General

Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties by David Sloss

[ David Sloss, Professor of Law and Director of the Center for Global Law and Policy, Santa Clara University School of Law, describes his recently published article, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties. This article is part of the Third Harvard International Law Journal/Opinio Juris Symposium.] The Supreme Court’s 2008 decision in Medellin v. Texas unleashed a flood of new scholarship on the doctrine of self-executing treaties. Unfortunately, the entire debate has been founded on two erroneous assumptions. First, courts and commentators have assumed that self-execution is a treaty interpretation question. Second, they have assumed that the modern doctrine of self-execution is essentially the same as the doctrine articulated by Chief Justice Marshall in his seminal opinion in Foster v. Neilson. The consensus view is wrong on both counts. Properly framed, the self-execution inquiry comprises two distinct questions. First, what does the treaty obligate the United States to do? This is a question of international law governed by treaty interpretation principles. Second, which government actors within the United States are responsible for domestic treaty implementation? This is a question of domestic law, not international law: treaties almost never answer this question. Even so, courts and commentators routinely analyze domestic implementation issues by examining treaty text and ancillary documents to ascertain the ostensible intent of the treaty makers. In the vast majority of cases, there is nothing in the treaty text, negotiating history, or ratification record that specifies which domestic legal actors have the power or duty to implement the treaty. Undaunted by the lack of relevant information, courts invent a fictitious intent of the treaty makers. Thus, the “intent-based” doctrine of self-execution, commonly called the “Foster doctrine,” promotes the arbitrary exercise of judicial power by encouraging courts to decide cases on the basis of a fictitious intent that the courts themselves create.

Kevin Jon Heller Responds to Professors Darryl Robinson and Carsten Stahn

[This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.] My thanks to Darryl Robinson and Carsten Stahn for their kind words about my Article. They are leading scholars in the area of complementarity, so I appreciate them taking the time to respond. Both have written longer, more formal responses to the Article for the Harvard International Law Journal, which interested readers should check out when they become available. In this post, I will limit myself to responding to their comments for Opinio Juris.

A Response to Kevin Jon Heller by Carsten Stahn

[Carsten Stahn responds to Kevin Jon Heller, A Sentence-Based Theory of Complementarity. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium. Carsten Stahn is Professor of International Criminal Law and Global Justice at Leiden University and Programme Director of the Grotius Centre for International Legal Studies. He is inter alia editor of 'The International Criminal Court and Complementarity: From Theory to Practice', Cambridge University Press, 2011. ] One Step Forward, Two Steps Back? – Second thoughts on a ‘sentence-based’ theory of complementarity I am delighted to comment on Kevin Heller’s thought-provoking essay. I have been following his scholarship for a number of years. It is a great honor to engage with this challenging topic on ‘Opinio Juris’. His scholarship stands out for his obvious originality and critical engagement with policy dilemmas of ICC practice. This piece is no exception. I have no doubt that it will give rise to significant debate and might even divide scholars and practitioners engaged in the complementarity debate. I share certain hesitations regarding the central claim of the article. In my view, the argument that the ICC should focus ‘exclusively on sentencing’ when determining whether ‘ordinary’ crime prosecution is admissible is neither desirable nor manageable in all cases. I will focus on three aspects: The assumptions underlying the central claim, the desirability of a new methodology, and its manageability.

A Comment on Kevin Jon Heller’s Piece by Darryl Robinson

[Darryl Robinson, Assistant Professor, Faculty of Law, Queen's University, responds to Kevin Jon Heller, A Sentence-Based Theory of Complementarity. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.] In Defence of the “Same Conduct” Test for Admissibility Kevin Jon Heller’s article, A Sentence-Based Theory of Complementarity, makes a valuable contribution to the discussion on complementarity (regarding when the ICC should defer to national proceedings over a case). The article has two main features. The first is a convincing critique of approaches to admissibility that would focus on the charges brought at the national level (for example, whether the state charged using international definitions or ‘ordinary’ offences). The second is a proposal to replace such approaches with one focused on the sentence. I examine Kevin’s main arguments in more detail elsewhere (Three Theories of Complementarity). I agree with Kevin’s critiques of approaches to admissibility that focus only on the charges. However, I argue that that an exclusively sentence-based approach also raises some quite serious difficulties, including inter alia that comparing a particular sentence to international ‘averages’ is not sufficiently subtle to evaluate national proceedings. I therefore suggest a third option, a process-based approach. A process-based approach can refer to charges and sentences as indicia, insofar as they shed light on the genuineness of the process. I think that Kevin’s work offers some very important insights about the limited role of charges and the potentially significant role of sentences, which should be incorporated into any theory of complementarity. In this posting, I want to focus on one narrow issue raised in A Sentence-Based Theory and in other recent thoughtful scholarship. Kevin and others have raised important concerns about the “same conduct” test, which is the test employed by ICC chambers to determine if a state is proceeding with the same “case”. Because this question is very current in scholarship and in the blogosphere, it is timely and valuable to examine it here. While I partially agree with the concern, I will try to demonstrate that the problem is actually much narrower than it is widely perceived.

A Sentence-Based Theory of Complementarity by Kevin Jon Heller

[ Kevin Jon Heller, Senior Lecturer, Melbourne Law School, describes his recently published article, A Sentence-Based Theory of Complementarity. This article is part of the Third Harvard International Law Journal/Opinio Juris Symposium.] Article 17 of the Rome Statute prohibits the International Criminal Court (“ICC”) from pre-empting a national prosecution of an act that qualifies as a war crime, crime against humanity,...

A Response to David Landau by Mark Tushnet

[Mark Tushnet, William Nelson Cromwell Professor of Law at Harvard Law School, responds to David Landau, The Reality of Social Rights Enforcement. This post is part of the Third Harvard International Law Journal/Opinio Juris Symposium.] David Landau’s article is an important contribution to a growing literature on the judicial role in enforcing social and economic rights. He joins others in noting that debate has ended over whether constitutions should include such rights and whether, if included, those rights should be judicially enforceable. (As does Landau, I put aside the U.S. case in this comment.) Not “whether,” but “how” is the question now on the table among serious scholars and judges. Landau’s article presents the “how” question in a new light. Drawing together numerous strands in the literature, he helpfully identifies four remedial forms – individual actions primarily seeking individual-level affirmative relief, negative injunctions, weak-form review, and structural injunctions – and assesses their likely effects on the distribution of the material goods that social and economic rights are designed to secure. Proponents of such rights seek them primarily to ensure that the least advantaged in society live in material conditions consistent with basic human dignity. As Landau observes, effective implementation of social and economic rights for the least advantaged faces formidable obstacles. Many of the world’s poorest nations have severely limited internal economic resources. Political obstacles are substantial even when resources are available, or could be made available through tax increases. Those already advantaged typically have a favored position in national politics, allowing them to block redistributive initiatives (whether from the legislature or from the courts). The least advantaged may be quite numerous, but they face resource constraints in mobilizing politically or in litigation. The prospects for achieving substantial improvements in the material conditions of the least advantaged through political or judicial action are inevitably small. One might think that judicial resources should be husbanded for use in the most favorable conditions for enforcing social and economic rights.

The Reality of Social Rights Enforcement by David Landau

[ David Landau, Assistant Professor of Law, Florida State University College of Law, describes his recently published article, The Reality of Social Rights Enforcement. This article is part of the Third Harvard International Law Journal/Opinio Juris Symposium.] Despite the lack of socio-economic rights in the U.S. Constitution and the absence of political will to enforce them, the vast majority of constitutions...

Harvard International Law Journal/Opinio Juris Symposium for Volume 53(1)

The Harvard International Law Journal is pleased to announce its third online symposium with Opinio Juris. The symposium will begin tomorrow, Monday, January 23 and will run until Thursday, January 26. It features the following line-up: On Monday, Mark Tushnet will respond to David Landau‘s article, The Reality of Social Rights Enforcement. ...