. Article 18 in particular has been specifically treated as customary by the likes of former Secretary of State Colin Powell and John Bolton, most visibly in U.S. attempts to indicate an intention not to become a party to the Rome Statute or the Kyoto Protocol (see also Treaties and Other International Agreements, 2001 Digest of United States Practice in International Law 212-213 for more on Powell’s views).
If, as I believe, Article 18 is customary international law binding on the United States, that raises the interesting question of what obligations exactly will the United States assume by signing the ATA? Simply put, what acts by the United States would defeat the ATA’s object and purpose? Is there any content to Article 18 in this context — which may then legitimate the NRA’s very vocal objections to U.S. signature — or is the signature limited to its signaling value without any real restrictions on U.S. behavior going forward? I’d welcome reader input on one or more examples of things that would clearly cross the Article 18 line or thoughts on what acts the ATA does regulate but which cannot be said to trigger the object and purpose requirements associated with treaty signature.
Things are continuing to gear up here in the United States for the big foreign affairs law case of the year – U.S. v. Bond, which, among other things may allow the Supreme Court to revisit one of its most significant foreign affairs law cases ever - Missouri v. Holland. Bond asks two questions: (1) whether the Constitution limits Congress’s authority to legislate to implement a valid treaty if it intrudes on traditional state prerogatives, and (2) if the legislation in question — the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229, can be interpreted not to reach ordinary poisoning cases to avoid issue (1) and, with it, the “scope and continuing vitality of . . . Missouri v. Holland“. Oral argument is set for November 5, 2013, and SCOTUSblog has its regular (and excellent) set of links to all the relevant briefs.
So far, most of the attention in the case has centered on Issue (1), asking whether the Necessary and Proper clause can serve as a vehicle for implementing U.S. treaty obligations, which otherwise might lie outside Congress’ authorities under Article I. That, after all, was the central holding of Holmes’ opinion in Missouri and it’s the one that most scholars fear — or, hope, depending on their disposition — may be overturned by the current Court (for more on this see my earlier posts as well as the detailed exchanges between Rick Pildes and Nick Rosenkranz over a Volokh). But, there may be other constitutional grounds for upholding the Chemical Weapons Implementation Act in addition to the Necessary and Proper Clause. The U.S. Government, for example, has argued that the Commerce Clause also afforded Congress authority to pass that Statute. This is not a surprising argument. The Commerce Clause’s expanded jurisprudence is one of the main reasons Missouri v Holland has been so little tested in the decades following Holmes’ impassioned assertion of a dynamic reading of the treaty power.
Beyond the now-standard Necessary and Proper/Commerce Clause arguments, however, I was surprised to recently read about a third claim for constitutional authority — the Offenses Clause. In August, Professors Sarah Cleveland and Bill Dodge (who have both served as Counselors in the State Department Legal Adviser’s Office) filed an amicus brief arguing that the Offenses Clause authorizes Congress to define and punish offenses in implementation not just of customary international law, but U.S. treaty obligations as well (e.g., the Chemical Weapons Convention). They’ve now posted a scholarly exposition of their argument on SSRN. Here’s the abstract:
The Offenses Clause of the Constitution gives Congress power “[t]o define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.” Past scholarship has assumed that the Clause allows Congress to enforce only customary international law. This article demonstrates that this conventional academic wisdom is mistaken and that the Offenses Clause constitutes an additional source of authority for Congress to implement certain treaty commitments. The Framers of the Constitution clearly understood the law of nations to include treaties, or what they called “the conventional law of nations.” The history of the Offenses Clause shows that it was intended to reach treaties and thus to facilitate compliance with the United States’ international commitments. Moreover, despite the prevailing view in the academy, Congress, the Executive, and the Supreme Court have shared this understanding of the Clause through most of our nation’s history.
The Offenses Clause provides a cautionary tale about the dangers of reading constitutional text without sensitivity to its historical background and demonstrates the need for care in translating that text into modern terms. Our argument also has significance for a range of contemporary contexts — from piracy to international counter-narcotics activity — and for the case of Bond v. United States, currently pending before the United States Supreme Court. Most fundamentally, our argument contributes to understanding the role of international law in our constitutional scheme. It underscores the importance that the Framers placed on crafting a national government with robust authorities to fully enforce treaties and customary international law.
I find myself fairly convinced of the paper’s historical claim — that the reference to the law of nations at the time of the Framing included U.S. treaty obligations. Thus, I think their argument is one the Court can (and should) consider in the Bond case. In doing so, however, I think there are a few areas where the Cleveland/Dodge position requires further exposition. Let me highlight three after the jump.