Author Archive for
Edward Swaine

IL/IR Symposium: Comment on Helfer

by Edward Swaine

[Ed Swaine is Professor of Law at George Washington University Law School]

Larry Helfer is the perfect author for a chapter on the topic of treaty flexibility mechanisms: he writes from both theoretical and empirical perspectives, has a wide range of substantive expertise (including in human rights and trade, two fields that are central to this topic), and has a penetrating and remarkably clear style of analysis.  He deliberately provokes a number of questions in his chapter and post; because I’m conscious that blog readers themselves have numerous “exit” options, like closing this tab, I will try to be brief and touch on only a few.

This topic includes a wide variety of behaviors – reservations, denunciations, suspension, differentiated treatment, amendment, withdrawal, and so forth – and one set of issues concerns nomenclature and taxonomy.  Larry has a state-of-the-art table in his chapter laying out and sorting the flexibility options.  Personally, I have never been happy with describing certain formal flexibility mechanisms (those involving temporary relief from treaty obligations) as “escape” clauses, supposedly as distinct from “exit” clauses that entail permanent cessation of status as a treaty party.  Prisoners do not “escape” from Alcatraz with a view to returning; a word like “avoidance” better captures the idea in this context.  More generally, the categorization of flexibility mechanisms has certain routine difficulties – the basic problem of trying simultaneously to sort on when a state seeks flexibility and what its legal consequences are; conflicting tendencies both to include and exclude certain noncompliance acts as informal flexibility mechanisms; and an inherently unsatisfying distinction between so-called unilateral mechanisms (not always exploited in a completely autonomous fashion) and collective mechanisms (frequently, one suspects, prone to exploitation or capture by particular states).  Typology is rarely gripping, and I don’t want to mislead anyone into thinking that Larry’s chapter is focused on these questions or has unique difficulties with them.  However, they matter because we are concerned with the relationship among these mechanisms, principally in order to describe the choices states confront and make; he highlights this in his post as well.  In addition, beyond worrying whether these descriptions have formal integrity, we should also try to explore whether these are in fact the way state representatives think about the alternatives.  It might be the case, for example, that they focus predominately on collective rather than unilateral forms of flexibility, or informal rather than formal avenues, either of which might marginalize other kinds of inquiries.

A second set of issues concerns the proper perspective on these questions.  (more…)

The Oxford Guide to Treaties Symposium: Can Severability Be Made Less Severe?

by Edward Swaine

[Ed Swaine is Professor of Law at George Washington University Law School]

I’m pleased that the subject of reservations, which is near and dear to my heart, is attracting the attention of such esteemed commentators. The illuminating comments by Professor Stewart and Dean Koh, which I had the chance to read while preparing this post, focused in part on the severability solution, according to which impermissible reservations can at least sometimes be disregarded so as to leave a reserving state as party to the entire agreement.  Their comments, which query the compatibility of this approach with state consent and with securing Senate consent to future agreements, may be misperceived as resulting from parochial concerns – particularly in light of objections to the U.S. reservation to the Convention on Certain Conventional Weapons, in which some states likewise asserted the capacity to disregard the U.S. reservation and hold it to the “entirety” of the Convention.

I think the objection to the solution goes deeper, for reasons I could only touch on in my chapter.  ILC Guideline 4.5.3 would create a presumption that impermissible reservations are severable unless it is shown that the reserving state viewed the reservation as a sine qua non of its consent (as opposed to, say, a half-hearted ask or an attempt to yank another state’s chain).  Unless the matter rises to the legitimate attention of a treaty monitoring body or an international tribunal, this puts two inquiries to states trying to evaluate another state’s obligations – first, whether the reservation is impermissible because it violates the treaty’s object and purpose; and second, the psychological conditions of another state’s consent – which must also be anticipated by the reserving state in its turn.

This does not seem very workable, and the reason is in part because of the (ultimate) indulgence of the consent principle.  One might defend the first inquiry as potentially objective, though states are bound to differ on a treaty’s core values; the VCLT wisely pretermits the inquiry’s relevance to the extent it opens all reservations to objection on any grounds. The second inquiry, though, is not only subjective, but foreign to the responding state.  Still, it would have been open to the ILC to defend this presumption of severability as an information-forcing default rule – one that makes the reserving state disclose, via the reservation text or otherwise, its intent to insist on the reservation as a condition of adherence.

It is at that point, though, that the Guidelines seem to run out.  The opposability construct of the VCLT, to which the Guidelines are somewhat hostile, works after a fashion only because the call-and-response of reservations and objections establishes a shared understanding through what look like unilateral vetoes: first a veto by the reserving state of the agreed treaty content, then a veto by any objecting state to the reservation’s effect against it (and, unfortunately, either to the reserved-to provision or the reserving state’s consent, which is not an appealing choice).  Guideline 4.5.3 instead supposes that states will mutually intuit an offense against a treaty’s object and purpose; then develop a shared view of the reserving state’s “reservation price” based on the totality of circumstances relating to its intentions; and last but not least, as a belated concession to the consent principle and to its relative expertise, permits the reserving state to “express at any time its intention not to be bound by the treaty without the benefit of the reservation.”

The ILC is to be commended for taking seriously the problem of reservations that are inimical to a treaty’s mission and for addressing the limitations of the objections scheme. And it is notable that it did so while (at least nominally) resisting the position that each state can decide for itself whether a reserving state remains a party to the entire agreement, having recognized the importance of a state’s consent to the initial set of terms it assumed. But permitting a state to end its obligations at any time, with potentially retroactive effect, on the pretext that its reservation is impermissible – well, that converts a problem of uncited violations into one in which a team can blow the whistle on itself or, in any event, pick up the ball and go home when it chooses.  The Guidelines probably anticipate more refereeing by treaty monitoring bodies, but that will elicit its own objections. In the meantime, it seems likely that the proposed compromise on severability will gain adherents only slowly, if at all, and in the meantime make the players even more uncertain of the rules.

Questioning Political Commitments

by Edward Swaine

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

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

1. What is the international significance of political commitments?

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

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

Comment on Medellin

by Edward Swaine

[Edward Swaine is an Associate Professor of Law at the George Washington University Law School. ]

The quick scorecard on Medellin is pretty simple: Texas wins, the ICJ loses, and the President loses. I have lots of reactions to what the opinions say about the ICJ, non-self-execution, and even comparative law, but let’s just focus on this bottom line.

The first two claims have already been spun. As to Texas, Peter makes the point that freedom may have a price. (And Justice Stevens thought that Texas might step up and take one for the team; I suppose hope springs eternal.) As to the ICJ, Chief Justice Roberts suggests that a sparer approach to self-execution is indispensable for U.S. treatymaking, since any other approach might “hobble” U.S. willingness to enter into agreements by causing too much anxiety about what courts would do. If this reasoning is accepted – and there’s something to it, though I am not persuaded – it probably applies even more forcefully to dispute-resolution mechanisms, so this decision could be celebrated as a shot in the arm for U.S. willingness to go before the ICJ! (Not that it will particularly improve the reception once we get there, but you can’t have it all.)

So what about the third result — the President’s loss? I myself have argued that President should be understood to have the authority to implement even some non-self-executing treaty obligations via the Take Care Clause, which is a constrained kind of power — it authorizes only to the extent it binds. The Court gives that the back of the hand. It also rejects what the executive branch was arguing, which depended on the power to make sole executive agreements, and should be understood as cutting back on attempts to extrapolate from that line of precedent. As many have pointed out, however, the circumstances giving rise to this assertion of presidential power are pretty unusual: Not only is the President trying to embrace an ICJ decision that the United States lost, but he is doing so while continuing to insist that the ICJ was wrong. Not too appealing a pitch, and not too likely to come up in the near future, even if the Court has single-handedly saved dispute resolution.

So is there a countervailing upside for the President, like there is for the ICJ? Something much more substantial, to my reckoning – if not exactly to my liking. The near presumption against self-execution, the reliance on domestic political branches to confirm that presumption, and the deference to executive branch treaty interpretation, among other things, all force the conclusion that it will be yet harder in the future to invoke treaty obligations in court contrary to executive branch interests. Even a marginal change along this line of authority is quite important to presidential authority, since it applies in many more circumstances, and in many cases of keener concern to the President, than will the case’s holdings with regard to ICJ decisions. Geneva Conventions, anyone?