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International Organizations Event Upcoming in NYC

by Kristen Boon

A terrific event is coming up in NYC Friday,  March 10, 2017, 6:00 p.m. – 9:00 p.m. at the New York City Bar.   Ian Johnstone, Jacob Katz Cogan, Thomas G. Weiss,  and Anjali Dayal will discuss the Future of International Organizations.  The Moderator will be Mona Khalil of Independent Diplomat.
The speakers are editors and contributors to the Oxford Handbook of International Organizations.
This is the topic of the evening: “Virtually every important question of public policy today involves an international organization. From security to trade to intellectual property to health policy and beyond, governments interact with international organizations in almost everything they do. Yet after decades of progressive institutionalization, the tide seems to be turning. In Africa, states are withdrawing from the International Criminal Court.  In Europe, an “ever closer Union” seems a distant ideal. And the new leadership in the United States has signaled deep scepticism about the value of all international
organizations. Is this the beginning of the end of international organization? What role will international institutions play in the changing geopolitical landscape of the 21st century?”
You can register here if you are interested in attending.

The Status of Treaties in Domestic Law

by David Stewart

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

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

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

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

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

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

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

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

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

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

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

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

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

Bringing Human Rights Home: Reflections on the Treaty Supremacy Rule

by Carmen Gonzalez

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

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

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

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

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

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

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

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

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

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

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

by David Sloss

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

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

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

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

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

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

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

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

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

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

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

by Jessica Dorsey

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

A short description:

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

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

The Soft Bigotry of Low Expectations

by Kevin Jon Heller

Oh, Fox News, how I love thee:

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PS: In case you’re wondering, yes, it’s real.

Will International Law Matter to the Trump Administration?

by Julian Ku

There are lots of panels and conferences being held around the U.S. (and maybe outside the U.S.) on the new Trump Administration’s policies and their impact on international law. I would like to recommend our readers view some or all of the video from this half-day conference recently hosted in Washington D.C. by the Federalist Society and the American Branch of the International Law Association.  Entitled “International Law in the Trump Era: Expectations, Hopes, and Fears,” the conference has lots of interesting scholars and former U.S. government officials participating.  All of the panels look great, but it is hard to avoid highlighting the panel discussion below with friend of blog John Bellinger and Georgetown lawprof Rosa Brooks tackling the question everyone is asking:

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

by Benjamin Nussberger

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

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

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

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

A “non-prohibitive non-authorization”

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

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

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

Intervention by invitation

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

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

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

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

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

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

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

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

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

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

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

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

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

by Julian Ku

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

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

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

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

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

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

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

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

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

Panel on Travel Ban & Immigration Orders

by Kristen Boon

Seton Hall Law School (where I am a professor) organized an excellent panel on the travel ban and immigration restrictions last Thursday, Feb 2.    For those who wish to learn more about the legal effects of the executive order, I encourage you to watch it here.

You will see presentations by Professors Lori Nessel, Ed Hartnett and Jonathan Hafetz discussing the immigration orders, their constitutionality, and possible challenges to those orders.  The panel was moderated by Professor Jenny-Brooke Condon.

This is a fast moving issue – please note this panel predated multiple developments and decisions by judges in several jurisdictions over the weekend, which considered the constitutionality of the travel ban.

To stay current, you can access all briefs and decisions at this link, which has been setup by the Civil Rights Litigation Clearinghouse at the University of Michigan Law School.

Dear Mr President: 40% of Zero is Zero

by Kevin Jon Heller

Kill me:

Funding will be taken away from any organisation that is “controlled or substantially influenced by any state that sponsors terrorism” or is behind the persecution of marginalised groups or systematic violation of human rights.

The order has singled out peacekeeping, the International Criminal Court and the United Nations Population Fund. The UNPFA targets violence against women, fights to keeps childbirth and abortion, where it is legal, safe, and was a key presence in safeguarding women in Haiti following Hurricane Matthew.

The order demands decreasing US funding towards international organisations by at least 40 per cent. Mr Trump has included the International Criminal Court here, yet the US currently pays nothing to the ICC.

When asked why he wants to reduce funding to an organisation the US doesn’t fund, President Trump reportedly responded, “the Prosecutor, Frederick Douglass, is a rabble-rouser.”

Event: Australia, Refugees, and International Criminal Law (February 13)

by Kevin Jon Heller

I want to call readers’ attention to what should be — despite my participation — a fantastic event at City Law School the week after next. Here is the info:

City, University of London: The Refugee Crisis and International Criminal Law: Are Australian Agents and Corporate Actors Committing Crimes Against Humanity?

City Law School invites you to a panel discussion of international criminal law aspects of the refugee crisis, with a focus on the Australian detention facilities. The discussion will follow the announcement and launch of a new major initiative by the Stanford International Human Rights Clinic and the Global Legal Action Network (GLAN).

Refugees and asylum seekers are currently under attack in many developed countries, including in European states, the US, and Australia. International criminal law has developed around the need for international institutions to intervene on behalf of the most vulnerable populations, when states are unwilling or unable to do so. Can international criminal prosecution help counter the current encroachment upon refugee rights? Currently, the most flagrant examples of such encroachment are Australian practices, which have also served as a model for migration restrictionists around the world. Our focus will be on the treatment of refugees in Nauru and Manus Island by Australian officials and agents, including corporate actors. At issue, however, are not only legal questions. As important are contemporary political conditions, in which the international criminal court is under sustained critique for a seeming bias against African leaders; and in which Western governments and populist movements are proposing new policies that violate refugee rights. Does the concept of Crimes against Humanity accurately capture the conditions of detention and practices of mass deportations? And, if there are international crimes committed, are these grave enough for the International Criminal Court to investigate? Can and should International Criminal Law shift its focus from instances of spectacular or radical evil to the normalised and ‘banal’ violence waged by Western states as a consequence of the structures of global inequality?

Speakers: Ms Diala Shamas, Supervising Attorney and Lecturer, Stanford Law School International Human Rights and Conflict Resolution Clinic; Dr Cathryn Costello, Andrew W. Mellon Associate Professor in International Human Rights and Refugee Law, fellow of St Antony’s College, University of Oxford; Professor Kevin Jon Heller, Professor of Criminal Law, SOAS, University of London; Dr Ioannis KalpouzosLecturer in Law, City Law School, City, University of London; Legal Action Committee, Global Legal Action Network; Dr Itamar Mann, Senior Lecturer in Law, University of Haifa; Legal Action Committee, Global Legal Action Network; Ms Anna Shea, Researcher and Legal Advisor, Refugee and Migrant Rights, Amnesty International.

The event takes place on Monday 13 February 2017 at 18:00 at City, University of London, College Building, St John Street, EC1V 4PB – Room AG21. The event will be followed by a wine reception. Attendance is free. You may sign up here.

Hope to see some OJ readers there!