Author Archive for
Paul Stephan

AJIL Symposium: Congressional Oversight of International Organizations

by Paul Stephan

[Paul B. Stephan is the John C. Jeffries, Jr., Distinguished Professor of Law and David H. Ibbeken ’71 Research Professor at the University of Virginia School of Law.]

Many scholars believe that a shift of authority to international organizations benefits the Executive Branch more than Congress. The Executive interacts directly with these organizations and bears undiluted accountability for the consequences of their actions. Congress deals with them sporadically and has weak institutional interests. Members are elected by local, rather than national, constituencies and therefore have an incentive to focus on local rather than national effects of foreign affairs, the actions of international organizations included. Therefore, some have suggested (myself included), Executive Branch actors might prefer international delegations as a means of hobbling legislative oversight. To oversimplify greatly, people like me have argued that internationalists who wish to deepen and broaden international cooperation through institutions might find themselves playing into the hands of the Imperial Presidency.

Kristina Daugirdas’s excellent article pushes back against the widely held belief that international institutions augment Executive power at the expense of Congress. Rather than theorize, she does research. Her careful study of the history and pattern of legislative oversight of the World Bank demonstrates the Congress has the capacity effectively (and significantly) to influence U.S. policy toward the Bank, and even to alter the Bank’s behavior. Creation of the Bank did not lead to a surrender of the legislature’s prerogatives, but rather gave members (especially in the House) a new pressure point for extracting concessions from the Executive.

The key factor that enables Congress to ride herd on the Bank, Daugirdas observes, is the Bank’s need for periodic new funding. This was not always true, as the Bank was designed to generate a positive return on its founding capital. The creation of a more aggressively redistributionist institution in the form of the International Development Association in 1960 changed this dynamic, because the IDA depends on frequent infusions of new capital. Because Congress must approve any U.S. contributions, it can hold the funding hostage to its policy preferences. Moreover, it has demonstrated an ability to monitor the Bank and thus to respond to slippage between its instructions and the Bank’s performance. In early years, when Congress instructed the U.S. Executive Director not to vote in favor of certain loans, the U.S. representative behaved as required but did nothing to alter the votes of other Directors. After Congress responded through more aggressive pressure on the funding lever, the Bank shifted course.

Although the need for regular funding is the salient variable, also important is the role of departmentalism within the Executive Branch. The White House, with its own agenda as well as acting as the focal point for all the Executive’s components to express their interests, may have a particular policy, but the Treasury has the responsibility for managing the United States’s relationship with the Bank and deals regularly with Congress. When Congress has been unhappy, Daugirdas shows, it focuses its displeasure on Treasury, which in turn works hard to steer the Bank’s behavior in the direction Congress wants, whatever the White House might prefer.

This article does several wonderful things. (more…)

Book Symposium The Electronic Silk Road: Comment by Paul Stephan

by Paul Stephan

[Paul B. Stephan is the John C. Jeffries, Jr., Distinguished Professor of Law and David H. Ibbeken ’71 Research Professor at the University of Virginia School of Law.]

I applaud Anupam Chander for picking a great subject for his book. New communications technologies have transformed the way we deliver services by radically lowering the cost of dematerialized, long-distance transactions. The resulting explosive growth of cross-border sales of services is one of the most significant aspects of the modern global economy. There are, of course, a host of books about the Web, some silly cheerleading and some exceptionally good (my favorite is Who Controls the Internet? by my sometimes colleagues Jack Goldsmith and Tim Wu). What Chander seeks to do is bring international law, and especially international economic law, into the mix. He explores how a body of rules developed three decades ago in a pre-Web world (the General Agreement on Trade in Services started in the Uruguay Round, born in 1986) can be brought to bear in the new, radically changed environment.

Much of the book describes the new face of international services. These accounts are apt and vivid. As a legal academic, however, I want more. In general I expect a careful study of a complex set of social relations either to propose a positive theory that links legal developments to social conditions with more or less rigor, or a normative vision of the world that will inspire us to correct unseen problems and cash out unrealized opportunities. I realize these categories are messy. The development of a positive analysis rests on certain normative choices, beginning with the decision to concentrate on one set of phenomena rather than another. A normative vision is incomplete without at least a rudimentary account of how we might get from here to there. But they provide a start.

I take Chander’s project to be at its heart more normative than positive. He reports on the fascinating growth of the information sector in the global economy, but he does not have a more general story about what explains this growth or how one might predict the next transformation. Rather, he wants to manage the transformation, to promote human flourishing, to expand the range of choices people can freely make, to respect local diversity, and to fight tyranny. (more…)

Medellin v. Texas: “Modest and Fairly Careful”

by Paul Stephan

A first read through the Medellín opinions leads to tentative observations, subject to revision:

• Chief Justice Roberts’ opinion for the Court is modest and fairly careful. He does not articulate a presumption against self-enforcement, or offer a general interpretive template. The analysis of the Optional Protocol and the UN Charter is specific to those two instruments. As my prior briefs and published work indicate, I find this part of the opinion completely persuasive. I take issue with the glib assumption that a commitment to comply with an international tribunal’s decision implies an automatic assignment to the judiciary of the authority to ensure that the commitment is honored.

• Although the opinion is limited in the sense that it does not offer a general rule for inferring self-executing from treaties, its dicta states strong views (it might be too strong to say it disposes of) concerning several controversies that the academic community has taken seriously. (a) The Court understands self-execution to refer to all forms of domestic enforcement, not just to the existence of a private right of action. Its definition of self-execution in footnote 2 may clarify our discussing going forward, even if some may quarrel with the definition used. (b) Reservations, declarations and understandings that limit or foreclose self-execution of a treaty that might otherwise have domestic effect seem acceptable to the Court. The Sosa Court also hinted as much. (c) And the idea of domestic enforcement of the awards of international tribunals does not seem to cause any great concerns, at least in the abstract. This will disappoint some who have suggested that domestication of such awards might present problems under Article III or other constitutional provisions.

• As a teacher of comparative law, I was delighted to see the Court’s reliance of the evidence of other country’s enforcement of ICJ decisions. I missed seeing a discussion of the recent decision of the German Constitutional Court regarding the Vienna Convention, although it may be too recent, too complex, and too tangential to make any of the briefs. The basic point that domestic implementation of international obligations has a comparative component and that an appreciation of foreign practice enriches our understanding of our own.

• As I was serving in the Executive Branch at the time of the drafting of the U.S. amicus brief and the oral argument, I am disappointed by the last part of the Court’s opinion. I would have thought that there was more to the US’s argument that the Optional Protocol, the UN Charter, and 22 U.S.C. § 287 can be read as assigning to the President the discretion to implement ICJ decisions through changes in domestic law. This argument, to be sure, is neither clear nor ineluctable. Still, I came away feeling that the Chief Justice was a bit like the person who, having a hammer, sees everything as a nail. That is to say, the opinion works so hard to clarify and establish what it means to say that a treaty is not self-executing that it rushes past a plausible and even useful refinement, namely that the treaty makers in advance might specify a nonlegislative mechanism for deriving valid domestic law from an otherwise non-self-executing treaty. To accept this argument, one would have to see Dames & Moore , Belmont and Pink not simply as cases recognizing a limited Presidential power that inheres in Article II, but also an expression of the expectations of the legislative branches when authorizing the President to enter into dispute resolution with foreign states. One might still argue that the treaty makers or Congress have to do more than simply sign on to dispute resolution to give the Executive the authority to choose to implement an international award or not. But here the Court’s opinion struck me as less careful or persuasive than what went before.

• If I had had any doubts about the persuasiveness of the majority’s discussion of the non-self-executing issue, Justice Breyer’s dissent would have put them to rest. The Chief Justice was remarkably restrained in his deflection of the dissent’s very problematic claims and proposals.

• This will not end all Vienna Convention litigation. We still have to decide what, if anything, Section 1983 adds: The Circuits are split. So the gift to which Julian refers will keep on giving for at least a little longer.