Bradley Book Symposium: The Reality of International Delegations

When I was just out of law school and desperately seeking advice as to what to write about, I turned to Professor Bradley for ideas.  He recommended that I buy Louis Henkin’s treatise Foreign Affairs and the United States Constitution (a book I had somehow never heard of during my three years of law school).  Amazon.com informs me that I followed Professor Bradley’s advice and bought the book on October 8, 1999.   Thus, thanks to Professor Henkin (and Professor Bradley!), much of my early academic work was inspired by what I learned about in the Henkin treatise.

As Professor Bradley advised me, the Henkin treatise is learned, concise, clear, and comprehensive.  But as much as I respect the treatise, I must admit I have never been happy with the idea of it being the authoritative statement of U.S. foreign relations law.  I found Henkin’s sometimes dismissive treatment of questions of constitutional structure frustrating.  In other words, I always believed that a new foreign affairs law treatise reflecting contemporary debates and understandings was needed.   Well, that treatise has finally arrived in the form of Professor Bradley’s International Law in the U.S. Legal System.

International Law is not an exact blow-by-blow response to the Henkin treatise. Whereas Henkin’s work is organized by analyzing different sections of the Constitution, International Law in the U.S. Legal System takes the different forms of international law as its basic framework and reviews, in turn, how the U.S. legal system treats each of them.

Despite his different focus and organization, Professor Bradley’s fair and thorough treatment of constitutional structure offers much of what I found missing and incomplete in the Henkin treatise.  Unlike Henkin, he takes seriously the idea that federalism could support an enduring and judicially enforceable limitation on the treaty power (see Chapter 2).  Similarly, he examines with care the endlessly complex question of how customary international law is used in U.S. courts, both in the context of the Alien Tort Statute but also in other important areas (Chapters 5, 6, and 7).  On this subject, he unsurprisingly gives full voice to the “revisionist” view that challenged Henkin’s view that customary international law is federal common law for all purposes, even outside the context of the Alien Tort Statute.

Similarly, I am quite pleased (and unsurprised) that Professor Bradley takes seriously the structural constitutional questions raised by the interaction between the U.S. government and international institutions.  This “delegation” problem fascinated me back when I was a newbie scholar and continues to fascinate me today.  Unlike Henkin and other scholars, Professor Bradley does not think delegations are a “myth” nor does he think that there is no serious constitutional question to be discussed.

Rather, Professor Bradley takes readers on the right analytical path, that is, to recognize such delegations as real and to subject such delegations to the same array of structural constitutional principles that limit domestic delegations. Separation of powers principles matter, even in the context of an international delegation, and should be applied in the appropriate cases to limit or at least analyze certain U.S. legal relationships.

So Professor Bradley and I end up in the same place with respect to international delegations.  We think that most (but not all) international delegations can be handled through a robust application of the non-self execution doctrine.  In our recent book Taming Globalization, Professor John Yoo and I go farther and argue that there should be a presumption in favor of treating most contemporary treaties as non-self executing absent explicit language in the treaties to the contrary.  Professor Bradley does not go so far, but in other work he has approvingly described how the non-self execution doctrine can mitigate if not eliminate concerns about international delegations.

The U.S. Supreme Court’s decision in Medellin v. Texas exemplifies this approach.  In that decision, the Supreme Court interpreted a key provision of the U.N. Charter obligating the U.S. to comply with International Court of Justice as non-self executing, thus relieving U.S. courts from any obligation to implement an ICJ’s judgment.   In my view, the relevant language could have been interpreted as either self-executing or non-self-executing, but the structural tensions created by a self-executing interpretation tipped the balance.  The decision of whether and how to comply with an ICJ judgment was rightly left to either the State of Texas or the federal legislature.

The key insight here is that delegations must be accounted for, and that the structural challenges they create must be avoided as much as possible.  Non-self execution is an elegant and practicable method for mediating these structural challenges.

As Professor Bradley acknowledges, however, not all delegation problems can be resolved by resorting to non-self execution.  He rightly highlights the understudied problem of “treaty amendments” as a delegation of the U.S. government’s treaty-making power.   He notes the unusual and remarkable power that the North American Free Trade Agreement grants to arbitral tribunals reviewing U.S. government anti-dumping and countervailing duty determinations.

But having gone this far, Professor Bradley also takes time to shoot down those delegations he does not believe are constitutionally problematic, whether or not they were self-executing.  For example, he concludes that U.S. accession to the International Criminal Court would not create a delegation problem because turning over an individual to the ICC would be the same as turning over an individual to a foreign government via an extradition treaty.  No federal power is being delegated to the ICC.

I am not so sure about this conclusion.   Unlike an extradition, the transfer of an individual to the ICC would only occur after a determination that the U.S. was unwilling or unable to prosecute that person under U.S. laws.  The transfer is not made in order to have the individuals prosecuted under foreign laws.  It is made to give a different legal entity (the ICC) to prosecute someone for the same exact crimes and under the same laws the defendant would have faced in the U.S.  Additionally, it is possible that a U.S. citizen would be prosecuted in the ICC for a crime that would not be punishable under the laws of any other country.  Seen in this light, the ICC is being “delegated” the criminal punishment power of the U.S. since no other country could exercise this power.

The unusual posture of acceding to international criminal jurisdiction, especially over acts that occur in a nation’s otherwise exclusive jurisdiction, is what animated U.S objections to a nineteenth century predecessor of the ICC: international slave trade courts.  As Professor Eugene Kontorovich has documented, the U.S. government raised numerous serious constitutional objections to giving criminal jurisdiction to international slave trade tribunals proposed by Great Britain.  These objections were raised precisely because such tribunals were quite different from extraditions to a foreign judicial system.  Although such troubling delegations might be uncommon in the ICC context, I am not less confident than Professor Bradley that no structural concerns exist.

But my quibble about the ICC does not overshadow my admiration of Professor Bradley’s overall achievement.  In an elegant monograph shorter than many law review articles, he shows us that international law must be reconciled with the enduring and fundamental principles of U.S. constitutional structure. Such reconciliation is usually possible, but it is much harder than most scholars would have recognized in the past.  To put things in another way, I know exactly which book I will be recommending to future, budding legal academics who need a learned, clear, fair, and comprehensive treatise on foreign affairs law.