Author: Jean Galbraith

[Jean Galbraith is a Professor of Law at the University of Pennsylvania Law School.] What is the Trump Administration doing to U.S. foreign policy and more generally to the world? In his new book, The Trump Administration and International Law, Harold Hongju Koh tackles this question in a way that manages to be both deep and accessible, a scholarly accounting and...

[Jean Galbraith is an Assistant Professor at the University of Pennsylvania Law School.]  The Security Council’s voting procedures make it difficult to pass resolutions – and, typically, difficult to undo resolutions once passed. In an article published not long after the end of the Cold War, David Caron observed that while it is hard to address the difficulty of passing resolutions,...

[Jean Galbraith is an Assistant Professor at the University of Pennsylvania Law School] One mechanism through which international law regulates the behavior of states and other actors is deadlines.   Although little studied, deadlines appear throughout international law, especially in treaty regimes. Drawing on a future book chapter, in this post I describe some of the roles played by deadlines in international law. I also consider what insights research on the use of deadlines in domestic contexts might have for good and bad ways to use deadlines in international law.

Uses of Deadlines in International Law

Deadlines occur throughout international legal practice. We find them in the negotiation of treaties; in relation to the signature and ratification of treaties; in the provisions of treaties; in exchanges among nations and other actors regarding international legal obligations; and in the functioning of international organizations and tribunals. Deadlines can have quite different international legal effects. Some deadlines are purely political, such as many deadlines in negotiations. Other deadlines set limits on access to legal opportunities, like the date a treaty closes for signature. Still other deadlines mark the legal boundary between compliance and non-compliance with obligations under international law, such as substantive or reporting deadlines written into treaties. For examples of these different kinds of deadlines, consider the Chemical Weapons Convention. Negotiating deadlines were used during its creation. Its entry-into-force date served as the date that the Convention closed for signature, triggering several last-minute signatures. This date also served as a symbolic deadline that galvanized the advice-and-consent process in the U.S. Senate. The content of the Convention itself is also laden with deadlines. To take one prominent example, the Convention requires parties to complete destruction of their chemical weapons within ten years of the Convention’s entry into force – with the possibility of an additional extension of up to five years. The United States and Russia have overshot this deadline and are therefore in violation of their obligations. Finally, deadlines feature in the work of the international organization created by the Chemical Weapons Convention (the OPCW), as with its recent use of deadlines in relation to Syria. As this example suggests, deadlines can prove hugely important to international law. Yet they have received little attention for legal scholars. Given how integral deadlines can be to the functioning of treaty regimes, it is important to think about they can be best deployed.

Deadlines and Behavior: Some Insights from Domestic Research

Although deadlines have received little study in international law, scholars have studied deadlines in lots of other contexts. As examples, consider the following findings: 

[Jean Galbraith is an Assistant Professor at Rutgers School of Law - Camden] Thank you to Opinio Juris for letting me guest blog on Bond. The most notable thing about the Bond decision is a resounding silence.  As a matter of law, it should have been easy to find for the government.  The statutory text reads plainly in the government’s favor, and constitutional text, practice, and precedent easily support the conclusion that the federal government can override federalism interests in implementing constitutionally valid treaties.  Yet not a single justice sided with the United States.  This silence is particularly perplexing given that three justices at oral argument seemed sympathetic to the government. That is the major silence, but there are silences of reasoning in the opinions as well.  In what follows, I focus on two silences.  The first is the lack of consideration in the majority opinion of how treaty-implementing statutes might differ as a matter of statutory construction from ordinary statutes.  The second is the startling absence of constitutional history from the Framing onward in Justice Scalia’s concurrence.

The Majority Opinion

As Peter Spiro has noted, the majority ducks the constitutional question of whether the Treaty Power plus the Necessary and Proper Clause authorizes Congress to criminalize domestic poisonings like that of Ms. Bond.  Following a hint dropped by Justice Kennedy at oral argument, the Court does this by holding that there needs to be a “clear statement that Congress meant the statute to reach local criminal conduct.”  It isn’t enough for Congress to use broad language that seems to cover the act at issue; instead, Congress apparently has to do something more to signal specific intent to reach “local” conduct.  Congress didn’t do so here, so Ms. Bond wins. I won’t deconstruct the merits of this approach, although I think Justice Scalia does a good job in his concurrence of showing why it is problematic.  But I do want to mention that it leads to an interesting divergence between the interpretation of a treaty and the interpretation of implementing legislation.  The Court spent very little time on the interpretation of the Chemical Weapons Convention itself, merely noting its “doubts” that the Convention was meant to reach ordinary domestic poisonings.  If it had wanted to, the Court could doubtless have done more to interpret the Convention this way (e.g., by explicit discussion of “object and purpose” or perhaps by drawing on rule-of-lenity-related principles in international and comparative law).  But instead the Court accepted a wedge between the interpretation of a treaty and of its implementing legislation.  Federalism principles do not matter to treaty interpretation (given that these principles are country-specific) but do matter to the interpretation of implementing legislation.  If this canon of construction is about Congressional intent, then it strikes me as odd, because there is a countervailing consideration not mentioned by the Court. This is that when Congress uses language that closely tracks a treaty’s language in implementing the treaty, Congress presumably does so because it wants convergence rather than divergence with the treaty.

Justice Scalia’s Concurrence

In February of 1793, President Washington’s cabinet debated the negotiating instructions for a forthcoming treaty with Indian tribes in the Ohio region.  One issue was whether they could authorize the cessation of land back to the Indian tribes.  Thomas Jefferson took the view that this lay outside of the delegated powers of the federal government.  Alexander Hamilton responded “that the power of treaty was given to [the President and the Senate] by the constitution, without restraining it to particular objects, consequently that it was given in as plenipotentiary a form as held by any sovereign in any other society.”  After the other two cabinet members expressed views more in line with Hamilton than Jefferson, Washington urged them all to reach a consensus.  “He seemed to direct those efforts more towards me,” Jefferson recorded dryly, “but the thing could not be done.” Fast-forward to today – and we are still far from consensus on the exact contours of the treaty power in our constitutional system.  In a chapter on treaties in his excellent new book, International Law in the U.S. Legal System, Professor Curtis Bradley provides a doctrinal map of the treaty power, complete with thoughtful assessments of the level of certainty that attaches to each feature.  In this blog post, I’ll briefly describe Professor Bradley’s overall approach, then focus more specifically on Professor Bradley’s discussion of the scope of the treaty power, and close with a few remarks on the Bond case now pending in the Supreme Court.

[Jean Galbraith is Assistant Professor at Rutgers-Camden School of Law] Congratulations to Duncan Hollis and the contributors to The Oxford Guide to Treaties [OGT].  This is a magnificent volume -- one that fully lives up to its aim of “explor[ing] treaty questions from theoretical, doctrinal, and practical perspectives.”  For an edited volume, it is a remarkably coherent treatise.  Personal views of...

[Jean Galbraith is Assistant Professor at Rutgers-Camden School of Law] This post is part of the Leiden Journal of International Law Vol 25-3 symposium. Other posts in this series can be found in the related posts below.
I want to thank Opinio Juris and the Leiden Journal of International Law for putting together this symposium.  I am especially grateful to Professor Dov Jacobs for organizing this session and to Professors Mark Drumbl and Meg deGuzman for their thoughtful comments about my article. Some years back, I noticed how frequently international criminal defendants argued that they deserved credit for help they had given members of the other side during the conflict.  Almost every ICTR defendant claimed that he had helped protect one or more Tutsis, and ICTY defendants asserted all manner of humanitarian acts.  Most of these claims seemed dubious in their veracity or trivial relative to the defendants’ crimes, but a few left me wondering whether those defendants really belonged among the worst of the worst.  These observations led to this article, which has both a structural and a substantive component. Structurally, I look at how the ICTY and ICTR have dealt with evidence of frequent use of defendants’ “good deeds” in sentencing.  The tribunals have dealt with this evidence in ad hoc fashion, with trial chambers taking a variety of cursory approaches and with little guidance from the Appeals Chamber.  This in and of itself is suggestive of how international criminal tribunals allocate their efforts.  Where inconsistencies in substantive international criminal law tend to get thoroughly examined and resolved, other kinds of issues – especially in sentencing – often slip through the cracks.  This may be especially true of issues that are, as Professor Drumbl puts it, sui generis to international criminal law:  it is harder for courts to recognize these as systematic issues in the first place. Substantively, I consider how defendants’ good deeds should affect the sentences they receive.  This is a hard question.  There’s no consensus among domestic jurisdictions about how much or how little to weigh good acts at sentencing.  When confronted with conflicting domestic approaches, the ICTY and ICTR have often focused on picking among them.  I argue, however, that the tribunals can avoid doing so here and instead derive their approach from the unique features of international criminal law.  Specifically, I argue that, as a doctrinal or functional matter, international crimes typically arise out of conflicts between groups -- and are considered to be international crimes worthy of the attention of the international community in part because of this quality.  Because of this, I suggest that good deeds by defendants aimed at those on the other side of the conflict should mitigate in part (though only in part) the appropriate level of retribution at sentencing, with the degree of mitigation to depend on the relative magnitude of the defendant’s crimes and good deeds.  I also argue that, depending on motive, a defendant’s good deeds might also serve as evidence of rehabilitable character. Professors Drumbl and deGuzman direct most of their comments to my substantive argument.  Professor deGuzman questions my overall emphasis on retributivist reasoning and also notes concerns about some particular points.  Professor Drumbl is sympathetic to my overall argument but urges me to revisit or expand my argument on five specific issues.  I can’t do full justice to their points, which reflect careful scholarly engagement with my article, but here are some brief responses.