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International Law in U.S. Courts

Does the U.S. Congress Have to Approve the New WTO Agreement? Apparently Not.

by Julian Ku

Simon Lester of the IELP Blog raises an interesting and possibly important point about the new WTO Agreement just reached in Bali.  In order for the U.S. to enter into the agreement, will the U.S. Congress have to approve it?

On first glance, the answer would seem to be: “yes” since the U.S. Congress invariably is required to approve all U.S. trade agreements (as opposed to just the Senate, if it were a treaty).  In any event, I would have thought the U.S. Congress would have to approve the new Bali agreement as new legislation.  But then Simon points out this comment by U.S. trade officials from Inside U.S. Trade:

At the press conference, Punke said the Obama administration does not believe the deal requires congressional approval. “Our analysis of the trade facilitation agreement is it can be effectuated through administrative means and would not require legislation to put it into force,” he said. The obligations of the trade facilitation agreement are enforceable under the WTO Dispute Settlement Understanding.

This makes sense if one thinks of congressional approval of executive agreements as simply implementation of international obligations into domestic U.S. law.  But the congressional role in trade agreements has also been understood to fill in for the role of the U.S. Senate in approving treaties even if those treaties have no domestic law impact.  For U.S. law purposes, the President can’t enter into a treaty unless the Senate gives its advice and consent.  In the trade agreement context, I think many scholars have thought that Congress’ approval of those agreements by a majority of both houses serves the same role of giving the input of the legislature on the President’s decisions to enter into international agreements.

Or perhaps not.  Maybe the President really is free to bind the U.S. under international law via executive agreement on trade matters without any approval of Congress as long as no domestic law change is needed. This means that trade agreements really are just sole executive agreements that Congress is not really approving, but just implementing into U.S. domestic law.  And if no implementation is required, no Congress. This makes sense, but I just don’t think this the common understanding of how or why these congressional-executive agreements work.

One way out of this problem is (as Simon also points out) to understand the Bali Agreement as an amendment to the WTO Agreement. That agreement  (in Art. X) specifically outlines a mechanism for amendment which requires “consensus” (e.g. unanimity) or (depending on which provision is being affected) a two-thirds vote of the Ministerial Conference. In this way, Congress may be understood to have already approved future amendments to the WTO Agreement when it “approved” the original WTO Agreement back in 1994.  This “delegation” theory is probably a better explanation of why no congressional approval qua approval is needed for the Bali Agreement. Not totally satisfying, but probably enough here.

Why Is the New Agreement Between P5+1 and Iran Not Void?

by Kevin Jon Heller

A few days ago, in response to reports of an imminent deal between P5+1 and Iran concerning Iran’s uranium enrichment, Tyler Cullis and Ryan Goodman debated whether Iran has a “right” to develop nuclear power for civilian purposes. Tyler argued that Iran does, citing (inter alia) Art. IV of the Treaty on Non-Proliferation of Nuclear Weapons (NPT):

Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with articles I and II of this Treaty.

Ryan disagreed, arguing that any such “right” in the NPT has been superceded by a series of Security Council resolutions — beginning with Res. 1696 in 2006 — demanding that Iran cease its enrichment activities. In defense of his position, Ryan cited a number of eminent non-proliferation scholars, such as Larry D. Johnson, a former Assistant-Secretary-General for Legal Affairs at the United Nations:

While Iran claims that it has a right to enrich uranium as part of its peaceful nuclear energy program, the IAEA Board of Governors found that there had been a history of concealment and failure to declare certain activities to the agency, and therefore reported the matter to the Security Council. The Council has decided that over and above its obligations under NPT and the safeguards agreement with the IAEA, Iran was required, under Chapter VII of the Charter, to suspend all proliferation-sensitive nuclear activities, including all enrichment-related and all reprocessing activities, as confidence-building measures.

I think Ryan are Johnson are right that the “inalienable right” guaranteed by Iran’s ratification of the NPT is nullified — at least for now — by the various Security Council resolutions. So here is my question: why is the just-announced agreement between P5+1 and Iran not void ab initio for the same reason? SC Res. 1737 categorically prohibits Iranian uranium enrichment (emphasis mine)…

Doesn’t the U.S. Senate Care about Mercury?

by Duncan Hollis

On November 6, the United States signed the Minamata Convention on Mercury and deposited an instrument of acceptance indicating its consent to be bound by the treaty on its entry into force, making it the first nation to do so.  Here’s how UNEP summarizes the Convention:

The Minamata Convention for Mercury is a global treaty to protect human health and the environment from the adverse effects of mercury. It was agreed at the fifth and final session of the Intergovernmental Negotiating Committee in Geneva, Switzerland at 7 a.m. on the morning of Saturday, 19 January 2013.

The major highlights of the Minamata Convention on Mercury include a ban on new mercury mines, the phase-out of existing ones, control measures on air emissions and the international regulation of the informal sector for artisanal and small-scale gold mining.

The treaty certainly seems to address an important environmental problem with significant momentum from State participants — although opened for signature only a month ago, it has already garnered 93 signatories (of course, everyone most people know that those signatures are not the same as consent, which is why the United States took the additional step of depositing an instrument of acceptance).  The treaty will enter into force on the deposit of the 50th instrument of ratification, accession, acceptance or approval.   

What interests me about the Mercury treaty though is not just its contents — which are the latest iteration of multilateral environmental governance — but the process for U.S. acceptance.  Here’s how the State Department describes it:

The Minamata Convention represents a global step forward to reduce exposure to mercury, a toxic chemical with significant health effects on the brain and nervous system. The United States has already taken significant steps to reduce the amount of mercury we generate and release to the environment, and can implement Convention obligations under existing legislative and regulatory authority. The Minamata Convention complements domestic measures by addressing the transnational nature of the problem.

Three questions.  First, is the Administration considering this a congressional executive agreement? If so, shouldn’t they be a bit more specific about which U.S. laws authorize U.S. participation in this treaty.  In particular, it would be interesting to know if the legislation authorizes not just the regulation of mercury but U.S. participation in an international legal regime regulating mercury (I’m guessing it doesn’t).  That’s a big distinction, especially since the Obama Administration has already gotten into quite a dust-up over how it reads statutes with respect to authorizing U.S. consent to treaties (e.g., ACTA).  And if there’s no statutory authority to join the Minamata Convention, doesn’t that mean it must be a sole executive agreement?

Second, where’s the U.S. Senate in all this? As Oona Hathaway has explained there are few, if any, ways to rationally explain why certain international agreements go to the U.S. Senate for advice and consent versus those that Congress approves via ex ante or ex post legislation (let alone those that are done under the President’s sole executive powers).  Rationality aside, however, there is a long history of the Senate exercising its prerogatives over certain subject areas when it comes to giving advice and consent to treaties.  Thus, when President Bush suggested he’d not send the Moscow Treaty on arms control with Russia to the Senate, the Senate issued a non-partisan threat request that he do so . . . and the Administration changed course and obliged the Senate by sending it there.  I’d always understood multilateral environmental agreements to warrant similar treatment.  With one notable exception — the 1976 Long Range Transboundary Air Pollution Convention and its various protocols —  I believe multilateral environmental agreements have always gone through the Senate advice and consent process . . . until now.

This raises a third and final question:  Why did the Administration decide to bypass the Senate in consenting to the Minamata Convention? Perhaps the Senate indicated to the Obama Administration that they would not object to having this treaty concluded as an executive agreement?  Or, maybe the statutory authority (would love further details on what it is) is more robust than in the ACTA context.  Alternatively, I wonder, if this isn’t the Obama Administration response to the Senate’s repeated intransigence lately to approve any of the Administration’s major treaty priorities; from the Disabilities Convention to UNCLOS, the Senate’s been pretty deadlocked of late. Maybe the idea here was to send a warning shot to demonstrate that the Administration no longer feels bound to adhere to past practice when it comes to reserving certain treaty subjects for Senate attention and/or that the Administration wants to remind the Senate that it has other ways to pursue its international agenda if the Senate continues to delay or deny consent to the treaties it receives from the White House.

I’d welcome comments, especially from any readers who know more of the back story on this Convention or the U.S. approach to consenting to it.


Guest Post: Self-Executing Treaties, Criminal Law, and Bond v. United States

by William S. Dodge

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. He and Professor Sarah H. Cleveland filed an amicus brief in Bond v. United States arguing that the Offenses Clause provides an additional basis for upholding the constitutionality of the Chemical Weapons Convention Implementation Act.]

The difference between signature and ratification was not the only point of misunderstanding about treaties at the oral argument in Bond v. United States. Both counsel for the petitioner Paul Clement and some of the Justices also seemed confused about self-executing and non-self-executing treaties. Under U.S. law, the Chemical Weapons Convention (CWC) is a non-self-executing treaty. Article VII(1) provides that “[e]ach State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention” and, in particular, shall “prohibit natural and legal persons anywhere on its territory . . . from undertaking any activity prohibited to a State Party under this Convention, including enacting penal legislation with respect to such activity.” Justice Kagan asked if the treaty could have been self-executing, a possibility Mr. Clement seemed willing to entertain (transcript p. 7). Justice Scalia seemed to think that self-executing treaty would be better because it would require implementation by the states of the United States (transcript p. 33), though he was mistaken because a self-executing treaty binds the judges of every state under the Constitution’s Supremacy Clause. Justice Breyer seemed to think that a self-executing treaty would be worse because it would cut out the House of Representatives (transcript p. 48). And Solicitor General Verrilli made the point that if “a self-executing treaty that requires the President to negotiate and two-thirds of the Senate to ratify it, can impose an obligation of that kind, then it has to be the case that a non-self-executing treaty . . . that has . . . the additional structural protection of the passage of legislation by the Senate and the House and being signed into law by the President, can do what the self-executing treaty can do” (transcript pp. 32-33). Verrilli’s point echoes one that has been made by Rick Pildes, among others, in response to Nick Rosencranz’s reading of the Treaty Power.

The problem with all of this is that it makes little sense in the context of a criminal case like Bond. (more…)

A Friendly Request for Paul Clement, the Solicitor General, and the Supreme Court — Please read up on what it means to sign a treaty!

by Duncan Hollis

Lots of commentary today here and elsewhere on yesterday’s oral arguments in Bond v. United States, with vote-counters quick to predict the Court will retreat from Missouri v. Holland and the question is only how much.  I have views on the merits, but, frankly I’m having trouble getting passed the fact that two Supreme Court justices, the Solicitor General, and one of his predecessor’s, Paul Clement, seem to not understand how treaty-making works.

Simply put, throughout the argument, there were statements indicating a real misunderstanding of what it means for the United States to sign a treaty like the Chemical Weapons Convention.  To be clear, sometimes U.S. signature of a treaty can have immediate legal effect — what’s known as definitive signature — which is most often witnessed in bilateral agreements on topics within the President’s executive powers.  But for centuries now (actually as a byproduct of the U.S. revolution itself), the general rule for multilateral treaties is that a State signing a treaty does not bind the State to the treaty’s provisions; a further act of ratification is required.  It is the State’s deposit of this instrument of ratification for a treaty that’s in force which triggers the obligation to comply with the treaty’s requirements.  Signing treaties subject to ratification — what is known as “simple signature” serves several useful purposes — it signals the conclusion of negotiations, the signing State’s intention to commence domestic procedures to join the treaty, and the identify of those who can participate in preparatory meetings.  But it does not obligate the State to implement, observe or otherwise comply with any, let alone all, of the treaty’s articles.  The only international legal obligation a signatory State assumes is one not to defeat the treaty’s object and purpose pending its consent to the treaty (in which case it is bound to comply with it) or an indication that it does not intend to ratify the treaty.

But no one yesterday showed any sign that they understood the way treaty signature operates. Take Chief Justice Roberts opening inquiry to Solicitor General Verrilli (see transcript p. 27):

General, let’s suppose there’s a multilateral treaty, the — the international convention to ensure that national legislatures have full authority to carry out their obligations, i.e., that the national legislature has the police power.  And Congress passes a statute saying we have the authority to prosecute local crimes pursuant to this international convention that the President has signed.  Any problem with that?  (emphasis added)

Well, yes.  If the President had merely signed the treaty and not actually ratified it, the treaty power would not afford any basis for Congress’ legislation and this would be a straight-forward Article I case.  Indeed, it would be like Congress deciding to pass legislation implementing the Kyoto Protocol or the Rome Statute to the International Criminal Court — two treaties a U.S. President has signed — without any further approval by the Senate, let alone ratification by the President (a ratification which, I’d note, the President is not required to do even if the Senate gives its advice and consent to ratification).

Of course, the Chief Justice probably meant a treaty that the President had “ratified” — and Verrilli certainly took the question that way.  But I’m worried that both were a bit oblivious to the distinction. I can only imagine what people would say if a Supreme Court Justice has posed a hypo that confused a bill with a statute during an oral argument.  And if that’s not OK, why is it OK to make such a simple mistake about treaty-making?

Now, if this were an isolated incident, I’d be willing to write it off as simply a shorthand-error that both sides ducked around to get at the real — and certainly important — issues at the heart of the Bond case.  But, this wasn’t the only misuse of treaty signature yesterday. More details, after the jump . . .

Seven Observations About the Oral Argument in Bond

by Marty Lederman

[Marty Lederman is an Associate Professor at Georgetown Law School and former Deputy Assistant Attorney General in the Department of Justice's Office of Legal Counsel from 2009 to 2010, and an Attorney Advisor in OLC from 1994-2002. Lederman and  law professors David Golove and John Mikhail filed an amicus brief in Bond.]


Some preliminary reactions that occurred to me as I was listening to the argument in Bond v. United States this morning (transcript available here):


1.  A Limiting Construction of the Treaty?

The most significant thing about the argument, perhaps—at least in terms of forecasting what the Court might do—is that Justices Kennedy and Breyer both indicated interest in whether the treaty might be construed so as not to cover some category of malicious uses of toxic chemicals that the international community would not have any obvious interest in regulating.  Bond’s lawyer, Paul Clement, had suggested in his brief that the Court might construe the “peaceful purpose” exception in the treaty to exempt any non-“warlike” use of chemicals.  The Solicitor General has explained why that particular construction is untenable (see pages 13-16 of his brief); and Paul appeared to concede as much this morning when he agreed that if Ms. Bond had sent sarin gas through the ducts of her victim’s house, that would not be a “peaceful” purpose, even though it would be purely local, and presumably not “warlike.”

Justices Kennedy and Breyer, therefore, were searching for another way to narrowly construe the treaty.  Justice Kennedy mentioned the possibility of imposing some sort of “clear statement” rule of construction with respect to applications of the treaty that would implicate a nation’s constitutional structure.  Justice Breyer, for his part, appeared to be pondering whether the Court could construe the “use” prohibition differently depending on the nature of the toxic chemicals in question—a sort of “two-tiered” construction:  On the one hand (if I understood him correctly), the prohibition on use would be categorical as to those especially dangerous chemicals (including sarin) listed in one or more of the three “Schedules” in the Annex to the Convention.  But at the same time the Court might read the Convention as excluding from coverage certain relatively less dangerous (because more confined) uses of all other toxic chemicals not specifically listed—uses that could not possibly, in the Justices’s view, raise any international hackles if left unaddressed.  The hypothetical cases Justice Breyer had in mind were, e.g., using kerosene to burn down a barn; feeding a horse a poison potato; using a match to set fire to a haystack . . . and perhaps Bond’s own case itself.  (Justice Breyer took his examples from Commonwealth v. Peaslee, 177 Mass. 267 (1901), a decision that Oliver Wendell Holmes issued on New Year’s Day, 1901, as Chief Justice of the Massachusetts Supreme Judicial Court.  Justice Breyer called it a “great case on attempted murder.”  Perhaps it is—the question was when extensive preparation followed by abandonment constitutes an attempt.  Not surprisingly, Peaslee doesn’t have anything to do with Congress, the treaty power or chemical weapons—which might have been Justice Breyer’s point, i.e., that cases such as Bond’s are the stuff of textbook state criminal law.)

There are at least two obvious difficulties in going down this road:  For one, it’s not easy to construe the language of the treaty to carve out such localized uses of certain chemicals but not others—and even more difficult, perhaps, to define in the language of a judicial opinion the category of cases that are too local, or too self-contained, to be of the sort that the treaty-makers presumably were most concerned.  Secondly, as the Solicitor General explained, the international community presumably settled upon a categorical prohibition (the CWC Preamble declares that the State Parties are “[d]etermined for the sake of all mankind, to exclude completely the possibility of the use of chemical weapons”) not because each and every hypothetical covered case would raise serious international concerns, but instead because a prophylactic, comprehensive ban is conducive to ensuring that all of the cases of possible international concern are covered.  The objective, in a nutshell, is to prevent various nations from deciding for themselves which uses of toxic chemicals are, or are not, worthy of international condemnation:  If, for example, the United States were to define a category of cases that are, in the Court’s view, peripheral to the primary objectives of the treaty-makers, what would prevent another nation, such as Syria, from likewise construing the Convention to exclude a different category of toxic chemical use that are, in its view, not of legitimate or significant international concern?

On the other hand, it would not be the first time the Court has narrowly interpreted treaty language to avoid interference in matters falling within the traditional police power jurisdiction of the states.  See, e.g., Yamataya v. Fisher, 189 U.S. 86, 97 (1903); Compagnie Francaise de Navigation a Vapeur v. Louisiana Board of Health, 186 U.S. 380, 393-95 (1902); Edward S. Corwin, National Supremacy: Treaty Power vs. State Power at 304-06 (1913).  And so, if Justices Breyer, Kennedy and/or other Justices can find their way to a construction of the CWC that would not cover Bond’s use of the particular chemicals at issue, the Court would then be able to avoid the need to decide whether to impose limits on the scope of the treaty power or on Congress’s authority to enact legislation to ensure the Nation’s compliance with its international obligations—limits that could seriously compromise U.S. foreign policy interests and that therefore were decisively rejected at the Founding and have been rejected ever since.


2.  “As-Applied” Commerce Clause Affirmance?

In my post yesterday, I suggested that another way for the Court to avoid reaching any significant constitutional question would be to… (Continue Reading)

A Quick Reaction to Oral Argument in Bond v. U.S.: Missouri v. Holland is in Real Trouble

by Julian Ku

Lyle Denniston is first out of the gate with his take on the oral argument in the much-anticipated U.S. Supreme Court decision in U.S. v. Bond.  His general take:

The argument in Bond v. U.S. (docket 12-158) reached the grand constitutional scale that has been its potential all along.   At the end of an hour-long hearing, it appeared that the government might just have to hope that it loses the case on narrow grounds, because it might lose it in a sweeping way.  Some of the Justices openly canvassed ways to cut back, perhaps sharply, on the national government’s power to negotiate or to implement global treaties — the very thing that U.S. Solicitor General Donald B. Verrilli, Jr., was trying so hard to head off.

For my own part, I was also struck by how none of the justices seemed impressed with the U.S. Solicitor General’s pleas for deference to the Executive Branch in the interpretation and administration of the Chemical Weapons Convention.  Several justices seemed to almost scoff at this argument at times, noting that it was not emphasized in the briefs.  The one exception, a reference to the brief filed by John Bellinger and former U.S. State Department Legal Advisors, was brushed aside fairly easily at argument.

So I think the case will turn out to be a straight-up domestic American federalism debate, with few foreign affairs concerns implicated in either the majority or the dissent.  If I’m right about this, then there seems little reason to doubt that we are headed toward a 5-4 decision in favor of the petitioner. The frequent use of the phrase “police power” is a bad sign for the government, since that is the one thing the Court doesn’t want to acknowledge giving to the federal government.  Moreover, the facts of this case, involving the federal prosecution of what is very close to a plain vanilla domestic dispute, should be enough to tie together a pro-federalism majority on the court.

Indeed, I think the unusual Nick Rosencranz inspired argument which separates the constitutionality of the treaty-implementation power from the treaty power  actually makes the federalism argument easier to swallow.  The pro-federalism justices can simply hold that constitutional limits the domestic implementation power does not necessarily limit the treaty power itself.   The President should not feel constrained to enter into treaties since this ruling does not reach the treaty power. Justice Scalia repeatedly embraced this argument, and even conceded that there are no similar limitations on a self-executing treaty.    It is a bit of an odd argument, since it does imply that a self-executing treaty could accomplish here what the statute could not, but that case would at least be left for another day.

I am also struck that there was not much fealty to Justice Holmes’ opinion in Missouri v. Holland. The US government did not rely on the authority of that decision very much, and Bond’s counsel came up with a way to distinguish it that no justice bothered to challenge.  So fealty to precedent does not appear to be much on their minds either.

Without national security or precedent, the Government’s argument is much weaker, and I agree with Denniston that its best outcome is a very narrow construction of the statute (which Justice Breyer seemed to be leaning toward with his emphasis on the statute’s exception for a “peaceful purpose” and which he repeatedly urged the US government to do as well). I think one could get 8 votes for a narrow construction of the relevant statute.  But I think there is appetite on the Court to go farther. Will they?

U.S. Treaty Practice Does Not Have to Be a Zero-Sum Game!

by Duncan Hollis

November 5, 2013 is U.S. National Treaty Day.  Well, not really, but it might as well be given how much treaties are going to be in the news tomorrow.  For starters, the United States Supreme Court hears oral argument in the case of Bond v. United States (for the pleadings, see SCOTUS blog’s as-always-excellent round-up).  As we’ve blogged previously (a lot), the case challenges the scope of the U.S. treaty power as the basis for implementing legislation in areas where Congress otherwise could not legislate.  In this case, there’s some salacious facts leading to a rather unlikely prosecution under the implementing legislation for the Chemical Weapons Convention (let’s just say the case is a far cry from the scenario that won the OPCW this year’s Nobel Peace Prize).  In the process, Bond questions the continued precedential value of one of the most discussed (and read) cases in U.S. foreign relations law — Justice Oliver Wendell Holmes’ opinion in Missouri v. Holland.

Then, in the afternoon, the U.S. Senate Foreign Relations Committee takes up the UN Disabilities Convention . . .  again (here’s the line-up for those testifying).  The Convention got a lot of attention the last time it reached the Senate floor, with Senate Republicans voting it down despite the poignant appearance of former Senate Majority Leader Robert Dole, who came to support advice and consent to the treaty. U.S. Senators John McCain and Robert Menendez have an op-ed in USA Today taking their case for Senate advice and consent to the general public.

Of course, the Chemical Weapons Convention and the Disabilities Convention are not the only two treaties to have garnered media attention in recent weeks.  U.S. Secretary of State Kerry’s signature of the U.N. Arms Trade Treaty promoted a rather furious domestic back-lash about whether the United States should join that treaty (At present, it sure looks like there’s easily enough Senate votes to oppose it).  And, that’s not to mention the 1982 U.N. Convention on the Law of the Sea (UNCLOS).  It continues to be supported by a large majority of business and national security interests but remains stymied by Senate opposition from a very vocal minority who fear the loss of “sovereignty” that would come with U.S. consent.

I could easily write one (or more posts) on each of these treaty issues.  For now, though, I want to call attention to a common theme that runs through all the on-going debates.  In each case, the treaty fight ends up being framed as a fight between those who would situate U.S. treaties (and with them, U.S. law) within a larger community — international communitarians if you will — versus those I’d call autonomists — who seek autonomy from any international regulation whether in defense of national law, states’ rights, or individual liberties.  Thus, opponents to UNCLOS want the U.S. to be able to regulate its own maritime environment just as those who oppose the Disabilities Convention oppose its potential to go beyond the Americans with Disabilities Act.  Of course, the Disabilities Convention also raises the specter of further intrusions into U.S. state regulations akin to the fears of internationally-based prosecutions that lie at the heart of the Bond case.  And all of this is not to mention the NRA and their (rather unrealistic) charges that the Arms Trade Treaty would require the United States to violate the Second Amendment and the constitutional liberties individuals enjoy to bear arms.

This division between communitarians and autonomists helps explain how treaty debates are now almost always framed in all-or-nothing terms. The decisions on whether to join or enforce U.S. treaty commitments become zero-sum games; only one side can win and the other must lose. That narrative certainly makes for good media stories.  But, I wonder if playing the game this way is truly in the nation’s interests.  It seems we end up with some examples where communitarians can claim complete victory (see, e.g., the new START treaty or the gold standard of an international engagement — the Montreal Protocol) while autonomists have equally compelling winning claims on their side (see, e.g., Medellin). Citing such divergent results, however, only seems to inflame the passions of the “losing” side and risk entrenching no-compromise strategies that seem a recipe for disaster (see, e.g., this October in Washington).

So as the Chemical Weapons Convention and the Disabilities Convention take center stage, I’d like to flag a simple point: U.S. treaty-making and implementation is a much more flexible and nuanced practice than the existing debates suggest.  There are not just some, but many, potential outcomes in these cases that would not require the definitive death of the treaty power OR states’ rights.  Indeed, as Peter’s most recent post suggests and as I’ve written previously, looking at the history of U.S. treaty-making post Missouri v. Holland, it’s pretty clear that the United States regularly accommodates state interests/rights in entering and implementing U.S. treaty commitments.  Thus, a win for the United States in Bond is unlikely to mean states rights get overridden by all future treaty-making.  Similarly, there are ways for Ms. Bond to win this case (think, creative statutory interpretation) that don’t necessarily mean we all get to stop reading Holmes’ opinion.  One could make a similar point about the Disabilities Convention.  The Senate doesn’t have to give unconditional advice and consent — it has a long history of RUDs (reservations, understandings, and declarations) that might be used to mitigate the scope of U.S. commitments to that treaty regime.  Even federalism interests writ large can be protected (see, e.g., the RUDs included in U.S. ratification of the Organized Crime Convention or the UN Corruption Convention).

Now, there will be those who say RUDs are inadmissible and run counter to the object and purpose of one or more of these treaties, just as there will be those who say joining any treaty will lead to some impermissible sacrifice of U.S. “sovereignty.”  My point (hope) is that Senators (and Supreme Court Justices) don’t have to always accept these cases as they are characterized at the poles. There are plenty of precedents that may be brought to bear balancing competing interests such as federalism and international engagements at the same time.  We’ll see if any such hybrid results appear possible in the coming days.  I’d hope so, but given current trends in American politics, I’m not sure I’d bet on it.

Is David Miranda a Terrorist? Legally, It’s Close — Which Is Precisely the Problem

by Kevin Jon Heller

In my previous post, I mocked Scotland Yard’s assertion that David Miranda, Glenn Greenwald’s partner, committed an act of terrorism by transporting documents stolen from the US government by Edward Snowden. Mockery remains the appropriate response, given the vast chasm that separates Miranda’s actions from any defensible conception of terrorism — such as the one I quoted from UN General Assembly Resolution 49/60, “[c]riminal acts intended or calculated to provoke a state of terror in the general public, a group of persons, or particular persons for political purposes.” Yet it is important to avoid focusing solely on Scotland Yard’s abuse of its power, because the real problem lies not with those who apply the law — whose good faith we should never assume — but with the law itself. Simply put, the UK’s Terrorism Act 2000 is so overbroad that, in fact, Miranda’s actions come perilously close to qualifying as terrorism under it. Here is the Act’s definition of terrorism:

1.—(1) In this Act “terrorism” means the use or threat of action
(a) the action falls within subsection (2),
(b) the use or threat is designed to influence the government or to
intimidate the public or a section of the public, and
(c) the use or threat is made for the purpose of advancing a political,
religious or ideological cause.

(2) Action falls within this subsection if it—
(a) involves serious violence against a person,
(b) involves serious damage to property,
(c) endangers a person’s life, other than that of the person
committing the action,
(d) creates a serious risk to the health or safety of the public or a
section of the public, or
(e) is designed seriously to interfere with or seriously to disrupt an
electronic system.

Let’s examine each of these elements. First, is transporting Snowden documents “to influence the government or to intimidate the public or a section of the public”? Not to intimidate, surely. But transporting the documents is designed to facilitate their release, and the release of the documents is indeed “designed to influence the government” — namely, to convince Britain to abandon its mass surveillance of its citizens and the citizens of other European countries. That is a noble design, but it is a design nonetheless. And the Terrorism Act 2000 does not limit terrorism to acts that seek to influence the government to adopt bad policies. That’s one of its problems.

Second, is transporting Snowden documents done “for the purpose of advancing a political,
religious or ideological cause”? Yes, of course it is — releasing the documents is designed to promote greater transparency in government and to minimize unwarranted interference with people’s privacy. That is a noble political or ideological cause, but it is still a political or ideological cause. And once again, nothing in the Act says that actions in the service of a noble political or ideological cause cannot qualify as terrorism. That’s another problem.

Third, and finally, does transporting Snowden documents “fall within subsection (2)”? It clearly does not involve “serious violence against a person” or “serious damage to property.” But the other three categories of harm are a much closer call. I do not believe that releasing the Snowden documents endangers a person’s life, creates a serious risk to the safety of the public, or is designed to seriously disrupt an electronic system. But it is very easy to imagine an overzealous prosecutor arguing that their release would do any or all of those things — particularly the final one, because the surveillance abuses revealed by the documents are all the product of electronic systems. And given that UK courts have not exactly covered themselves with glory in the terrorism context, it is also all too easy to imagine a court buying that overzealous prosecutor’s argument.

That’s it. That’s all the Terrorism Act 2000 requires. It does not require a violent act. It does not require the intent to cause terror. It does not exclude peaceful acts designed to promote progressive policy change. It does not exclude pacifist or humanist causes. It simply requires the accused commit an act that is designed to influence the government for political or ideological reasons and that directly or indirectly endangers a person, the public, or a computer system.

To be clear: I do not think that David Miranda’s actions qualify as terrorism — even under the woefully overbroad Terrorism Act 2000. In particular, I think the mere act of transporting documents is too causally removed from endangering a person, the public, or a computer system to satisfy subsection (2) of the Act. But Miranda’s actions are far too close for comfort, given the Act’s definition of terrorism — and the actions of a person who actually releases Snowden documents, such as my friend Glenn Greenwald himself, are closer still. Indeed, I find it all too easy to imagine Glenn or one of his former colleagues at the Guardian being successfully prosecuted for terrorism under the Act.

And that, ultimately, is my point. It is a serious problem that Scotland Yard believes Miranda is a terrorist. But the more significant problem is that, viewed solely in terms of the law, its position is anything but absurd. Under the indefensible Terrorism Act 2000, many actions qualify as terrorism that are not, in fact, even remotely terrorist. Perhaps even Miranda’s.

Chevron and the Rise of Arbitral Power: A Response

by Michael D. Goldhaber

[Michael D. Goldhaber serves as Senior International Correspondent and "The Global Lawyer" columnist for The American Lawyer and the ALM media group. His writes widely on human rights and corporate accountability, international arbitration, and global multiforum disputes. His e-book on Chevron will be published next year by Amazon. His first post can be found here.]

I’m grateful for the very gracious and insightful comments shared by the eminent arbitrator Christoph Schreuer, the scourge of eminent arbitrators Muthucumaraswamy Sornarjah, and the wunderkind of arbitration scholarship, Anthea Roberts. Having solicited a wide range of commentary on my Article, I now must defend myself from friendly jabs on both flanks.

Dr. Schreuer and Professor Roberts both argue thoughtfully that the relationship between tribunals and courts should be understood in a broader context. Along the way, Dr. Schreuer questions my realist view that arbitrators effectively review judges. In the course of a bracing systemic critique, Professor Sornarajah calls my desire for proportionality analysis and a plenary appeal within arbitration naive.

I stand by my position that arbitrators are increasingly at odds with judges, and that they functioned like reviewing judges in several of the final awards surveyed (although I perhaps could have been more attentive to terminology). Dr. Schreuer helpfully distinguishes between vacating a decision (in an annulment) and replacing it (in an appeal), and argues that arbitrators do neither. But consider the results. When the treaty tribunal in Saipem v Bangladesh reinstated a contract arbitration award that had been nullified by a national court, it effectively vacated the court decision, and replaced it with a decision confirming the commercial arbitration. In White v. India, the tribunal stripped the national courts of jurisdiction because they were too slow, and effectively stepped in to confirm a commercial arbitration award. In Chevron v. Ecuador I, the tribunal stripped the courts of jurisdiction for being too slow, and expressly decided the court cases de novo under Ecuadorian law. Surely these results were functionally equivalent to appellate review. Likewise, when ATA v. Jordan finally terminated an ongoing court proceeding, it emphatically resolved the case in ATA’s favor. I’m not sure how such a remedy should be categorized, but I cannot agree with Dr. Schreuer that it’s “much weaker” than appellate review.

I readily agree with Schreuer and Roberts on their main point: that judges and arbitrators interact in multifarious ways. My Article’s opening passage acknowledged as much, and explained that I would dwell on arbitral review because it is the most neglected facet of their relationship

Professor Roberts astutely observes that the relationship between tribunals and courts is triangular — in the sense that arbitrators tend to review judges from poor nations, but to be reviewed by judges from rich nations. What she leaves unsaid is that judges in rich nations have historically deferred to arbitrators (whether out of ideology, correct interpretation of the law, or sensitivity to cross-border competition among the arbitration elites). I would therefore predict that the U.S. Supreme Court will overturn the D.C. Circuit’s encroachment on arbitrators’ turf in BG v. Argentina. If not, arbitration will simply flow away from UNCITRAL tribunals sited in the U.S., toward tribunals that are governed by either ICSID or the laws of arbitration-friendly European states. But either way, if they wish to sustain their power, arbitrators should take the hint: At least some courts in rich nations are deferring less because they perceive arbitrators as overweening. A lack of internal review may lead to external review.

Although Professor Sornarajah and I share many perceptions — for instance the need for transparency –, he views me as any self-respecting revolutionary views a reformer. He cannot understand why I would wish to fix an edifice with rotten foundations, rather than to blow it up. (more…)

Chevron and the Rise of Arbitral Power: A Comment by Muthucumaraswamy Sornarajah

by Muthucumaraswamy Sornarajah

[Muthucumaraswamy Sornarajah is the CJ Koh Professor of Law, National University of Singapore and a Visiting Professor, Centre for the Study of Human Rights, London School of Economics.]

Michael Goldhaber’s well-argued piece on the extent of the powers that investment arbitration tribunals are arrogating to themselves is evidence of a general malaise that afflicts investment arbitration. The arbitrators have assumed powers far in excess of what states intended them to have when they made investment treaties and created a unilateral power in the investor to arbitrate disputes. Consistent with prevailing ideas generated by the Washington Consensus and its desire to bring about standards of global governance, arbitrators promoting their own self-interest went on a rampage of expansionist interpretation of treaties. Goldhaber highlights one of the most glaring instances of this neoliberal expansionism, the making of interim orders restraining a respondent state from enforcing judgments of their domestic courts made in cases involving third parties.

This phenomenon is but an aspect of a project to build up a neoliberal regime of inflexible investment protection. In the aspect of this project that Goldhaber describes, there has been an assiduous effort made by leading members of the “college of international lawyers”, entrusted the task of being bulwarks against injustice, promoting sectional interests of investors to the detriment of other values such as the protection of human rights and the environment.

The downsizing of the notion of denial of justice so that it could accommodate lesser standards enabling easy review of domestic judicial orders is a definite project that arbitrators and “highly qualified publicists” embarked upon. Arbitrators, whose legal competence is not tested or uniform, embarked on a course of review of domestic decisions. Golhaber describes these processes with competence. As he points out, while purporting not to act as appellate courts, this is precisely what the tribunals were doing. (more…)

Chevron and the Rise of Arbitral Power: A Comment by Anthea Roberts–Arbitral Power Over Domestic Courts or Arbitral Power Dependent on Domestic Courts?

by Anthea Roberts

[Anthea Roberts holds a joint appointment as a Professor of Law at Columbia Law School and a Senior Lecturer in Law at the London School of Economics and will be in residence at Columbia Law School from 2013-2015.]

Michael Goldhaber has written an interesting and timely article charting the rise of international arbitrators exercising power over and with respect to domestic courts. He gives examples ranging from Chevron to Saipem to White Industries. This is an important and growing phenomenon that has not yet received adequate attention. I believe that the rise of arbitral power over domestic courts that Goldhaber describes is the first stage in what will ultimately become a longer and more contested saga about the respective powers of arbitral tribunals and domestic courts. That is because arbitral tribunals not only exercise power over domestic courts, but their own power is also dependent on domestic courts.

The power of arbitral tribunals ultimately comes down to whether their decisions will be enforced by domestic courts. While Goldhaber charts the first stage in the battle between arbitral tribunals and domestic courts where arbitrators are in the position of authority, we are likely to witness a second stage when domestic courts are asked to pass judgment on whether arbitral tribunals have exceeded their jurisdiction or violated public policy by hearing these sorts of cases or ordering certain relief. Arbitral tribunals will sit in judgment of domestic courts and domestic courts will sit in judgment of arbitral tribunals. Neither reigns supreme.

BG Group v Argentina represents an early example of this type of phenomenon. The tribunal in that case chose not to enforce the requirement in the treaty that the investor resort to the domestic courts for 18 months prior to bringing an arbitral claim. Many other tribunals adopted the same approach, often painting the issue as one of admissibility rather than jurisdiction or viewing domestic remedies as futile rendering resort to them unnecessary. But when the Court of Appeals for the District Court of Columbia was asked to enforce the resulting award, it refused to do so on the basis that the tribunal had exceeded its jurisdiction because Argentina had only consented to arbitration on certain conditions, one of which was not met.