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Mark Weisburd

Bradley Book Symposium: The Discussion of Customary International Law

by Mark Weisburd

[Mark Weisburd is the Reef C. Ivey II Distinguished Professor of Law at UNC School of Law]

Professor Curtis Bradley’s International Law in the U.S. Legal System is an important contribution to the discussion of a topic of considerable significance.  Thorough in its coverage but accessible to readers with little familiarity with the subject, it is at once an excellent introduction (for someone with a legal background) to the issues it addresses and a useful compilation for those with some familiarity with the field.

This contribution to the symposium addresses Bradley’s chapter on the place of customary international law (CIL) in the federal law of the United States.  The space available precludes my considering all of the subjects of Bradley’s chapter, and I will therefore confine my comments to two of them:  first, the implications of Sosa v. Alvarez-Machain for the methods federal judges use in identifying rules of CIL; second, current controversies over the generation of rules of CIL as a matter of international (not American domestic) law.

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Response by Professor Weisburd

by Mark Weisburd

Odette Lienau’s Who is the “Sovereign” in Sovereign Debt? provocatively argues that Chief Justice Taft’s method of analysis in his 1923 arbitral award in the so-called Tinoco arbitration offers a useful approach to controversies over so-called odious debts owed by states, that is, debts incurred for purposes unrelated to the well-being of the population of the state responsible for the debt. Lienau argues that Taft applied what she calls a “rule of law” approach, making the enforceablility of the obligations in question in that arbitration dependent upon the compliance of the regime incurring the debt with its own law. Such a rule, she argues, would provide some protection of a population against a corrupt government while establishing a relatively objective standard against which lenders could evaluate the risk that any particular debt would not be paid. Lienau contends that such a mode of analysis would avoid the difficulties posed by the two other most common ways of addressing odious debt situations.

One of these approaches, which Lienau labels “statist,” enforces against a state all debts formally attributable to that state. This view is justified as necessary to avoid throwing credit markets into confusion; it is problematic because it would require a state to bear the burden of all debt concluded in its name, even those debts incurred in the name of the state by officials whose intentions to steal the borrowed money were obvious at the time of borrowing. The other approach focuses on the popular legitimacy of the regime incurring the debt, and makes the enforceability of the debt dependent on the purpose for which the debt was incurred and to which the proceeds of the borrowing were applied. The advantage of this view is that the state would not be responsible for debts incurred in its name but conferring no benefit on its population; the disadvantage is that it makes the enforceablility of debt uncertain at the time the debt is concluded, in turn reducing the willingness of lenders to deal with any government not both perfectly democratic and perfectly incorruptible.

Lienau is certainly correct that the binary choice to which she objects is undesirable. It is absurd to impose the burden of the loss from a theft on the victims rather than on the thief, but it is also unreasonable to expect lenders to lend money in the knowledge that they may be denied repayment on the basis of vague standards whose applicability in a particular case may be difficult to determine. Unfortunately, it is not clear that the approach Chief Justice Taft actually took in the Tinoco arbitration will do the work Lienau asks of it.

To explain this conclusion, it is necessary to describe the two claims Taft addressed. One was brought on behalf of a British firm whose oil concession, granted by the Tinoco regime of Costa Rica, was cancelled by the government which was elected to power after Tinoco’s overthrow. The other was brought on behalf of a British bank which had extended credit to the Tinoco regime by honoring checks, totaling $200,000 in American money, drawn on a Costa Rican government account with the bank and payable, in essence, to Tinoco himself and to his brother. The Costa Rican account had been established by the deposit in the British bank of certain notes issued by the Tinoco government; the bank’s claim arose when the successor government refused to pay the notes.

Taft ruled for Costa Rica on both claims. As to the concession agreement, Taft concluded that a crucial provision, exempting the concessionaire from certain taxes, had been entered into in violation of the Costa Rican constitution, and was both unenforceable itself and so central to the agreement as to render the entire agreement unenforceable. As to the notes held by the British bank, Taft concluded that it was so obvious at the time the checks were drawn that the $200,000 was for the personal use of the Tinoco brothers rather than for governmental purposes that the bank simply could not enforce the debt against Costa Rica.

While these determinations at first blush seem to support Lienau’s argument, closer examination renders that conclusion doubtful. In the first place, as Taft noted, the concession agreement itself provided that “disputes in respect to . . . execution of this contract shall be . . . decided according to the laws of Costa Rica.” Taft was therefore not somehow crafting his own approach to resolving this matter. Rather, he was applying the internal law of Costa Rica in a case where the agreement giving rise to the claim expressly made that law applicable. To be sure, Taft did not explicitly state that Costa Rican law governed because of the language of the concession agreement; rather, he stated that “[the concession's] validity is, as I have already said, to be determined by the law in existence at the time of its granting; and that means the law of the government of Costa Rica under Tinoco.”

Unfortunately, it is not clear where in the preceding portion of his award Taft had taken that position. The most logical explanation is that his reference is to the article of the concession agreement he had quoted earlier. This part of Taft’s award, then, appears to stand for no more than that local law should govern a contact if the contract expressly so provides, a proposition of fairly limited utility.

As to Taft’s disposition of the claim of the British bank, the problem for Lienau’s argument is about the reverse of that just discussed. Whereas the parties’ agreement appears to have been Taft’s basis for relying on Costa Rican law as to the concession agreement, it is not even clear that Costa Rican law was the source of the rule of law Taft applies to the bank’s claim. He states:

[The bank] must make out its case of actual furnishing of money to the government for its legitimate use. It has not done so. The bank knew that this money was to be used by the retiring president, F. Tinoco, for his personal support after he had taken refuge in a foreign country. It could not hold his own government for the money paid to him for this purpose.

What law imposed this obligation on the bank is not stated; certainly, Taft does not explicitly ground this obligation in the internal law of Costa Rica. The result regarding the bank, then, cannot be ascribed to the approach to sovereign debt advocated by Lienau, and the analysis Taft actually employed would not offer the advantage to creditors to which Lienau refers. That is, it is not clear that creditors’ uncertainty would be reduced if other tribunals followed Taft’s method of analysis of the bank’s claim, since it is not clear that Taft relied on a standard that the bank would have realized was applicable at the time of the transaction, even if it had assumed that its rights depended on Costa Rican law.

The bank’s claim provides a problematic precedent for a second reason. As the foregoing quotation indicates, Taft based his determination on his conclusion that the bank knew that it was paying money for Tinoco’s personal use, that is, that he was stealing the money. Indeed, he quotes “an agent of the bank” as stating that it was clear that Tinoco was about to fall at the time of the initial deposit of Costa Rican government notes. The Tinoco case, that is, was an extreme one. The dishonesty of the transaction was obvious as soon as the checks were presented to the bank. It is not at all clear how Taft would have dealt with a case where the matter was not so obvious to a lender at the time of the transaction, and thus not clear how broad the range of application of his rule would really be.

Odette Lienau is to be commended for devising an original approach to the odious debt dilemma. Her proposed solution, however, needs work.

First Reaction on Medellin, Self-Execution, Etc.

by Mark Weisburd

[Mark Weisburd is the Martha M. Brandis Professor of Law at UNC Law School.]

I find it difficult to read Medellin as institutionalizing a presumption against self-execution. If that had been Roberts’s intent, the form of his argument should have been, “We presume non self-execution, is there anything to overcome the presumption?” Instead, he analyzed the text, ratification hearings, and practice of other treaty parties to conclude that Art. 94 was not intended to create obligations for domestic courts. The conclusion seems reasonable to me – 94(2)’s according the Security Council discretion to refuse to enforce an ICJ judgment is hard to reconcile with a domestic judicial duty to enforce those same judgments – but it certainly isn’t reached with the aid of presumption.

David Sloss’s post makes an important point regarding the branch of the federal government with the repsonsibility to execute particular treaties. As he pointed out to me in a colloquy some time ago, whatever the status of some generic ICJ judgment, this particular judgment specifically requires action by American judges and it is impossible to carry out the international obligation admittedly created by the judgment without judicial action. The problem I see is that, if Art. 94 in general does not require domestic judicial implementation, and if the Senate consented to American submission to the ICJ only on the understanding that there was no requirement of domestic judicial enforcement, what happens when a particular ICJ judgment is meaningless without such enforcement? I find the Senate’s understanding crucial. Necessarily, it seems to me, the “treaties” to which the Supremacy Clause refers are those to which the Senate understood itself to be consenting. That is, a treaty for purposes of American judicial treatment imposes only those obligations which the Senate saw the treaty as creating. So – to address David’s argument – if the treaty to which the Senate thought it consented never requires judicial enforcement of ICJ judgments, then that’s the treaty which is the supreme law of the land. It may well be reasonable to argue that, at least on these facts, that not the best reading of Art. 94, but, if I’m right, the only issue is determining the Senate’s understanding of the treaty, not determining whether that understanding necessarily makes sense. Indeed, when the Court holds that the Senate’s understanding of Art. 94 as creating no domestic legal effects disables the president from seeking to implement Avena, it seems to put just that degree of weight on the Senate’s understanding.

Three other quick points. First, I think Ernie Young is exactly right that upholding the effect of Bush’s memo here would have had immense consequences. The administration’s argument was that the president can negate state law in order to carry out international legal obligations not otherwise binding in the US. Given the breadth of at least some readings of customary international law these days, it’s hard to imagine a subject as to which the President could not, effectively, legislate by decree if that argument had prevailed. I would add that the Court’s take on the consequences of the Senate’s understanding would seem to put to rest the controversy during the Reagan administration regarding the President’s authority to “reinterpret” treaties, according them a meaning different from that the Senate thought they had when it consented to ratification. Finally, regarding Paul Stephan’s point about the Court’s examining other states’ readings of Art. 94, I would note that this follows straight from the Vienna Convention on the Law of Treaties. Indeed, one of the reasons the ICJ was wrong in LaGrand and Avena was that it ignored other states’ readings of the Consular Convention.