Archive of posts for category
Featured Posts

ICC Communication About Australia’s Mistreatment of Refugees

by Kevin Jon Heller

As has been widely reported, 17 international-law scholars — including yours truly — recently submitted a 105-page communication to the Office of the Prosecutor alleging that Australia’s treatment of refugees involves the commission of multiple crimes against humanity, including imprisonment, torture, deportation, and persecution. The communication is a tremendous piece of work, prepared in large part by the Global Legal Action Network (GLAN) and Stanford Law School’s International Human Rights and Conflict Resolution Clinic.

Peter Dutton, Australia’s Minister for Immigration and Border Protection, has described our efforts as a “wacky cause.” Nothing could be further from the truth. The communication is serious, sober, analytic, and comprehensive. I think it establishes far more than a “reasonable basis” to believe that Australian government officials and officials of the corporations that run the prison camps on Manus Island and Nauru have committed crimes against humanity. Here is (most of) the executive summary…

Treaties in Constitutional Time

by John Parry

[John Parry is the Associate Dean of Faculty and Edward Brunet Professor of Law at the Lewis & Clark Law School. This is the fourth post in our symposium this week on treaty supremacy.]

David Sloss’s fantastic new book restores order and sanity to the confusion that pervades constitutional doctrine on the status of treaties. The great achievement of this book is its insistence on clear thinking about treaties and their interaction with federalism (supreme law of the land or not?) and separation of powers (who implements a treaty?). Where many writers push these questions together, Sloss distinguishes strongly between federalism questions about treaty supremacy and separation of powers questions about self-execution and treaty implementation. Read this book, and you will never, ever carelessly put those concepts back together.

Having separated these issues, Sloss traces their development from the founding era until just about the present day, and he unearths 8 distinct – and often inconsistent – constitutional doctrines about the status of treaties. Each doctrine represents a different arrangement of constitutional forces that push the status of treaties in one direction or another. Most important for contemporary law, he demonstrates, are two related ideas: the assertion that the intent of the treaty makers, whether or not stated clearly, should control the decision on self-execution, and the claim that a ratified treaty might not be supreme federal law binding on the states, despite the language of the supremacy clause. Neither idea, he makes clear, can claim any historical legitimacy, and neither idea is desirable.

Although Sloss does not hide his doctrinal preferences, his overwhelming goal is to untangle and explain the strands of these doctrines. He deliberately does not push many of the normative claims about treaty doctrine that he has advanced in numerous articles over the past 15 or more years. For example, Sloss is a prominent critic of the claim that the intent of the treaty makers determines whether a treaty is self-executing. The Death of Treaty Supremacy details the origins of the intent theory in a 1920s law review article by Edwin Dickinson that was picked up by state department lawyers to serve the cause of executive discretion, and then was tucked by some of those same lawyers (scarred survivors of the Bricker debates) into the Second Restatement of Foreign Relations Law, apparently under the noses of most observers. Intent survived into the Third Restatement and emerged triumphant in the Supreme Court’s 2008 Medellín decision. Sloss does not conceal his justified dislike of the intent doctrine, and he points out that the one step intent approach collapses two distinct inquiries: (1) determining what the treaty requires of the Unites States (an international law question about obligation), and (2) asking who in the federal government can or should carry out that obligation (a domestic separation of powers question). At the same time, however, Sloss’s commitment to analytical clarity also leads him to develop an argument for the constitutionality of the very same intent doctrine that he sees as a betrayal both of original understanding and longstanding practice.

By and large, in short, Sloss successfully puts his descriptive and analytic goals – clear thinking about treaties and the reasons for and results of doctrinal change – above his normative claims about what the doctrines ought to be. The result is a book that demands and deserves broad attention.

Despite my general agreement with Sloss’s analysis and conclusions, I do not quite agree with his historical narrative, particularly on the significance of Chief Justice Marshall’s 1829 opinion in Foster v. Neilson decision for the development of self-execution doctrine. Most commentators identify Foster as the origin of American self-execution doctrine, with perhaps a brief nod to the Chase and Iredell opinions in the much earlier Ware v. Hylton decision (in which Marshall was involved as an attorney). Sloss devotes many pages to Foster, and he provides what I think is the best modern description of what was going on in that opinion and how to interpret Marshall’s relatively brief analysis.

Yet Sloss’s discussion of Foster comes out of turn. As a participant in the Virginia ratification debates, the Ware v. Hylton litigation, and the 1800 debate over the extradition of Jonathan Robbins, Marshall knew what was at stake in the controversy over the status of treaties. In particular, as Sloss makes clear, republican members of Congress asserted the institutional interest of the House of Representatives in a narrower self-execution doctrine that would preserve its legislative authority and give it the ability to participate in (and perhaps frustrate) treaty implementation.

But Foster did not follow immediately on the heels of these events. Instead, two things happened. First, in 1815-16, Congress debated the status of treaties and its own role in treaty implementation with respect to the post-War of 1812 commercial treaty with Great Britain. In that debate, moderate members of Congress worked out the contours of self-execution doctrine in terms remarkably similar to those that Marshall would later use in Foster. Their views represented a compromise between the hard line federalist and hard line republican positions that characterized earlier debates. They also linked self-execution doctrine to the last in time rule, as a way of preserving congressional power against the necessary effects of self-executing treaties. The opinion in Foster and the Court’s subsequent last-in-time opinions follow these positions. (Contrast the effort of the Third Restatement of Foreign Relations Law to weaken the last in time rule, based on an internationalist suspicion of parochial legislators – or so I would argue.)

Second, in the 1820s, federalist lawyers began to write treatises even as their party disintegrated around them. These treatises, including Chancellor Kent’s, advanced hard line federalist positions about the treaty power and usually mischaracterized the results of the earlier congressional debates. Marshall had been, of course, a federalist, but his opinion in Foster has little or no overlap with the claims of the treatise writers. To the contrary, as I already asserted, his tone was far closer to that of the moderate republicans in the 1815-16 debate. Familiarity with those debates, combined of course with his own long-past experiences, could have steeled Marshall to resist lingering federalist claims.

Putting events in this order highlights the importance of extra-judicial activity to the debate over treaty status. Sloss certainly appreciates the importance of extra-judicial activity, but I think the debate over the constitutional status of treaties that took place outside the courts is more significant than he might allow. In some contrast to Sloss, I would contend that the text and original understanding of the Constitution generated greater ambiguity than certainty about treaty status and implementation. In the founding era, the status of treaties as supreme federal law was clear, but the relative implementing roles of the federal branches was not. Conflicting and ambiguous statements abound in the historical materials and early debates. As a result, government officials across the branches had to work out their respective roles over time. Most of the action on these issues, therefore, has taken place outside the courts: in the halls of Congress, the White House, and the State Department, and it has reflected shifting policy judgments and political calculations. The Supreme Court has tended to ratify the results of those extra-judicial activities (and sometimes has resisted them). But it has never led.

Note, as well, that the constitutional vacuum responsible for generating these ongoing debates has led directly to the critical modern developments that Sloss portrays in his book: the use of changed circumstances (such as the rise of the United States to great power status and the contemporaneous explosion of international human rights discourse) to generate further changes in treaty doctrine and the surprising vulnerability of the doctrine that treaties are supreme federal law binding on the states, which became drawn into these debates when it became politically expedient to do so.

I also wonder about Sloss’s treatment of more recent history. He jumps from the drafting of the Second Restatement of Foreign Relations Law all the way to Medellín v. Texas. Medellín is, of course, a significant case and a critical part of Sloss’s story, for the Supreme Court simultaneously embraced the intent doctrine and undermined the supremacy of treaties, even as it also raised doubts about judicial deference treaty interpretation. Yet other events also deserve mention.

Sloss has little to say about the Third Restatement of Foreign Relations Law, which displays a confusing approach to self execution, in tension with the Second Restatement. Under the most plausible interpretation of the Third Restatement, all treaties are supreme and preemptive, but non-self-executing treaties are not enforceable in federal court, even if they create rights and remedies (which perhaps are enforceable in some other fashion). The Reporters Notes push back even more against the Second Restatement and in favor of self execution, probably representing an internationalist valorization of treaties as superior legally and normatively to the actions of national legislatures (and also accommodating the executive power necessary to international cooperation). What happens to these claims?

In addition, few commentators accept Medellín as the harbinger of a new, stable doctrine of treaties. To the contrary, the decision has been extremely controversial. The Senate responded, as Sloss notes, by making express self execution statements when ratifying certain treaties, and even supporters of the result in Medellín have had to work hard to justify it in ways that are more satisfying and coherent than the Court’s actual analysis. The issues of treaty supremacy and implementation that Medellín failed to settle are playing out now in the drafting of the Fourth Restatement of Foreign Relations Law. I’d like to read Sloss’s thoughts on these unfolding developments. He’s said a little in other venues, and hopefully he will return to the fray in future articles.

Finally, I want to suggest a slightly different frame of analysis for these ongoing debates about treaties. The different approaches to the status of treaties that have emerged over time reflect tensions – sometimes subtle but sometimes not – in the basics of American political theory. How should we balance international obligations with internal political structure, without a clearly correct constitutional approach and faced instead with a set of choices that represent different accommodations of the relevant actors: president, congress, courts, and states? These are foundational questions. Without underlying consensus on those issues, treaty law will never be stable, and the instability of treaty law itself provides insight into those underlying tensions.

The Status of Treaties in Domestic Law

by David Stewart

[David P. Stewart is Professor from Practice at Georgetown University Law Center.This is the third post in our symposium this week on treaty supremacy.]

How are we to explain the yawning gap between the Founding Fathers’ clearly “monist” ideas about the role of treaties in our domestic legal system and the much more circumscribed “dualist” concept reflected in the Supreme Court’s Medellin decision? That’s the task David Sloss set for himself in The Death of Treaty Supremacy, and he succeeds in leading us on a long and detailed explanatory journey from 1789 up through 2008.

There can be little doubt that the Founders meant for treaties entered into by the new United States not only to be federal law but also (and more importantly) to bind the states and directly to override contrary state law. As Sloss demonstrates, the very point of the Supremacy Clause was precisely to prevent state governments and courts from frustrating critical treaty obligations of the new nation. To that very end, in Ware v. Hylton (1796), Justice Chase explicitly equated treaties with the Constitution itself. This “treaty supremacy” rule, Sloss notes, survived essentially unchallenged until the period immediately following World War II.

However, early on, the federal courts adopted an interpretation of the Supremacy Clause according to which some treaties (denominated “non-self-executing”) were considered not to have effect unless legislatively implemented.   As Sloss notes, the “non-self-execution” doctrine dates back to Chief Justice Marshall’s opinion in Foster v. Neilson (1829). Properly understood, however, this doctrine spoke only to the allocation of authority to implement treaties at the federal level, between the legislature and the executive, and had no effect on the treaty supremacy rule.

It was not until the 1952 decision of the California Supreme Court in Sei Fujii that the non-self-execution doctrine was applied to limit the treaty supremacy doctrine, with the result that treaties denominated “non-self-executing” were no longer understood to supersede conflicting state law. Why the California court chose that path, and why its approach gained traction including most importantly in the Restatement (Second) Foreign Relations Law, lies at the heart of Sloss’s story of “invisible constitutional change.”

His explanation weaves together a variety of factors, among others the provisions of the United Nations Charter and its non-discrimination obligations, the constitutional inability of the federal government at the time to prohibit racial segregation in the states, early Cold War politics, the nascent human rights movement, and cognitive dissonance theory. It is, in his view, a tale of constitutional transformation through judicial interpretation, rather than through the ballot or the amendment process, and therefore largely “invisible.”

Sloss acknowledges that the so-called “Fuji doctrine” did serve crucial political purposes by helping to mediate the tension between human rights and states’ rights and thus to defeat the so-called Bricker Amendment. Substantively, he embraces the doctrine as a defensible interpretation of the Constitution, while rejecting some of its more recent transformations, including the “no private rights of action” and “non-judicially enforceable” interpretations. His problem is with the lack of political transparency in the process, which he considers perhaps less than fully consistent with principles of democratic legitimacy.

There is something to be said for this criticism, since in Foster (and subsequent decisions) the Court effectively inserted the word “some” before “treaties” in the Supremacy Clause. Yet the story of our Constitution is largely one of judicial adaptation and reinterpretation in light of changed circumstances. For a technical question like treaty supremacy, it is hard to see how a plebiscite or process of formal amendment with respect to the treaty power might actually work. The specific concerns that motivated the Bricker Amendment during the early 1950’s are no longer present, but the underlying federal-state tensions are still there, very real and very much alive. Listen to the recent debates about ratifying the Convention on the Rights of Disabled Persons, or the Convention on the Rights of the Child, or the Convention on the Elimination of All Forms of Discrimination Against Women, and you’ll hear sharp echoes of the principles at stake in the Bricker controversy. In fact, versions of the Bricker Amendment are still introduced in the House and Senate from time to time. The treaty supremacy issue was debated at the Constitutional Convention in 1787 and in the ensuing state ratification process, and it hasn’t gone away.

Sloss notes with some approval how the issue was dealt with in the Restatement (Second) Foreign Relations Law but he gives little attention to the Restatement (Third) in 1986. The Reporters for that edition had a clear preference for self-execution and supremacy. While they acknowledged, in sections 111(3) and (4), that as a matter of U.S. law “non-self-executing” agreements will not be given effect as law in the absence of necessary implementation, and that some categories of treaties may presumptively fall in that category, they emphasized (in RN 5) that treaties are generally binding on ratifying states whether or not they are self-executing. “The purpose of having a treaty self-executing is to make it easier for the United States to carry out its international undertakings.” In addition, they noted, “[s]elf-executing treaties were contemplated by the Constitution and have been common. They avoid delay in carrying out the obligations of the United States. They eliminate the need for participation by the House of Representatives (which the Framers of the Constitution had excluded from the treaty process), and for going to the Senate a second time for implementing legislation after the Senate had already consented to the treaty by two-thirds vote.”

But a careful study of treaty practice over the past 30 years demonstrates that this preference for self-execution has not been shared by either the executive or legislative branches. In point of fact, almost all treaties today (bilateral or multilateral) are legislatively implemented. Very few are actually self-executing in the sense that they are directly applicable as federal law and override inconsistent state law.

Several reasons for this resistance to self-execution can be suggested. Perhaps most important is the drastically changed nature of treaties today. At the time of the Founding, most treaties were bilateral and involved straightforward questions of bilateral relations like war and peace, boundaries and trade. These were clearly matters for which national governments were accountable and unable to tolerate non-compliance by their subordinate components (like provinces or states). Today, treaties (especially multilaterals) increasingly deal with internal or domestic matters (such as human rights, criminal matters, family law, tax, intellectual property, jurisdiction, etc.) and to do so in great detail. They are often matters on which substantial domestic law already exists. Moreover, for federal states, they can implicate sensitive questions about the allocation of authority between the national and subnational governments. When they are negotiated in international organizations whose members are drawn from every part of the world and thus have markedly different legal systems and approaches, the final wording of the treaty is frequently so unique that it simply cannot be directly incorporated into domestic law (at least in the United States). As a technical level, little reason exists to support the proposition sometimes heard that “if it’s agreed to by the world community, it has to be better than domestic law.”

A more direct way of describing these changes is to say that treaties increasingly perform law-making functions. When that’s the case, it’s hard to argue against a preference for legislative implementation — although the difficulty (or impossibility) of getting such legislation often motivates those who argue in favor of self-execution, as indicated by the Reporters’ Notes cited above.

Most do not read the Supreme Court’s decision in Medellin as reflecting a clear presumption against self-execution, but there’s little question that in rejecting the President’s argument that he could unilaterally convert a non-self-executing treaty into a self-executing one, the Court saw the difference as involving a law-making function that necessarily involves the Congress. On that point, one has to think that, if the Founders could appreciate the very different nature and role of treaties in the contemporary world, they would agree.

Bringing Human Rights Home: Reflections on the Treaty Supremacy Rule

by Carmen Gonzalez

[Carmen G. Gonzalez is a Professor of Law at Seattle University School of Law. This is the second post in our symposium this week on treaty supremacy.]

David Sloss’ eye-opening new book, The Death of Treaty Supremacy: An Invisible Constitutional Change (Oxford University Press, 2016) should be read by lawyers, judges, law students, policy-makers, and legal scholars for its valuable insights on constitutional law, international law, legal history, human rights, and the quest for racial justice. The book’s thesis is that federal courts have misinterpreted legal precedent and inverted fundamental constitutional principles by authorizing states to violate the treaty commitments of the United States.

The Framers of the U.S. Constitution were acutely aware that violations of international law by the states could disrupt trade, incite wars, and besmirch the reputation of the United States. Accordingly, the Supremacy Clause of the U.S. Constitution provides that “all treaties . . . shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” [U.S. Constitution, Article VI, clause 2]

From the earliest days of the Republic until World War II, all treaties ratified by the United States were understood to supersede conflicting state laws pursuant to the treaty supremacy rule. When state laws contravened ratified treaties, federal courts were obligated to enforce U.S. treaty commitments. After World War II, opposition to the civil rights movement and to international human rights law sparked a subtle and pernicious re-interpretation of the treaty supremacy rule. A small but influential group of lawyers and policy-makers persuaded federal judges that non-self-executing treaties do not supersede conflicting state laws and are unenforceable in U.S. courts in the absence of implementing legislation. Because the U.S. Senate routinely attaches unilateral reservations to human rights treaties proclaiming these treaties non-self-executing, this re-interpretation of the treaty supremacy rule gives states carte blanche to violate international human rights law.

The Death of Treaty Supremacy explains that resistance to the struggle for racial justice triggered the transformation of the treaty supremacy rule. The U.N. Charter, which entered into force in 1945, expressly prohibits racial discrimination. Civil rights plaintiffs cited the Charter’s human rights provisions to challenge discriminatory state laws. In Fujii v. California, 217 P.2d 481 (Cal. App. 2d 1950), a California appellate court applied the treaty supremacy rule to strike down California’s Alien Land Law because it discriminated against Japanese nationals in violation of the U.N. Charter. The decision sparked controversy because it seemed to suggest that the United States had abrogated Jim Crow when it ratified the U.N. Charter.

Determined to maintain racially discriminatory state laws, conservative legislators (led by Republican Senator John Bricker of Ohio) proposed a Constitutional amendment that would require approval of implementing legislation by both houses of Congress before a human rights treaty could supersede conflicting state laws. Bricker’s opponents argued that the amendment was unnecessary because the treaty supremacy rule only applied to self-executing treaties. While the proposed amendment was ultimately defeated, this patently erroneous interpretation of the U.S. Constitution gradually gained acceptance. In 2008, the U.S. Supreme Court endorsed this interpretation of the treaty supremacy rule in Medellin v. Texas. That decision authorized the state of Texas to execute a Mexican national without the hearing required by the International Court of Justice’s Avena decision in violation of Article 94 of the U.N. Charter (which requires compliance with ICJ decisions).

The Death of Treaty Supremacy will be of particular interest to scholars whose work intersects with international human rights law. Environmental justice scholars, for example, have long grappled with the absence of legal remedies for the concentration of polluting industries and hazardous waste disposal facilities in neighborhoods populated by Latinos and African-Americans. U.S. anti-discrimination law has failed to curb the disparate siting of polluting facilities in communities of color by state and local governments because the U.S. Supreme Court has interpreted the Equal Protection Clause of the U.S. Constitution to require proof of discriminatory intent. Discriminatory purpose is extremely difficult to prove. Much discrimination is entirely unconscious. Many race-neutral policies have disparate impacts on communities of color despite the absence of discriminatory purpose because they reinforce pre-existing structural disadvantages caused by unequal access to education, housing, and employment. Title VI of the Civil Rights Act of 1964, which prohibits discrimination by programs receiving federal funds, has likewise been interpreted to require proof of intentional discrimination.

International human rights law provides more robust protection against environmental injustice than U.S. law. In 1994, the United States ratified the International Convention on the Elimination of All Forms of Racial Discrimination (CERD treaty), which defines racial discrimination to encompass government actions with discriminatory purpose as well as government actions with discriminatory impacts. The objective of the treaty is not simply formal equality through racially neutral laws and policies, but the attainment of substantive equality.

The treaty supremacy clause, as interpreted prior to World War II, would enable plaintiffs in environmental justice cases to invoke the CERD treaty to challenge state laws and policies that have a disparate impact on communities of color, including laws relating to the siting of polluting facilities. As The Death of Treaty Supremacy points out, the disconnect between U.S. Constitutional law and the evolving norms of international human rights law explains, at least in part, the Supreme Court’s re-interpretation of the Equal Protection Clause in Brown v. Board of Education and related cases to prohibit state-sponsored racial segregation. Disparate impact litigation pursuant to the CERD treaty would obligate federal courts to grapple with the growing gap between the narrow interpretation of antidiscrimination norms adopted by the United States and the more expansive requirements of international human rights law.

The Death of Treaty Supremacy is meticulously researched, carefully argued, and highly compelling. The book reminds us that international law has always been part of U.S. law, and provides a warning about the dangers of surreptitious re-interpretation of foundational constitutional principles. Lawyers, judges, and legal scholars should read this book and consider its implications for the relationship between domestic law and the nation’s international human rights obligations.

The Death of Treaty Supremacy: An Invisible Constitutional Change–Introduction to Opinio Juris Book Symposium

by David Sloss

[David Sloss is a Professor of Law at Santa Clara University.]

I want to thank Opinio Juris for hosting a symposium on my new book, published last fall by Oxford University Press. I also want to thank the group of distinguished scholars who have agreed to offer their perspectives on The Death of Treaty Supremacy as part of this symposium. I very much look forward to their contributions.

The book’s central claim is that an invisible constitutional revolution occurred in the United States in the early 1950s. From the Founding until World War II, the treaty supremacy rule, codified in Article VI of the Constitution, was a mandatory rule that applied to all treaties. As originally understood, the rule consisted of two elements. First, all valid, ratified treaties are supreme over state law. Second, judges have a constitutional duty to apply treaties when a treaty conflicts with state law.

The Framers adopted the treaty supremacy rule to solve a specific problem. Before adoption of the Constitution, state governments refused to comply with U.S. treaty commitments. Treaty violations by the states created serious foreign policy problems for the nation. James Madison and others highlighted this problem as one of the primary reasons for adopting a new Constitution. The Framers designed the Constitution to ensure that state governments would not violate U.S. treaty obligations without express authorization from the federal political branches.

The treaty supremacy rule was a bedrock principle of U.S. constitutional law from the Founding until World War II. However, the advent of modern international human rights law sparked a process of invisible constitutional change. The United States ratified the UN Charter in 1945. The treaty obligates UN member states to promote “human rights . . . for all without distinction as to race.” Beginning in the late 1940s, litigants filed dozens of suits challenging discriminatory state laws by invoking the Charter together with the treaty supremacy rule. In the landmark Fujii case, 217 P.2d 481 (Cal. App. 2d 1950), a court applied the traditional treaty supremacy rule to invalidate a California law that discriminated against Japanese nationals. The court held that state law conflicted with the Charter and the Charter superseded California law under Article VI of the Constitution.

Fujii sparked a political firestorm because it implied that the United States had abrogated Jim Crow laws throughout the South by ratifying the UN Charter. In response, conservatives lobbied for a constitutional amendment, known as the Bricker Amendment, to abolish the treaty supremacy rule. Senator John Bricker, the leading proponent of the amendment, sought to prevent the United States from becoming a party to any human rights treaty. Although the Amendment never passed, Senator Bricker and his supporters achieved some of their objectives through a process of invisible constitutional change, which I call the “de facto Bricker Amendment.”

Bricker’s opponents resisted the proposed Amendment by reinterpreting the Constitution. Before World War II, a firm consensus held that the treaty supremacy rule was a mandatory rule that applied to all valid, ratified treaties. Controversy over the Bricker Amendment gave rise to a new constitutional understanding—that the treaty supremacy rule is an optional rule that applies only to “self-executing” treaties. Thus, modern doctrine holds that the treaty makers may opt out of the rule by deciding, at the time of treaty negotiation or ratification, that a particular treaty provision is “non-self-executing” (NSE). In sum, the de facto Bricker Amendment converted the treaty supremacy rule from a mandatory to an optional rule by creating an exception for NSE treaties.

The lawyers who invented the NSE exception to the treaty supremacy rule in the early 1950s claimed that they were merely following nineteenth century precedent. That claim was patently false. Before World War II, self-execution doctrine and treaty supremacy doctrine were independent, non-overlapping doctrines. The treaty supremacy rule governed the relationship between treaties and state law. Self-execution doctrine addressed the division of power over treaty implementation between Congress and the President. In the 1950s, though, self-execution doctrine effectively swallowed the treaty supremacy rule, creating a novel NSE exception to the treaty supremacy rule. The NSE exception now controls the domestic application of human rights treaties in the United States.

The Supreme Court applied the NSE exception to the treaty supremacy rule in Medellín v. Texas (2008). The Court held, in effect, that a treaty that was admittedly binding on the United States was not binding on the State of Texas because it was not self-executing. Medellín was directly contrary to the original understanding because the Court permitted Texas to violate U.S. treaty obligations without authorization from the federal political branches. In contrast, the Framers adopted the Constitution’s treaty supremacy rule to prevent state governments from violating a valid, ratified treaty without authorization from the federal political branches.

The world has changed dramatically in the past 230 years. However, some principles endure. In a system that divides power between the states and the federal government, it is absurd to grant states the power to violate national treaty commitments. As James Madison said more than two hundred years ago, a constitutional system that grants such power to sub-national governments would be “an inversion of the fundamental principles of all government.” It would create “a monster, in which the head was under the direction of the members.” The de facto Bricker Amendment created Madison’s monster. It is our responsibility to tame that monster.

Symposium: The Death of Treaty Supremacy-An Invisible Constitutional Change

by Jessica Dorsey

This week, we are hosting a symposium on The Death of Treaty Supremacy: An Invisible Constitutional Change the latest book from David Sloss, Professor of Law at Santa Clara University. The book was published last fall by Oxford University Press and the American Society of International Law recently selected the book to receive the 2017 Certificate of Merit for a Preeminent Contribution to Creative Scholarship.

A short description:

This book provides the first detailed history of the Constitution’s treaty supremacy rule. It describes a process of invisible constitutional change. The treaty supremacy rule was a bedrock principle of constitutional law for more than 150 years. It provided that treaties are supreme over state law and that courts have a constitutional duty to apply treaties that conflict with state laws. The rule ensured that state governments did not violate U.S. treaty obligations without authorization from the federal political branches. In 1945, the United States ratified the UN Charter, which obligates nations to promote human rights for all without distinction as to race. In 1950, a California court applied the Charters human rights provisions along with the traditional supremacy rule to invalidate a state law that discriminated against Japanese nationals. The implications were shocking: the decision implied that the United States had abrogated Jim Crow laws throughout the South by ratifying the UN Charter. Conservatives reacted by lobbying for a constitutional amendment, known as the Bricker Amendment, to abolish the treaty supremacy rule. The amendment never passed, but Bricker’s supporters achieved their goals through de facto constitutional change. Before 1945, the treaty supremacy rule was a mandatory constitutional rule that applied to all treaties. The de facto Bricker Amendment converted the rule into an optional rule that applies only to self-executing treaties. Under the modern rule, state governments are allowed to violate national treaty obligations including international human rights obligations that are embodied in non-self-executing treaties.

In addition to Professor Sloss’ introductory and concluding remarks, there will be posts from Carmen Gonzalez, John Coyle, David Stewart, Tom Lee, John Parry, Peggy McGuinness and Paul Dubinsky. We look forward to the discussion from our contributors and the ensuing commentary from our readers.

The Post-Election Crisis in The Gambia: An Interplay of a Security Council’s “Non-Authorization” and Intervention by Invitation

by Benjamin Nussberger

[Benjamin Nussberger is a PhD student and research fellow at the Institute for Peace and Security Law at University of Cologne. He is currently pursuing a LLM degree at Columbia Law School.This post is a response and addendum to Professor Helal’s post Crisis in The Gambia: How Africa is Rewriting Jus ad Bellum.]

The Security Council did it again. Intentionally? No answer. Striking? It seems so.

After famous resolution 2249 (2015) concerning the Syrian war, after under-the-radar-flying resolution 2216 (2015) concerning the Saudi military intervention in Yemen, the Security Council did it again responding to the constitutional crisis in The Gambia with its resolution 2337 (2017): it “non-authorized” the use of force. This however should not be equated with a prohibition of the use of force. Rather, it seems, the Security Council not only leaves open, but apparently also opens and encourages alternative avenues for States to legally resort to force – without the Security Council’s express authorization.

Accordingly, by analyzing resolution 2337 (2017) more closely and further scrutinizing the intervention by invitation doctrine against the facts of the post-election Crisis in the Gambia (which may be recalled here and here), I would like to take up and develop Professor Helal’s reflections on the role of the intervention by invitation doctrine. Professor Helal raises concerns about the ineffectiveness of Adama Barrow, concluding that the intervention by invitation is “at best questionable.” Moreover, I would like to interweave this with a response to Professor Hallo de Wolf’s fear that “this latest example of regional intervention [in The Gambia] will come to reside next to others in the unfortunate category of illegal, yet legitimate interventions (…)” and that “it would appear nobody cares for the legality or illegality of ECOWAS’s use of force as long as the bad guy was displaced.”

A “non-prohibitive non-authorization”

I agree with Professor Helal: An express authorization of any use of force cannot be deduced from resolution 2337 (2017), as none of the indicators generally accepted to signify the authorization of the use of force are present. The Council does neither act under Chapter VII nor Chapter VIII. The Council does not determine a threat to international peace and security. It does neither decide nor authorize. It does not use the key term “necessary measures”, and thus refrain from basing its language on the ECOWAS Authority’s 17 December summit and the AU Peace and Security Council’s communiqué of 13 December 2016. To scatter any doubt, members of the Security Council, e.g. Uruguay (as well as Bolivia, and Egypt), reaffirmed this conclusion underscoring that “nothing in resolution 2337 (2017) can be interpreted as express authorization of the use of force.” (emphasis added) While a previous draft had included the Council’s full support to ECOWAS’ commitment “to take all necessary means”, this had been apparently watered down to comfort Russian objections. Thus, there is nothing in resolution 2337 (2017), which may be read to constitute an express mandate or endorsement of military force.

The non-authorization, however, should not be interpreted as a prohibition of a use of force. As mentioned earlier, some States did favor an endorsement of military means in the earlier stage of drafting. And this may also be traced in the resolution: the Council “expresses its full support to the ECOWAS in its commitment to ensure by political means first, the respect of the will of the people of The Gambia as expressed in the results of 1st December elections” (para 6, emphasis added). What is more, the Council “welcomed” the ECOWAS’ and AU’s decisions, in which both organizations announced to take “all necessary measures to strictly enforce” the election results. Statements of Russia and Britain back this interpretation. Russia’s deputy ambassador Petr Iliichev was quoted later: “if diplomacy fails, Barrow can request military or other assistance.” and Britain’s deputy ambassador Peter Wilson was quoted: “it’s very clear that if president Barrow asks for assistance, then that’s something as the legitimate president of Gambia he’s perfectly entitled to do.”

Accordingly, viewed against the drafting history, this allows to conclude that the Security Council was aware of an eventual military solution – and by elegantly framing it as support for peaceful and political means of dispute settlement first, it left the door to the resort to force in accordance with the UN Charter ajar.

Intervention by invitation

So what might this mean for the only viable justification for a resort to military means – an intervention by invitation?

As a short reminder, the doctrine of intervention by invitation is firmly rooted in State practice and accepted by the ICJ (Military and Paramilitary Activities In and Against Nicaragua, Armed Activities on the Territory of the Congo Case). It assumes that if a State’s government has requested military assistance, the invited State(s) might use force on the requesting State’s territory – without violating Article 2(4) UN Charter. Admittedly, it remains unclear whether, and if so when, the new president, Barrow, had issued such an invitation or request for military help to put him into power. Assuming he did, could this justify a military solution of the conflict?

As a side note, it shall be mentioned that the ECOWAS intervention in the Gambian constitutional crisis does not constitute State practice, shedding light to the murky waters of an intervention by invitation in a “civil war situation”, which recently has been subject to much debate: For the simple, but – as, e.g., the US has rightly commented – commendable fact that The Gambia did not immerse in armed confrontations.

Hence, if the president’s consent enfolds justifying effect, (only) dangles on the fundamental question: who is president? Who may legitimately call for military support by a foreign State, where competing claims to the presidency, entitled to act and speak on behalf the State, are advanced?

I agree that it is essentially this question, which puts the intervening States’ reliance on the doctrine of intervention by invitation alone on shaky grounds. This, however, is nothing exceptional or new, but rather common in scenarios of intervention by invitation. Two criterions are discussed in State practice and literature for answering this question. Traditionally, the government’s effectiveness has been a decisive component. More recently, legitimacy aspects arguably play an increasingly important role for determining a government’s representativeness. In the Gambian post-election crisis, both criteria are not unproblematic. As regards the effectiveness criterion, and as Professor Helal has rightly pointed out, Barrow was trapped in exile in Senegal, unable to take office at that moment in time. So his effectiveness appeared basically limited to an external dimension when the use of force began. The international community virtually unanimously recognized him as president and maintained diplomatic relations with him, and no longer with Jammeh. On the other hand, Jammeh’s effectiveness may be reasonably challenged as well: only some paramilitary units expressly said to defend him. The Gambian army chief declared not to involve the army into the political dispute; the Gambian navy decided to side with Barrow. Jammeh stood in isolation in the international community. This leaves two persons without a clear preponderance regarding effective control. Regarding the latter aspect, one may however ask in how far Jammeh’s ineffectiveness would have an impact on ineffective Barrow’s capability to call for help?

The legitimacy criterion seems to be clearer. Barrow has been elected president. He can base his claim to presidency on the will of the Gambian people expressed in “peaceful and transparent” elections, as the Security Council has observed (SC Resolution 2337, preamble 4). Nonetheless, this strong legitimacy basis has some scratches as well. Jammeh invoked irregularities taken place in the elections and referred the issue to the Constitutional Court – an argument advanced and a process taking place, which is not unknown, uncommon and without acceptance in “world-leading” democracies as well. Moreover, Jammeh declared a state of emergency, reacting to “unprecedented and extraordinary amount of foreign interference in the country’s internal affairs.” The Gambian parliament extended Jammeh’s mandate for 90 days, until the Supreme Court decided upon the matter. In this respect, the parliament also attempted to change the relevant constitutional provisions. Obviously, the parliament’s argumentation may be contestable from a rule of law as well as a political perspective, especially if one takes the circumstances and timing into consideration. The Security Council’s reaction in resolution 2337 (2017) seems to aim to express these concerns: “strongly condemning (…) the attempt by the Parliament on 18 January 2017 to extend President Jammeh’s term for three month beyond his current mandate.” In light of international norms of democracy (e.g. Art. 23 (4) of the African Union Charter on Democracy, Elections and Governance, to which the Security Council refers to) this raises difficult questions, exhibiting the tension in which international norms on and international assessment of democracy operate: Does all this still constitute a legitimate democratic process or does it exceed the competency of the parliament? What standard should apply? Is the parliament prohibited to change its constitution? And who should have the last word in deciding on the electoral process and the Gambian constitution: the State’s elected people’s representatives or the international community? The Security Council responded only with deafening silence, announcing the outcome of its assessment: this attempt was strongly condemnable (and illegal?). With all this in mind, one may also want to raise one more question: if we are very strict on this – how to assess an inauguration procedure taking place in the State’s embassy within a foreign country?

Despite these issues, which are yet another example illustrating that a clear-cut assessment in contested situations remains utopian, the international community takes an unambiguous position: The ECOWAS and the AU recognize Barrow as President of The Gambia. The Security Council also makes it very clear that it holds Barrow to be president of Gambia from 19 January 2016 onwards. In this respect it is also interesting to note that the Security Council reminds Jammeh of his contradictory behavior, by calling upon him to keep to the letter and spirit of his concession speech delivered on 2 December 2016 (para 5).

As I have argued elsewhere, an unambiguous international assessment and determination of relevant legal facts (in the case at hand the presidency) constitutes an important facet and indicator for States’ assessment of the question whether an intervention by invitation is permissible. Particularly, the Security Council’s assessment bears relevance. This invites us to shortly recapitulate. In a nutshell, the Security Council says the following in resolution 2337 (2017): It does not authorize the use of force. It does not prohibit the use of force. It takes note of and even welcomes the ECOWAS plans to eventually solve the conflict by military means. And it draws a remarkably clear and unambiguous picture of the conflict and its understanding of the legal facts relevant for a justification of a use of force.

It is my submission that the Security Council thereby (indirectly) assesses the related and relevant legal and factual questions. It hints to its understanding that a use of force may be legal if based on the doctrine of intervention by invitation, and thus equips any legal argumentation of the State resorting to force with greater legitimacy, persuasiveness, strength, and legal value. The case at hand is particularly illustrative, as the Russian and Britain diplomats quoted above even expressly voice their opinion that a military solution to the conflict may be based on Barrow’s request.

This strategy of “non-prohibitive non-authorization combined with fact-clearing, strengthening of alternative avenues of justification” is not new. Lately, the Security Council seems to have increasingly applied this approach to address various conflicts. For example, resolution 2249 (2015) concerning Syria created a skillful constructive ambiguity, enabling and de facto strengthening States to rely on self-defense measures, as Paulina Starski has explained here. In the still ongoing Yemen conflict, the Council’s resolutions and presidential statements as well as resolution 2216 (2015) clarified substantial legal facts relevant for the justification of the intervening coalition (for a detailed account see here). In both cases, some States had initially called for a mandate, which the Council was not ready to grant. In both cases, these States were comfortable and pleased with the above-sketched outcome. In both cases, the Security Council was aware of the States using force and their respective justifications. In both cases, the Council clarified facts, assessed the underlying legal concepts, and opened up and strengthened legal avenues justifying a use of force – be it self-defense or the intervention by invitation doctrine. In both cases, States invoked the resolution in addition to the general justifications, such as consent or the right to self-defense. And in both cases, except for some scant protests, a big international outcry against the intervention’s legality was inexistent. To the contrary, especially in the case of Yemen, the international community was almost unanimously ready to accept the resort to force as legal. Finally, in this respect both cases resemble the crisis in The Gambia. It is not the place to revisit and critically assess this strategy in detail. Yet, it invites us to pose questions in how far it contributes to an evolution or even changes the contemporary system of collective security.

Accordingly, in line with these developments and lines of arguments, if there has been an invitation, an intervention by ECOWAS may be arguably seen to be in accordance with international law. Different reasons for this conclusion may be advanced. One could read the incident as an additional example of State practice heralding the farewell of effectiveness as decisive criterion and turning to the criterion of legitimacy. But this seems not to be the main motivation. Strikingly, the Security Council does use the word “legitimate” other than when determining that Jammeh is no longer the “legitimate president.” Unlike to comparable incidents (e.g. Yemen Res 2216 (2015)) Barrow is not explicitly endorsed as “legitimate president”. Hence, I submit that the best understanding of the Gambian crisis, avoiding difficulties of legitimacy and effectiveness, is the following: accepting the Security Council’s assessment as a decisive indicator (amongst others), the non-prohibitive non-authorization, indirectly opening and strengthening the alternative avenue of the doctrine of intervention by invitation, eventually leads to the international community’s acceptance of ECOWAS intervention being in accordance with international law.

So, yes, the justification of “intervention by invitation” alone may be seen to stand on shaky grounds. But, no, the international community does not “not care” about the legality. Rather, it provides a strategy to legally resort to military force if diplomatic means fail – yet, admittedly, only for the time after inauguration, leaving the problem of the threat to use force unresolved. It is another question though, whether this strategy is commendable.

Strangely Enough, President Trump Can Use His Executive Power Over Immigration to Advance Human Rights and Battle Corruption

by Julian Ku

statue-of-liberty-1210001__340The legal battle over President Trump’s recent executive order has cast a spotlight on the president’s broad and potentially abusive powers over U.S. immigration laws.  But it is worth remembering that this power can be used in many different ways, including in ways that the President’s critics would support.  This past December, Congress delegated to the president broad discretionary powers to use his executive power over immigration to protect international human rights and to battle against corruption. These powers could advance the protection of human rights far more effectively than any Alien Tort Statute lawsuit.  But a successful use of this new law would require President Trump and his critics to work together. And this prospect seems awfully hard to imagine right now.

Enacted as part of the FY 2017 National Defense Authorization Act and modeled on a similar law targeting Russia only,  the “Global Magnitsky Human Rights Accountability Act” delegates to the President broad powers to impose targeted sanctions on foreign persons who commit or materially assist the commission of “gross violations of internationally recognized human rights” or “acts of significant corruption.”  In particular, the President is authorized to deny or revoke visas to foreign “persons”, or simply deny them entry.  A foreign “person” is specifically defined to include dual nationals.  (The exercise of this power might sound familiar to those of us still wrestling with the impact of last week’s immigration order.)

The Global Magnitsky Act goes farther than visa denial, however, and also authorizes the President to block “all transactions in property” of a foreign person that are in the United States or are in the possession of a U.S. person.   “Blocking” means that the property is frozen so that the owner cannot exercise any power or control over it despite still retaining title.

In order to impose such sanctions, the President simply needs to determine, based on “credible evidence,” that a foreign person either is “responsible” for a “gross violation[]” of internationally recognized human rights or acted as an agent for that person.  The same “credible evidence” standard applies to sanctions for corruption, or “materially assisting” corruption.

Taken together, it is hard to read this law as anything other than a grant of highly discretionary or possibly unreviewable power for the President to block the entry and/or freeze the assets of any foreign national he thinks is connected to human rights violations or corruption.  It might be unreviewable because courts are hesitant to review presidential exercises of a delegated power to impose sanctions, and even if it did, it would be nearly impossible for a court to find the lack of “credible evidence”.

Thus, President Trump has a new sweeping, possibly unreviewable power to deny entry into the U.S. and/or freeze the property of foreign nationals on the basis of human rights violations or corruption.  Previously, the President would have had to invoke a “national emergency” under the International Emergency Economic Powers Act to impose such sanctions, and violations of human rights were not specifically authorized as the basis for imposing such sanctions.  The Global Magnitsky Act thus hands President Trump a pretty powerful tool to support and advance the cause of international human rights.   Will he use it?

It is hard to predict anything for certain about our new president, but the statute does build in some mild procedural encouragements for him to use this new power.  For instance, the President must issue a report to four congressional committees (Senate Banking, Senate Foreign Affairs, House Finance, and House Foreign Affairs) reporting on sanctions he has imposed within 120 days of the law’s enactment (April 7, 2017).  Moreover, the President must also respond within 120 days to any request by the chair and ranking member of one of the congressional committees to impose human rights sanctions.  If the chair and ranking member of one of the House committees and one of the Senate committees sends him a request to impose corruption related sanctions, he must also respond within 120 days.  The Assistant Secretary of State for Democracy, Human Rights, and Labor is authorized to submit the names of possible sanctions targets to the Secretary of State for review. Moreover, nothing in the statute prevents the President from acting on his own.  Human rights NGOs, many of whom are the Trump administration’s fiercest critics, could also submit lists if they choose.

Even if President Trump uses this power, will it have any effect? How many “gross violators” of human rights or corrupt foreign government officials want to enter the U.S. or have property or assets here?  It is hard to say for sure, but the number is probably more than zero.  It might even be a lot more than zero.  In any event, it is also worth noting that the sanctions imposed by the Global Magnitsky Act are almost as severe as any judgment that could be collected in a lawsuit brought under the Alien Tort Statute.  Will petitioning the White House to impose sanctions replace ATS lawsuits?  Probably not, but if used aggressively, the Global Magnitsky Act would have a much greater impact in support of international human rights than any five ATS lawsuits put together.

It is still too early to tell how this law will work in practice.  But human rights and anti-corruption NGOs should be dusting off their political lobbying skills and start approaching the State Department and the chairs and ranking members of the relevant congressional committees with names. Since Maryland Senator Ben Cardin sponsored the Global Magnitsky Act and is the ranking member of the Foreign Affairs Committee, I bet he would be more than happy to submit some names to President Trump.    Such lobbying is a lot easier than filing an ATS lawsuit, and has a much higher chance of having a real impact.   But it will also mean petitioning an unpopular president to exercise his much vilified executive powers on their behalf. Will a future photo from the Oval Office depict President Trump signing a Magnitsky Act executive order while officials from Amnesty International and Human Rights Watch stand beside him to applaud him?  As I said, this is awfully  hard to imagine today, but stranger things have happened.

The Important Role of International Law in Legal Challenges to Trump’s Anti-Refugee Order

by Jonathan Hafetz

[Jonathan Hafetz is Professor of Law at Seton Hall University School of Law.]

President Trump’s recent executive order temporarily barring the entry of refugees and others has provoked widespread protests, inflicted unnecessary suffering, and undermined the United States’ reputation across the world.  Several district judges have temporarily blocked its enforcement, at minimum preserving the status quo (by halting the removal of individuals who had traveled to the United States) until the legal challenges can be resolved.  The most recent ruling, issued by a federal judge in Los Angeles, went as far as to enjoin the federal government from denying entry into the United States to holders of valid immigrant visas from countries covered by Trump’s order.  I believe Trump’s order violates the U.S. Constitution, as I’ve briefly described here and Adam Cox has discussed at length here.  It also transgresses international law.  And while the international law violations may not alone trigger the order’s invalidation by a federal judges, they strengthen the domestic law challenges—statutory and constitutional—to the order.

Trump’s order suspends entry of all refugees to the United States for 120 days, bars Syrian refugees indefinitely, and blocks entry into the United States for 90 days of citizens from seven predominantly Muslim countries.  The Trump administration (via Department of Homeland Secretary John Kelly) subsequently sought to clarify that legal permanent residents (LPRs) from those seven countries were not categorically banned but would instead be issued waivers on a case-by-case basis. A more recent White House “clarification” states that the order will not apply to any LPRs. How much weight judges will accord these post hoc damage control efforts is another question, particularly given the continuing evidence of the order’s arbitrary enforcement and Trump’s own proven disregard for facts and for the truth.  Further, this clarification does not address claims by non-LPRs.

The order contravenes the 1951 Refugee Convention and 1967 Protocol by discriminating among refugees based on religion and country of origin.  The ban also violates applicable human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), which prohibits non-discrimination across a broad range of state action, including entry decisions, and the Convention on the Elimination of All Forms of Racial Discrimination (CERD), which bars racial and religious discrimination in immigration decisions.  (See Jay Shooster’s excellent post here). Further, as Shooster notes, both the ICCPR and CERD prohibit laws with discriminatory effects and thus do not require proof of intent (although there is ample evidence of discriminatory intent behind Trump’s executive order, as noted below).  For example, a 2004 decision by the UN Human Rights Committee interprets the ICCPR’s anti-discrimination prohibition to encompasses action that has an “exclusive and disproportionate effect on a certain category of persons.”

The federal court rulings thus far show Trump’s order is vulnerable to anti-discrimination challenges based on national origin and religion.  The Trump administration’s claim that the order is not directed at Muslims is undercut by Trump’s repeated statements openly expressing disfavor of Muslims.  Indeed, in signing the order, Trump vowed to “keep radical Islamic terrorists out of the United States.”  And Rudy Giuliani stated that Trump wanted a “Muslim ban” and asked him to assemble a commission to show him “the right way to do it legally.”

Because the relevant treaties are non-self-executing, their bite in litigation over the executive order will be in their interaction with domestic law.  One statutory argument some petitioners will advance is that the executive order violates section 202(a) of the Immigration and Nationality Act (INA).  Enacted in 1965—and motivated by a long history of discrimination in immigration law—this provision bars discrimination in “the issuance of an immigrant visa” based, inter alia, on nationality, place of birth, or place of residence.  International law bolsters claims that section 202(a) should be interpreted to prohibit the type of national origin discrimination imposed by Trump’s order against those seeking permanent residence status.

The Trump administration is relying heavily on section 212(f) of the INA, which allows the president to suspend entry of any class of aliens where it would be “detrimental to the interests of the United States.”  But, although broad, this grant of authority should prove vulnerable where, as James C. Hathaway notes, there is no “serious data linking refugees to a terrorist threat” and where the evidence instead points to religious animus as the motivating factor.  Here again, non-discrimination provisions under international law will reinforce construction of federal law against the order’s validity.

International law also supports constitutional challenges, particularly the claim that removal without judicial review violates the Due Process Clause of the Fifth Amendment.  Under the Refugee Convention and international human rights law, individuals have a right apply for asylum, cannot be removed to a country where they face a risk of torture or persecution, and are entitled to a determination on their claims.   Federal law implements these non-refoulement obligations by providing for individualized determinations and judicial review.  A categorical ban that denies those fleeing persecution the opportunity to seek relief and review—as required under international law and provided for by federal statute—violates due process.

While constitutional arguments will remain front and center, the order’s incompatibility with international law—not to mention with U.S. international interests—should magnify judicial skepticism about the expansive readings of the plenary power doctrine and executive authority that Trump will advance in defending the order.

Why You Shouldn’t Panic Over President Trump’s Draft Executive Orders on Funding for International Organizations

by Julian Ku

Because I am on sabbatical this semester, I have been lying low during these first few (very busy!) weeks of the Trump administration.  But I have noticed that the sheer volume of Trump administration actions, and reactions to its actions, is confusing both its supporters and its critics.  While Trump has already taken actions that are worthy of severe criticism (see, e.g., his much-maligned immigration executive order), some of his other proposed actions are being overblown as further threats to the Republic.  This type of overstatement and mischaracterization is as damaging to Trump’s critics as they are to the Trump administration itself.

For instance, two draft Trump executive orders on international organizations and multilateral treaties leaked late last week causing a flurry of instant condemnation on social media and elsewhere.  The initial reports about these orders, especially on twitter and in headlines, suggested that Trump would by executive order “to dramatically reduce funding of United Nations.”  New York Magazine’s summary of the draft order is particularly sensational:

….Donald Trump is preparing to decimate this tool of American hegemony [the U.N.] — and global peacekeeping and poverty reduction — with a stroke of his pen.

The Trump administration has drafted an executive order that would radically reduce American funding of the U.N. and other international organizations. The order would terminate all U.S. funding to any international body that meets any one of a long list of criteria. Among other things, the order would bar American funding of any organization that gives full membership to the Palestinian Authority or Palestine Liberation Organization, supports programs that fund abortion, or that is “controlled or substantially influenced by any state that sponsors terrorism.” (Emphasis added).

The problem with this summary is that it is totally inaccurate.  The actual draft executive order simply forms a committee to study and provide recommendations on whether and how to cut U.S. funding to the U.N. and other international organizations.  The order does not “terminate” anything with “a stroke of a pen.” Its most aggressive section would simply require the Committee to “recommend appropriate strategies to cease funding” international agencies that grants membership to the Palestinian Authority or supports terrorism.  Funding for these agencies is already prohibited by U.S. statute, so this is really an order to think of ways to comply with U.S. law.  To be sure, the order takes a much harsher and negative view of funding international organizations than prior U.S. administrations, but the order is hardly the end of the United Nations as we know it.  This is especially true if we recall that Congress, and not the President, has the power to fund or not fund international organizations like the U.N..

The draft executive order on multilateral treaties is potentially more significant because the President has broad powers to withdraw from treaties.  But the order itself simply creates another committee to review U.S. participation in all multilateral treaties that the U.S. is negotiating, in the process of considering ratification, or already ratified and joined.  The committee is instructed to recommend whether the U.S. should continue negotiating, ratifying, or being part of those treaties.

The only unusual part of this process is to elevate treaty review to an interagency committee. But such a review process is reasonable for any new administration.  The only real action in the draft order is a moratorium on submitting new treaties to the President or the Senate absent a committee recommendation.  This might slow down the already slow treaty ratification process, but given the glacial pace of Senate consideration of most treaties, I doubt this “moratorium” will have much an effect.

There is plenty to criticize and even protest in the new Trump administration’s flurry of executive orders and statements.  But Trump’s critics need to carefully distinguish between what is truly troubling and what bears watching, and what is not really significant. Otherwise, they risk undermining their credibility and the effectiveness of their critiques.  These two draft executive orders bear watching as a signal of the new administration’s priorities.  But they are not a cause for panic.

So everyone take a step back, and read beyond the headlines or twitter summaries before reacting and overreacting.  There is and will be plenty to criticize in the new administration.  Save your ammunition for when it is truly needed.

Crisis in The Gambia: How Africa is Rewriting Jus ad Bellum

by Mohamed Helal

[Dr. Mohamed Helal is an Assistant Professor of Law, Moritz College of Law & Affiliated Faculty, Mershon Center for International Security Studies – The Ohio State University.]

Academic writing and political commentary on jus ad bellum are overwhelmingly focused on the policies, practices, and positons of major military powers. Countries such as the five Permanent Members of the UN Security Council, and regional pivotal states that have been belligerents in major armed conflicts, such as India and Pakistan, Iran and Iraq, Israel and its Arab neighbors, Turkey, Ethiopia, Indonesia, and a few others, have attracted the most attention in scholarship on the law governing the use of force by states. One region that has received lesser attention is Africa.

This is unfortunate because recent developments in Africa are challenging some of the cardinal principles of jus ad bellum. The unfolding crisis in The Gambia is one example. Adama Barrow, a real estate developer, defeated long-term incumbent Yahya Jammeh in the presidential election held on December 1st, 2016. Unexpectedly for an eccentric Gaddafi-like authoritarian leader, who vowed to rule The Gambia for a billion years and claimed the ability to cure AIDS and infertility, President Jammeh conceded defeat and promised a peaceful transfer of power. However, on December 9th, in an equally surprising volte-face, Jammeh declared that he was rejecting the election results citing what he called “serious and unacceptable abnormalities.”

President Jammeh’s power-grab was roundly condemned by the international community. In addition to the customary criticism and expressions of concern from international and regional organizations, a summit of the leaders of the Economic Community for West African States (ECOWAS) adopted a resolution on December 17th recognizing the results of the December 1st election, pledging to attend the inauguration of President-elect Barrow on January 19th, 2017, and deciding to take “all necessary measures to strictly enforce the results of the 1st December 2016 elections.” The phrase: “all necessary measures,” is universally recognized as international law-speak for the authorization of the use of force.

After mediation efforts failed, ECOWAS issued an ultimatum to President Jammeh: either relinquish power by midnight on January 19th, or ECOWAS will forcefully intervene to install President-elect Barrow. Signaling that it meant business, ECOWAS forces from Senegal and Nigeria were mobilized on the border with The Gambia, and warned that they will intervene if President Jammeh failed to comply with the organizations’ ultimatum. On December 21st, a statement by the President of the Security Council noted that the Council welcomed and was encouraged by the decisions of the ECOWAS summit. Similarly, the African Union Peace and Security Council endorsed the election results and announced that it would not recognize Jammeh as President of The Gambia after January 19th.

As the January 19th deadline elapsed, events kicked into high-gear. Adama Barrow was sworn into office in The Gambia’s Embassy in Dakar, Senegalese forces crossed into The Gambia to enforce the ECOWAS resolution of December 17th, apparently pursuant to a request by-now President Barrow, and the UN Security Council unanimously adopted Resolution 2337, its first for 2017. The resolution, tabled by Senegal, does not authorize the use of force by ECOWAS. Rather, acting under Chapter VI, the Council endorsed the decision of ECOWAS and the AU to recognize Adama Barrow as President, welcomed ECOWAS’ decisions of December 17th, and expressed support for ECOWAS’ commitment to “ensure, by political means first, the respect of the will of the people of The Gambia.” With ECOWAS troops already in his country, on Saturday January 21st President Jammeh left The Gambia, apparently after shipping a number of his luxury cars and pocketing $11 million from the treasury.

The situation in The Gambia and international reactions to the crisis challenge certain aspects of jus ad bellum. Because Opinio Juris readers are probably familiar with the basic contours of jus ad bellum, suffice it to say that the UN Charter establishes a blanket prohibition on both the threat and use of force by states. The Charter does, however, admit two exceptions to this general prohibition: force used in self-defense against an armed attack, and forceful action authorized by the Security Council under Chapter VII of the Charter.

If based on a request by President Barrow, the Senegalese-led ECOWAS intervention beginning on January 19th fits – albeit imperfectly – within the established rules of jus ad bellum. As the International Court of Justice (ICJ) confirmed in the Armed Activities on the Territory of the Congo Case, jus ad bellum permits governments to invite foreign states to militarily intervene on their own territory. In fact, previous ECOWAS interventions, such as in Sierra Leone and Liberia were justified on requests by the governments of those states. The potential trouble with ECOWAS’ ongoing intervention in The Gambia, however, is that it was undertaken pursuant to a request from what is essentially a government-in-exile. In fact, Adama Barrow probably does not even qualify as a government-in-exile, but rather, should be considered a president-in-exile. The right of a president-in-exile, who has never exercised governmental authority or effective control over the territory of the state, to authorize foreign armed intervention is, at best, questionable and unsupported by ample precedent. (See: Intervention by Invitation).

Moreover, the run-up to ECOWAS’ intervention in The Gambia also challenges the prohibition on the threat of the use of force. Ian Brownlie defines a threat of force as “an express or implied promise by a government of a resort to force conditional on non-acceptance of certain demands of that government.” Accordingly, the decision of the ECOWAS summit on December 17th, which demanded that President Jammeh relinquish power and authorized the use all necessary measures to enforce the election results, combined with the mobilization of ECOWAS forces in the weeks before January 19th, constitutes a threat of force. As the ICJ opined in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the test of the legality of threats of force is: “if the use of force itself in a given case is illegal – for whatever reason – the threat to use such force will likewise be illegal.” The problem here is that enforcing election results or installing a democratically elected leader into office are not legitimate grounds for the use of force according to jus ad bellum. Despite attempts by a few governments and some scholars to advocate the so-called doctrine of pro-democratic intervention, which permits the resort to force to promote democratic government or prevent illegitimate takeovers of power, the overwhelming opinion is that this practice violates the UN Charter. Interestingly, however, the UN Security Council appears to have endorsed this threat of force by ECOWAS against President Jammeh. As aforementioned, the Presidential Statement of December 21st welcomed the actions of ECOWAS, and Resolution 2337, while falling short of authorizing the use of force and expressing its preference for the use of political means to settle the conflict, welcomed the decisions of the ECOWAS summit.

The chain of events and outcomes of a single conflict probably do not suffice to fundamentally alter rules as foundational to the international legal order as the prohibitions on the threat and use of force. The ongoing crisis in The Gambia does, however, pose some difficult legal questions and challenges certain aspects of jus ad bellum. Moreover, ECOWAS’ willingness and preparedness to threaten and use force to promote democracy is only one example of African practice that challenges the traditional rules of jus ad bellum. Another interesting development in Africa that has attracted limited academic attention (See here) is the ability of the African Union to authorize armed intervention to prevent genocide, war crimes, and crimes against humanity. This right, enshrined in Article 4(h) of the AU Constitutive Act, is essentially an African version of the Responsibility to Protect. What is notable, however, is that the African Union is not required to seek Security Council authorization before approving such an intervention. This directly challenges Article 52 of the Charter, which obliges regional arrangements to acquire Security Council authorization before engaging in enforcement action.

As Jeremy Levitt noted, “most policymakers, international lawyers, and legal academics outside of the continent consider African states to be objects rather than subjects of international law … The geopolitical, Eurocentric, and linear bias in Western legal academia, among others, is truly unfortunate.” Events in The Gambia and other developments in Africa suggest that African practice in jus ad bellum, and indeed in all fields of international law, deserves greater scholarly and policy attention.

International Law in the Asian Century: Conclusion to Opinio Juris and EJIL:Talk! Mini-Symposium

by Simon Chesterman

[Simon Chesterman is Dean of the National University of Singapore Faculty of Law. He is also Editor of the Asian Journal of International Law and Secretary-General of the Asian Society of International Law. Educated in Melbourne, Beijing, Amsterdam, and Oxford, Simon’s teaching experience includes periods at Melbourne, Oxford, Columbia, Sciences Po, and New York University.]

An academic learns most through errors and omissions. Far better to be criticized in text than footnoted in passing — both, of course, are preferable to being ignored. I am therefore enormously grateful that such esteemed scholars and practitioners were willing to take part in this joint Opinio Juris and EJIL:Talk! symposium and offer their responses to arguments put forward in my article for the current issue of EJIL, giving me and other readers refinements and additions that will enrich the larger conversation of which this symposium is a part.

The six commentators raise many issues, which I will address under three broad headings of power, history, and method. Each also brings to their paper a certain optimism or pessimism about what the future may hold, something to which I will return at the end.

1. Power

Judge Xue Hanqin puts at the forefront an argument about which I may have been too delicate. Asian states are not wary of delegating sovereignty because they are “ambivalent” about international law, she writes, but “because they do not believe that international law as … advocated and practiced would protect their fundamental rights and interests.” Similarly, regional integration is not primarily a matter of law, but of policy. The relative absence of regional institutions in Asia is not simply due to diversity and the other factors highlighted in the article; rather, it is attributable to geopolitical divisions within the region and in its various relations with other great powers.

This echoes a point made by Professor Eyal Benvenisti, who proposes that regional cooperation may be driven by external pressure as much as internal cohesion. The presence of an outside rival, for example, can encourage greater integration as the Soviet Union did for Europe and the United States did for Latin America. No such rival drove regional integration in Asia, though at the sub-regional level ASEAN has clearly been shaped by the ten member states’ relations with larger countries in East and South Asia as well as by their own identification as Southeast Asian.

Professor Antony Anghie also makes an important point about power in his historical survey. The Asian states that fought for the New International Economic Order (NIEO), he argues, had a vision but no power; by contrast, the Asian states that have power today lack any comparable alternative vision. Professor B.S. Chimni similarly suggests that the lack of a regional organization in Asia may be attributed to the fact that no Asian state has had the combination of material capability and legitimacy necessary to lead the formation of such an entity.

These observations about power go beyond the standard challenge to international law of its claim to being “law”. They recall far older critiques of the rule of law even in its domestic context: that it reifies power relations and thus is naturally embraced by whoever benefits most from the system. (It does and it is.) Nevertheless, as even the Marxist historian E.P. Thompson recognized, the rule of law remains an “unqualified human good” for its ability, nonetheless, to impose effective inhibitions upon power and defend against power’s all-intrusive claims.

So it is, I would contend, at the international level. Smaller states (like Singapore) are naturally most enthusiastic about the rule of law, but even larger ones (like China) are progressively seeing that it is in their enlightened self-interest to embrace such a world order, much as the United States did following the conclusion of the Second World War — a moment when its relative power was, arguably, at its greatest.

2. History

Turning to history, Professor Anghie rightly notes the incompleteness of my account of the achievements and failures of Asian states in their efforts to engage with international law. I concede that I do not do this rich history justice — though blame surely lies also with EJIL’s word limit. Some of this deficiency will be remedied in a forthcoming Handbook of International Law in Asia and the Pacific that I am editing for Oxford University Press together with Judge Hisashi Owada and Professor Ben Saul (and to which Professor Anghie is contributing a chapter).

As Judge Jin-Hyun Paik emphasizes, that history continues. It would be a mistake, for example, to assume that Asian states’ attitudes towards international law are static. As he shows in his own survey of international adjudication, those attitudes are clearly evolving. From relative non-engagement with the Permanent Court of International Justice, the movement has been from infrequent respondents to occasional applicants before the International Court of Justice and other tribunals, with important recent instances of Asian states consenting to litigate sovereignty disputes. Though Asian states remain the least likely to accept compulsory jurisdiction or appear in international tribunals, he demonstrates that the willingness to do both is increasing.

3. Method

The article attempts to downplay any grand claims about “Asia” and “international law” that might be inferred from the title. Nevertheless, such work is intended to be examined for its method as well as its conclusions.

Professor Chimni rightly warns of the dangers of cultural essentialism, geographical determinism, and materialist reductionism. (He generously gives me a pass on a fourth pitfall of orientalism.) His point that Asian states’ economic interactions play an important role in constructing their world view is well taken. He also emphasizes that reluctance to sign onto a given international regime need not imply opposition to its objectives, giving the example of Asian states’ treatment of millions of refugees.

Professor Robert McCorquodale queries the use of “Asia” as a category, in particular the relative absence of the Pacific and the Middle East from my analysis. Judge Paik also stresses the diversity of Asia, highlighting in particular the relative openness of East Asia to international cooperation. These are fair observations and the attitudes of the various sub-regions of Asia would bear further study. (For my own views on Southeast Asia, see this recent work on ASEAN.) Professor McCorquodale also suggests that the role of non-state actors might be a fertile line of inquiry — particularly the role played by business entities, given the relative willingness of Asian states to accept binding agreements in the area of trade and investment.

At a more fundamental level, Judge Xue queries whether the premise of the article — that Asian states benefit most from a world ordered by law — is properly made out. Claiming that the economic success of Asian states is due to international law and institutions may be a bit “self-conscious of the discipline”. She is surely correct that internal as well as external factors were responsible, but I would still argue that international law was necessary if not sufficient for the prosperity and stability that Asia now enjoys.

4. Futures

Judge Xue concludes that, while Asia should not be expected to carry on the role of “rule-taker”, there is some way to go before it becomes a meaningful “rule-maker”. In particular, she questions my declinist account of the United States, writing that it “is and will continue to be the dominant Power in the region.” On the issue of whether international law will become more representative and more democratic, she proposes that this challenge needs to be directed at the West as much as at the East.

On this last point, Professor Benvenisti suggests that President-elect Trump (who takes office shortly after this post goes live), embraces a conservative view of international law that is consistent with the Five Principles embraced by China and India for half a century, recently reaffirmed in the joint declaration by Russia and China. I suspect he is correct, but President Trump has routinely contradicted previously articulated positions and I am wary of joining the ranks of those who predicted what he would do and failed.

Though it is often invoked, there is no Chinese curse that means: “May you live in interesting times”. Provenance notwithstanding, there is no doubt that the coming years will be interesting. It is my hope that my article and this symposium will encourage greater analysis of how power is shaped by law and vice-versa, how history influences the present, and how research can better prepare us for whatever the future may bring.

Thank you, once again, to the organizers of this symposium and to Judges Xue and Paik, and Professors Anghie, Benvenisti, Chimni, and McCorquodale for taking the time to offer their thoughtful and thought-provoking responses. This is clearly not the end of this conversation, or even the beginning of the end. But it is, perhaps, the end of the beginning.