Archive of posts for category
International Law in U.S. Courts

Is the New Iranian Nuclear Deal a Secret Treaty?

by Duncan Hollis

Well, it’s not exactly a secret treaty in the sense that yesterday, the news wires were abuzz about the fact that the United States, Iran and five other world powers concluded an agreement to implement Iran’s earlier November deal on its nuclear program.  But, what’s being held back is the actual text of the deal.  There’s not many details (the only story I found on this was here). Still, at this point it’s not clear whether or not yesterday’s implementing agreement is actually a treaty or just another political commitment like the deal last November?  Assuming it is legally binding, it’s also unclear as to why the text is not being released?  Is this just a temporary delay pending a good scrub by treaty lawyers of the final text and any language/translation issues?  Or, is it that some of the implementation agreements’ contents are being treated as classified by one or more of the participants/parties such that they have no intention of ever releasing the text?

Now, as I’ve written in the past, there’s a tendency among students of international relations to assume that secret treaties died with Woodrow Wilson’s fourteen points of light speech and its admonition for “open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind.”  That view was codified, first in Article 18 of the Treaty of Versailles, and later (in a looser form) in Article 102 of the U.N. Charter (requiring Member States to register and allow to be published ”[e]very treaty and every international agreement” they make with the understanding that unregistered treaties may not be invoked before any organ of the United Nations).  But, as far as international law is concerned, reports of the extinction of secret treaties appear exaggerated.  As D.N. Hutchinson noted here back in 1993, Article 102 is most often honored in the breach, and has little relevance today to determining the legal status of an agreement (the ICJ appears to agree given its holdings in the jurisdictional phase of Qatar v. Bahrain).  Thus, I’m not terribly surprised by the idea that the text of the deal may be secret even if its existence is not (particularly given the ‘nuclear’ subject-matter).  Moreover, I don’t think the fact that Iran and these other States concluded it without making the text publicly available will deny it the status of a treaty under international law.

A more important question may be, given the reality of some significant Congressional hostility to the deal, whether keeping its text secret will prove problematic under U.S. law or the domestic law of any of the other State participants?  I can’t speak to the domestic law of other States, but on the U.S. front, I have my doubts. There are obvious questions as to what legal authority the United States has to conclude this implementation agreement (i.e. is it a sole executive agreement, or does the Obama Administration view some existing legislative authority as sufficient to treat it as a congressional-executive agreement?).  Assuming legal authority to conclude an implementation agreement, however, there is statutory authority for it to be done in secret provided the Executive Branch follows the appropriate procedures under the 1972 Case-Zablocki Act:

The Secretary of State shall transmit to the Congress the text of any international agreement (including the text of any oral international agreement, which agreement shall be reduced to writing), other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter. However, any such agreement the immediate public disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States shall not be so transmitted to the Congress but shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives under an appropriate injunction of secrecy to be removed only upon due notice from the President. Any department or agency of the United States Government which enters into any international agreement on behalf of the United States shall transmit to the Department of State the text of such agreement not later than twenty days after such agreement has been signed. (emphasis added)

Simply put, U.S. law accepts and regulates secret treaties and other international agreements. Thus, I don’t think the fact of its secrecy will sway proponents (or opponents) of this deal one way or another.  Even so, I’m curious to know more about the Iranian implementation agreement.  Is it intended to be legally binding or a political commitment?  And, if it’s a treaty, what’s the Executive Branch view as to the legal authority to conclude it short of getting new legislation or going to the Senate under Article II of the Constitution?  I’d welcome comments from readers who know more details here than I do.

Hat Tip:  Orde Kittrie

Why the U.S. State Department Deserves an “F” on their Handling of the Indian Consul Flap

by Julian Ku

It looks like the U.S. and India have worked out a sort-of deal to end the battle over visa-fraud charges brought against India’s deputy consul-general in New York Devyani Khobragade.  Yesterday, a U.S. grand jury indicted Khobragade on the visa-fraud charges, and shortly thereafter, Khobragade was allowed to leave the U.S. for India.  India is now retaliating by demanding the U.S. withdraw a U.S. diplomat from India.

From a purely legal perspective, this is a smart move by the U.S. since even if it had continued with the prosecution, Khobragade would be able to raise a variety of defenses based on her possible status as a diplomat accredited at India’s UN Mission at the time of her arrest, or at least her status at the Mission now.  I think those defenses are decent (though hardly slam-dunk) and, if rejected, would further inflame India as well as create unwelcome precedents for US consuls and diplomats abroad.

Of course, from a diplomatic perspective, it seems clear to me that this prosecution should never have been brought, or at least there should never have been an “arrest” (much less the strip-search).  Why couldn’t the U.S. have indicted her without arresting her, or even just demanded her withdrawal without indicting her?  That is effectively what has happened anyway, except that we also get a crisis in US-India relations like we haven’t had in decades.

I’m putting the blame here almost completely on the U.S. State Department. They (supposedly) had notice that this arrest was going to happen, and they did not take steps to head off a pretty serious diplomatic incident.  Dealing with foreign diplomats is at the heart of what they do.  And they couldn’t have predicted what happened here?  C’mon Secretary Kerry, hold someone responsible!

I’ve just finished my grades from last semester (yes I know, I’m late!).  But I have no problem giving the U.S. State Department an “F” here.

Exploring International Law with Opinio Juris in 2013: Highways, Back Roads, and Uncharted Territories…

by Chris Borgen

There’s never a boring year in international law and 2013 turned out to be particularly eventful: Syria, major cases in front of national and international courts, a possible nuclear deal with Iran, and turmoil in Eastern Europe, Egypt, and South Sudan, to name but a few reasons.

This post is not an attempt to log all that we have written about on Opinio Juris this year. There’s just too much.  If any of these topics (or others) are of particular interest to you, you can use our search function to find the posts related to them.  Rather, this post is an idiosyncratic tour of some of the highways, back roads, and other territory that we traversed in 2013… (Continue Reading)

Daphne Eviatar on the Military Commission Train Wreck

by Kevin Jon Heller

Train wreck, fiasco, disaster, dumpster fire, bad joke, kangaroo court, show trial — take your pick, the description applies. Eviatar’s post at Just Security a while back is a must-read; here is but one particularly disturbing snippet:

Recent pre-trial hearings have revealed, for example, that the Guantanamo courtroom was equipped with microphones able to eavesdrop on privileged attorney-client communications; that the CIA was secretly monitoring the hearings and, unbeknownst to the judge, had the ability to censor the audio feed heard by observers; and that the meeting rooms where defense lawyers met their clients had been secretly wired with video and audio monitors, hidden in devices made to look like smoke detectors. In addition, all legal mail is screened by government security personnel, and documents previously deemed acceptable were later confiscated from the defendants’ prison cells without explanation; those documents included a detainee’s own hand-written notes or a photograph of the grand mosque in Mecca.

Seventy years ago, the United States bent over backwards to provide high-ranking Nazis with fair trials. These days, a fair trial for someone as unimportant as bin Laden’s driver is nothing but a dream. How far the mighty have fallen.

“Love is Greater than Treaties”

by Duncan Hollis

That’s the punchline of a podcast Radiolab just released this week, provocatively titled “Sex, Ducks and The Founding Feud”.  Along with John Bellinger, Joseph Ellis and Nick Rosenkranz, I was interviewed for the story by Jad Abumrad and Kelsey Padgett.  It was a fun experience overall trying to explain to a general audience the importance of the US treaty power and how it plays out in the Bond case, and Missouri v Holland before that. On the whole, I enjoyed hearing some fabulous sound editing (which is not surprising given Jad’s previous work won him a McArthur Genius award). Entertaining as it is though, I also found the piece quite thoughtful in framing the importance of the treaty power and offering both sides of the arguments, even if one might quibble over a few details here and there (eg the constitutionality of the implementing legislation versus that of the treaty).

Interested readers can take a listen here.

 

 

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?