Author Archive for
Larry Helfer

Avoiding a Rush to the Exit – Article 50 and the UK’s Withdrawal from the EU

by Larry Helfer

[Laurence R. Helfer is the Harry R. Chadwick, Sr. Professor of Law at Duke University and a permanent visiting professor at iCourts: Center of Excellence for International Courts at the University of Copenhagen.]

As the world reacts to the shock of the Brexit referendum, international lawyers are turning their attention to the mechanics of Britain’s departure from the EU.  Article 50 of the Lisbon Treaty – the clause governing withdrawal – is now front page news.  A state’s decision to leave any international organization raises thorny questions of law and politics.  As I explain below, Article 50 answers some of these questions for withdrawals from the EU, but leaves many others unresolved.

The basics of Article 50

EU law was originally silent as to whether a state could leave the Union, generating debate over whether there was an implied right to exit.  Article 50(1) settles this issue, providing that “any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”

Under Article 50, the decision to quit the EU is not self-executing, nor does it have immediate effect.  Rather, the exiting country must first “notify the European Council of its intention” to leave, which triggers a process for negotiations over withdrawal.  The hope, set out in Article 50(2), is that the remaining EU members and the departing nation will “conclude an agreement … setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union.”  That agreement must be approved by a “qualified majority” of the Council (20 of the 27 remaining EU members), by the European Parliament, and by the UK itself.

Article 50’s third paragraph specifies that the Lisbon Treaty (and, by implication, all other EU laws) “shall cease to apply” to the exiting state on the date the withdrawal agreement enters into force.  If no agreement is reached, EU membership ends “two years after the notification” of withdrawal – unless the Council and the UK unanimously agree to an extension.  Once the UK has officially departed, it can rejoin only by following the Lisbon Treaty procedures applicable to states seeking admission to the EU for the first time.

The least worst outcome – bargaining for an orderly withdrawal

By setting the ground rules for Britain’s withdrawal, Article 50 is already shaping talks between London and Brussels over the terms of the UK’s exit.  The effects can be roughly divided into three time periods:  the pre-notification period, the negotiations phase (what one reporter waggishly calls the UK’s departure lounge), and the post-exit relationship between the Britain and the EU.

Brexit supporters did not wake up to an EU-free Britain on the morning after the referendum.  The UK is still a fully-fledged member of the Union – and it will remain so if the British government does not formally notify the European Council of its intent to withdraw.  Article 50 says nothing about how, when or by whom such notification is to be made.  Presumably, notice would be given by the Prime Minster.  Before the vote, David Cameron stated that he would inform the European Council “straight away” after a “leave” vote.  But on Thursday he announced that notification would be given by his successor, who will take office by October 2016.

Why the change?  Having campaigned against Brexit and lost, it is not surprising that Cameron wants someone else to pull the trigger on the UK’s withdrawal and squelch any campaign to block withdrawal – a possibility raised by Scotland’s First Minister Nicola Sturgeon.  But even fervent British sovereigntists would be advised to support some delay in notifying the Council.  So long as the UK has not fired the starting gun on the two-year exit clock, it has the upper hand in negotiations with the other 27 EU nations.  Britain keeps both the benefits and the burdens of EU membership while the terms of its departure are hammered out.  It can’t be forced to leave the Union (or can it? – see below) unless those terms are to its liking.

Once notice is given, however, the advantage shifts to the continent.  If Britain and its former EU partners do not reach a deal within 24 months – or unanimously agree to extend negotiations – the UK is out.  A divorce that is finalized while the spouses are still squabbling over custody of the children and the division of marital property is messy and painful.  The equivalent for a non-negotiated Brexit – the sudden re-imposition of barriers to free movement of capital, goods and labor – is an outcome that even diehard British nationalists should want to avoid.

How long can the UK defer notification?  Article 50 doesn’t say, but politics rather than law will almost certainly provide the answer.  Both pro-Brexit voters and EU leaders are unlikely to oppose a modest delay.  But the uncertain economic and political fallout of a protracted British withdrawal will push both sides to the bargaining table regardless of when the UK gives notice – unless the British public catches a bad case of “Regrexit.”

Contrary to what some have claimed, however, the exit negotiations need not conclusively resolve London’s status vis-à-vis Brussels.  Article 50(2) requires a withdrawal agreement that “tak[es] account of the framework for [the UK’s] future relationship with the Union.”  An deal that takes plausible steps toward defining that relationship should suffice, even if it is a modus vivendi whose principal aim is an orderly disengagement.  The details of the Britain’s post-withdrawal status can be finalized at a later date – although in the interim EU law will cease to apply to the UK.

Avoiding a rush to the Brexit

As described above, Article 50’s withdrawal rules, although incomplete, do a reasonably good job of channeling the parties toward a political settlement of the UK’s departure over the next several years.  But some in the pro-Brexit camp are calling for more precipitous action, including introducing an EU Law (Emergency Provisions) Bill in the current session of the British Parliament to revise the European Communities Act 1972.  The Bill aims to “immediately end the rogue European Court of Justice’s control over national security, allow the Government to remove EU citizens whose presence is not conducive to the public good (including terrorists and serious criminals), [and] end the growing use of the EU’s Charter of Fundamental Rights to overrule UK law ….”

There is no doubt that Parliament has the power to adopt such a Bill.  But from an international perspective, the enactment would rightly be seen as a grave violation of EU law, which continues to bind the UK until an exit deal is finalized or, failing that, two years after a notification of withdrawal.  The Bill would surely trigger a raft of lawsuits, by the EU Commission and by private litigants, challenging its legality and seeking fines and damages.  How would British judges respond to such suits?  The Bill would force UK courts to choose between their duty to apply EU law over conflicting national law and their obligation to defer to Parliament.  The result, as Cambridge professor Kenneth Armstrong has warned, would be a constitutional conflict of the first order.

The Bill might also provoke the remaining EU members to try to force Britain out.  The EU has no expulsion clause; one was considered but ultimately left out of the Lisbon Treaty.  But as my coauthors and I explain in a recent working paper, it is unsettled whether international law recognizes an implied right to expel.  And European leaders could attempt to achieve the same result indirectly, treating the Bill as a material breach that authorizes a suspension or termination of the Lisbon Treaty vis-à-vis the UK.  In either case, the legality of any expulsion effort would almost certainly be challenged in court.

In all events, the far better course for all concerned is to avoid a precipitous unilateral break and instead to negotiate Britain’s orderly departure from the EU.

IL/IR Symposium: Flexibility in International Agreements

by Larry Helfer

[Larry Helfer is the Harry R. Chadwick, Sr. Professor of Law Professor of Law at Duke University School of Law]

I am delighted to participate in this Opinio Juris book symposium on Jeff Dunoff and Mark Pollack’s excellent edited volume. My chapter on “Flexibility in International Agreements” was improved by their many helpful comments and suggestions. This brief post summarizes a few of the chapter’s major themes.  Citations to all references can be found in the online and print versions of the chapter.

Government officials, international lawyers, and diplomats have long been interested in shaping the form and content of treaties to manage the risks of international cooperation. These actors have responded to these risks with an diverse array of flexibility mechanisms, including unilateral reservation and declaration clauses; entry-into-force requirements; limitations on territorial application; duration provisions; amendment and revision procedures; and rules governing suspension, withdrawal, and termination.

In addition to these formal mechanisms, a range of informal practices can enhance the flexibility of treaties.  Such practices include ad hoc supplementary accords, understandings, traditions, conventions, gentleman’s agreements, de facto modification of treaty obligations through conduct, auto-interpretation of ambiguous terms, and nonparticipation in treaty activities.

A principal challenge facing treaty negotiators is to select an appropriately constrained suite of flexibility mechanisms that facilitate agreement among states ex ante while deterring opportunistic uses of those mechanisms ex post after the treaty enters into force. Flexibility tools that are too easy to invoke will encourage self-serving behavior and lead to a breakdown in cooperation. Tools that are too onerous will discourage such behavior, but may prevent the parties from reaching agreement in the first instance, or, if agreement is reached, may lead to widespread violations if the costs of compliance increase unexpectedly.

Over the last decade, international law and international relations scholars have devoted growing attention to treaty flexibility tools. (more…)

Linos Book Symposium: Comments by Larry Helfer

by Larry Helfer

[Larry Helfer is the Harry R. Chadwick, Sr. Professor of Law Professor of Law at Duke University School of Law]

Katerina Linos has written an audacious and analytically rigorous study of how health and family policies spread over time across industrialized countries.  She deftly synthesizes a broad range of qualitative and quantitative research methods into a brilliantly-conceived research design that analyzes the mechanisms by which such policies disperse across borders.  The book’s core findings—that foreign and international models influence domestic policy adoption via politicians’ appeals to skeptical voters who view such models favorably—are highly counterintuitive.  The findings are at odds with the existing literature on policy diffusion, which identifies networks of experts and elites as the primary transmission mechanisms.  They are also contrary to the conventional wisdom that resistance to foreign and international policies is especially strong in the United States, where voters are thought to be unaware of such exemplars or mistrustful of those they have encountered.

My comments focus on chapters 3 and 4 of the book, which consider, respectively, how Americans view foreign models and how national health services have diffused across OECD member states.  Linos labels the first question as a “hard test case” for her theory (p.36), for the reasons just noted.  To search for evidence that U.S. voters and politicians are swayed by foreign policies, she conducts public opinion experiments and codes Congressional debates leading to the adoption of the 2010 Affordable Care Act and the 1993 Family Medical Leave Act.  The experiments suggest that Americans are much more likely to favor publicly-funded health insurance and maternity leave if such policies have previously been adopted by most Western countries or endorsed by the United Nations.  Linos also finds that members of Congress reference the health and family policies of rich, proximate and familiar nations rather than countries that experts view as the most relevant to the United States.

Chapter 4 makes the more modest claim that the national health systems (NHS) of foreign countries with the characteristics identified above (and, to a much lesser degree, nonbinding international norms endorsing universal primary healthcare) explain the spread of health policies among industrialized countries.  Here Linos builds upon an existing literature that identifies facilitating conditions for the adoption of NHS, but that has yet to explain the timing and geographic spread of those policies.  Chapter 4’s conclusions, although more nuanced than those of chapter 3, provide additional evidence to support Linos’ theory of democratic diffusion.

I have two sets of comments and questions about Linos’ arguments and findings in these chapters. (more…)

Foreign Officials Immunity: Implications for Human Rights Litigation

by Larry Helfer

Thanks to Opinio Juris for inviting me to comment on Foreign Official Immunity Determinations in U.S. Courts: The Case Against the State Department, Professor Ingrid Wuerth’s timely and insightful article. The springboard for the article is Samantar v. Yousuf, the 2010 U.S. Supreme Court decision which held that the Foreign Sovereign Immunities Act (FSIA) does not apply to individual government officials. Samantar addressed only a discrete issue of statutory interpretation. The Court avoided any discussion of international law even though the parties and amici extensively briefed whether customary international law (CIL) confers immunity on foreign officials from lawsuits alleging human rights violations. Instead, the Justices instructed U.S. courts to determine the immunity of foreign officials under the “common law”—the legal regime that prevailed prior to the FSIA’s adoption.

Notwithstanding the Supreme Court’s inattention to the international law backdrop to the Samantar case, I fully agree with Professor Wuerth that CIL is relevant to how U.S. courts should develop the common law of foreign official immunity. I also agree that a return to the pre-FSIA immunity regime should not be understood as delegating to the State Department the conclusive authority to determine whether a defendant is immune in a particular case, or to dictate the legal principles that courts must apply when making that determination.

In this brief comment, I first highlight the major contributions of Professor Wuerth’s article and then focus on the intersection of foreign official immunity and international human rights litigation under the Alien Tort Statute (ATS) and Torture Victim Protection Act (TVPA)—a topic that Professor Curt Bradley and I analyze in greater detail in a recently-published article.

The Case Against the State Department has many virtues. I will mention only three. First, Professor Wuerth situates Samantar in the context of other areas of U.S. foreign relations law. She shows that what at first glance appears to be a narrow and technical decision in fact has implications for important unresolved doctrinal issues such as the status of customary international law in the U.S. legal system, the propriety of federal common lawmaking in the area of foreign affairs, and the executive branch’s authority to promulgate rules that bind domestic courts. Foreign relations scholars who have given only passing attention to Samantar would do well to reconsider the case in light of the article’s cogent analysis.

Second, Professor Wuerth challenges head on the State Department’s assertion that it and it alone has “the power to resolve each and every immunity case as it sees fit, and to set out immunity law binding on the courts even in cases where it does [not] make a specific recommendation” (pp. 938-939). She systematically considers and rejects the plausible justifications for this claim: the Constitution’s text and history, functional considerations, and the implied authorization of Congress. This is an audacious position, one that is squarely at odds with two World War II-era Supreme Court cases and a handful of more recent lower court decisions that appear to give the executive branch precisely what it seeks—carte blanche over foreign official immunity determinations. The article pulls no punches in critiquing the anemic reasoning of these cases and the executive branch arguments that invoke them, demonstrating their inapplicability to a post-Samantar world in which the FSIA, other federal statutes, and CIL all suggest a more robust role for U.S. courts to develop common law immunity principles.

Third, The Case Against the State Department offers a nuanced, if abbreviated, roadmap for judges to make foreign official immunity determinations. Professor Wuerth identifies three “constraints,” in descending order of importance, that “limit and shape” (p. 968) federal common lawmaking: striving for consistency with the FSIA, avoiding violations of international law, and deferring to the executive branch on certain discrete issues. Of these constraints, the first—the continuing relevance of the statutory immunity regime—is the most surprising. Samantar decisively rejected the FSIA’s applicability to foreign officials. It thus seems counterintuitive to argue that the statute has any bearing on the immunity of those officials. Yet the article demonstrates that the FSIA indeed remains relevant to a number of key issues, such as whether immunity has been waived, whether an entity (and thus its employees) is properly characterized a foreign state or its agency or instrumentality, and whether a suit nominally against an individual government official should in fact be treated as one against the foreign state itself.

These constraints apply without regard to the subject matter of the underlying litigation. However, judicial development of common law immunity principles is likely to engender the most controversy in suits against foreign officials alleging violations of international human rights law. As Professor Bradley and I recount in International Law and the U.S. Common Law of Foreign Official Immunity, in the three decades following the Second Circuit’s groundbreaking 1980 decision in Filartiga v Peña-Irala, human rights litigation under the ATS and TVPA flourished largely unencumbered by immunity concerns. (Suits against sitting heads of state were a notable exception.) A majority of courts held (erroneously, Samantar has now clarified) that the FSIA did apply to individuals—but only for conduct undertaken in their official rather than their personal capacity. And most courts also concluded that those individuals were not acting in an official capacity when they committed human rights abuses. In making these determinations, however, these decisions did not consider the CIL of foreign official immunity.

U.S. courts may revisit these issues following Samantar. Consider each of the three constraints discussed in The Case Against the State Department. If courts interpret common law immunity in parallel with the FSIA, the prospects for ATS and TVPA litigation would dim considerably. Most human rights abuses are committed under color of law, although often in violation of it. Yet as the Supreme Court explained in Saudi Arabia v. Nelson, “however monstrous such abuse[s] undoubtedly may be,” they are “peculiarly sovereign” acts and thus shielded by immunity.

To be sure, nothing in Samantar or in Professor Wuerth’s analysis requires courts to develop the common law in lock step with the FSIA’s limited exceptions to immunity. It is uncertain, however, whether human rights litigation fares much better under the other two alternatives. If courts follow the executive branch’s lead (whether absolutely or by affording it a substantial degree of deference), immunity determinations are likely to vary according to a lawsuit’s foreign relations considerations, such as the country involved, the official’s position in its government, and the particular human rights allegedly violated. Indeed, the government’s amicus brief in Samantar lists a hodgepodge of no less than thirteen factors relevant to its immunity determinations, with no indication of their relative weight or how they should be balanced in any particular case.

This leaves international law. Traditionally, CIL extended immunity to officials from proceedings in other countries’ courts for actions taken on their state’s behalf. In the criminal context, this immunity has quickly eroded over the past decade, with courts invoking human rights treaties and principles to exercise criminal jurisdiction over former officials, including heads of state, charged with violating jus cogens. However, no comparable erosion has yet occurred in the civil context. Although few decisions (mostly by the Italian Court of Cassation) have embraced a broad human rights exception to immunity, courts in several other countries (including Australia, New Zealand, and the United Kingdom), have expressly declined to do so. In addition, challenges to decisions in both camps are pending before the ECtHR and the ICJ. As a result, the balance between immunity and accountability in international law remains very much in flux.

A key question, therefore, is whether U.S. judges should take the lead in shaping CIL to expand the civil liability of foreign officials who commit human rights violations. The precedents built up over thirty years of ATS and TVPA litigation since Filartiga provide support for this approach. But the uncertain legal landscape may also suggest that “courts should refrain from creating conflicts with other nations and from resolving contested questions of international law in ways that might create foreign policy problems.” (p.969) Which of these approaches U.S. courts follow will go a long way toward shaping the post-Samantar common law of foreign official immunity.

Competition and Control: A Response to Professor Cogan

by Larry Helfer

Thanks to Opinio Juris for inviting me to comment on Jacob Cogan’s interesting and thought-provoking paper, Competition and Control in International Adjudication. Jacob’s essay correctly recognizes that a system of controls is essential to the successful operation of the international legal system in general and international tribunals in particular. Controls are necessary, Jacob persuasively argues, because the states that create international tribunals and subject themselves to their jurisdiction benefit from adjudicating disputes before independent judges. Absent such controls, however, there is a risk that some judges will overreach, for example by engaging in various forms of activism or lawmaking, thereby frustrating the interests and objectives of the states that appointed them. The challenge that countries face, therefore, is how to preserve the independence of the international judiciary while providing an incentive for its members “to make rules—both procedural and substantive—that accord with the interests of States” and to curb their otherwise activist tendencies. (p.441) The solution the essay proposes is competitive adjudication—restructuring international adjudication to provide states with greater choice in selecting venues for adjudicating their disputes. Greater choice, Jacob argues, will create a rivalry among international courts and tribunals to attract litigants, thereby cabining judicial excesses. (p.449)

I agree with Jacob that competition is an important mechanism to control the output of international tribunals and, further, that competition can exist without compromising judicial independence. I also concur with the thoughtful analysis that appears in the essay’s conclusion, where Jacob critiques those commentators who argue that competition necessarily promotes incoherence and unpredictability in the international legal system. As I argued in an earlier piece on Forum Shopping for Human Rights, permitting litigants to choose among multiple tribunals and review bodies can promote jurisprudential coherence by encouraging jurists to engage in a dialogue over legal rules shared by more than one treaty system.

I part company with Jacob, however, over his view that there is insufficient competition in the international judicial system as it is currently structured. As Anne Marie Slaughter and I argued in Why States Create International Tribunals, international judges are subject to an diverse array of formal, structural, and political control mechanisms that states, both individually and collectively, can be applied both before a tribunal is created and after it is up and running. Judges also face discursive constraints generated by their participation in a global community of law. (For an illustration of the different types of controls and their operation, see table 3 on p.944) Viewed individually and in combination, these mechanisms—which include forum shopping among tribunals with overlapping jurisdictions—provide ample room for governments to limit judicial overreaching while preserving judicial independence.

Jacob disagrees. He challenges the “assumption that controls on international courts are sufficient and effective.” And he argues further that that “the weaknesses of judicial controls means that States are more likely to avoid courts, abandon them, or disregard their decisions, potentially condemning courts to irrelevance.” (p.415) If true, this would indeed be a serious threat to the international judicial system. But the revealed preferences of states do not support this claim, as the evidence in Why States Create International Tribunals reveals (see pp. 910-17). States are recognizing the jurisdiction of international tribunals in growing numbers and litigating cases before such tribunals with increasing frequency. These trends are especially pronounced for the WTO, the ICC, and human rights tribunals, and to a lesser degree, for regional tribunals whose competence covers trade and economic law. To be sure, not all tribunals have experienced such expansions. The compulsory jurisdiction of the ICJ and ITLOS, for example, has not been widely accepted. And there are also notable examples of backlash against tribunals, many of which Jacob describes in the essay.

Yet there is also striking evidence to the contrary. For example, states have expanded the jurisdiction of the two tribunals that Jacob identifies as immune from competition and therefore at risk of “market failure.” (pp.444-45) The recently-concluded Treaty of Lisbon delegates new powers to the European Court of Justice (ECJ) to interpret the now legally binding Charter of Fundamental Rights of the European Union as well as EU criminal justice agreements. A similar trend is underway in the European human rights regime. Until 1998, the jurisdiction of the European Court of Human Rights (ECHR) was optional. That changed with the ratification of Protocol 11, which made jurisdiction compulsory. Yet by then the ECHR had already significantly expanded the Convention’s rights and freedoms in ways that its founders could not have anticipated. Since making ECHR jurisdiction mandatory, the member states have continued to delegate additional authority to the ECHR by adopting new protocols.

Viewed cumulatively, this evidence suggests that states do not believe that independent international tribunals are “exceed[ing] their mandate[s].” (p.439) For even if Jacob is correct that states have difficulty checking judicial overreaching, they surely can decide not to delegate new powers to tribunals that have allegedly overreached or to voluntarily accept additional mechanisms for litigating disputes internationally.

I’ll conclude by briefly highlighting two broader issues that Jacob’s essay raises. First, before deciding whether existing judicial control mechanisms are inadequate, one first needs a theory of whether judges are in fact exceeding their mandates. Completing contracts, filling gaps, and engaging in judicial lawmaking may be precisely what states want a tribunal to do. For this reason, the very same activities that might be condemned as activism by one court may be welcomed in another. The broader theoretical question is whether international tribunals are the trustees or agents of states, an issue explored in depth in a thoughtful forthcoming article by Karen Alter, Agents or Trustees? International Courts in their Political Context, 14 European Journal of International Relations 33 (2008). Judicial trustees too need controls. But they are likely to be differently designed and differently utilized than the mechanisms used to control agents.

Second, Jacob’s essay highlights the need for additional empirical research analyzing the effects of different degrees of competition on judicial decision making. For example, the availability of multiple venues for adjudicating law of the sea disputes provides a natural experiment for testing some of Jacob’s theories. In such a high competition zone, we should expect the different tribunals and arbitral bodies to converge over time toward substantive standards that more faithfully reflects states’ interests. There are likely to be other empirical examples worth exploring.

In sum, Competition and Control in International Adjudication raises important and timely issues and is a welcome addition to the growing body of scholarship on international tribunals.

Why Do States Create New International Courts and Tribunals?

by Larry Helfer