In association with the International Commission of Jurists

Symposia

13 Mar

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. He is the co-editor (with David L. Sloss and Michael D. Ramsey) of International Law in the U.S. Supreme Court: Continuity and Change (2011).] One of the many virtues of Professor Curtis Bradley’s new book International Law in the U.S. Legal System is that it presents both sides of the arguments. That is certainly true of the chapters addressing customary international law. For example, Curt and I have differed in the past over whether customary international law is part of the “Laws of the United States” under Article III of the Constitution, so that Congress may, if it wishes, grant the federal courts subject matter jurisdiction over suits arising under customary international law. But he points readers to my argument that customary international law does fall within Article III, while of course giving his own view that it does not (pp. 141-42, 199-200). Sometimes, however, a subtle slant can sneak into the way an issue is framed. In Chapter 5, Curt tells the by now familiar story that customary international law was understood at the framing to be part of general common law (pp. 142-46), that the Supreme Court’s 1938 decision in Erie Railroad v. Tompkins destabilized the situation by ending the general common law regime (pp. 146-47), and that Sabbatino, Filartiga, and the Restatement (Third) of Foreign Relations Law supported the possibility of customary international law as federal common law (pp. 147-52), before laying out his challenges to “the federal common law claim” (p. 155). He points out that if customary international law were federal common law for Article III purposes (as Filartiga held), then it might also preempt inconsistent state law under the Supremacy Clause of Article VI and bind the President under the Take Care Clause in Article II (pp. 152-54). “It is not clear,” he writes, “what federal law source exists for the wholesale incorporation of CIL into federal common law” (p. 156).
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12 Mar

[Kristina Daugirdas is Assistant Professor of Law at Michigan Law] I'm delighted to have the opportunity to comment on Professor Curt Bradley's excellent new book. Before getting to the question of how the decisions and orders of international institutions are integrated into U.S. law—Professor Bradley's main focus in this chapter—it's worth pausing to consider why states bother to create international institutions at all. States could have drafted a series of treaties that simply codified substantive obligations relating to various issue areas. Instead, they created institutions and delegated authority to them to do things like monitor how diligently states are implementing their international obligations, resolve disputes about the scope of those obligations, and revise those obligations in response to new technological developments or growing scientific knowledge. These delegations can make the regimes more effective by spurring compliance and ensuring that states' international obligations remain current. It's exactly the features that make international institutions so useful that raise constitutional questions for the United States. For example, the Chemical Weapons Convention (CWC) establishes a Technical Secretariat whose tasks include monitoring states' compliance with their obligations. This inspection regime makes the CWC more effective by increasing the likelihood that noncompliance will be exposed. But some scholars have argued that these provisions are incompatible with the Appointments Clause (because the inspections are undertaken by international officials) as well as the Fourth Amendment's protections against unreasonable searches and seizures.
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12 Mar

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.
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11 Mar

In February of 1793, President Washington’s cabinet debated the negotiating instructions for a forthcoming treaty with Indian tribes in the Ohio region.  One issue was whether they could authorize the cessation of land back to the Indian tribes.  Thomas Jefferson took the view that this lay outside of the delegated powers of the federal government.  Alexander Hamilton responded “that the power of treaty was given to [the President and the Senate] by the constitution, without restraining it to particular objects, consequently that it was given in as plenipotentiary a form as held by any sovereign in any other society.”  After the other two cabinet members expressed views more in line with Hamilton than Jefferson, Washington urged them all to reach a consensus.  “He seemed to direct those efforts more towards me,” Jefferson recorded dryly, “but the thing could not be done.” Fast-forward to today – and we are still far from consensus on the exact contours of the treaty power in our constitutional system.  In a chapter on treaties in his excellent new book, International Law in the U.S. Legal System, Professor Curtis Bradley provides a doctrinal map of the treaty power, complete with thoughtful assessments of the level of certainty that attaches to each feature.  In this blog post, I’ll briefly describe Professor Bradley’s overall approach, then focus more specifically on Professor Bradley’s discussion of the scope of the treaty power, and close with a few remarks on the Bond case now pending in the Supreme Court.
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11 Mar

[David Moore is Professor of Law at BYU Law] Curtis Bradley’s “International Law in the U.S. Legal System” is a welcome and significant contribution to U.S. Foreign Relations Law.  Like Louis Henkin’s “Foreign Affairs and the United States Constitution,” it will be a resource that scholars will want to consult and cite as well as recommend to their students and have on reserve. The portion of the book on treaties addresses a wide-range of topics from treaty creation to non-self-execution to termination.  In addition to providing a clear overview of these topics and the sometimes unsettled questions they present, the discussion reveals an unspoken theme only partially captured by the book’s title.  Given its focus, the book is appropriately titled “International Law in the U.S. Legal System,” but the treatment of international law in U.S. law reveals that the interaction between U.S. and international law is not unidirectional.  International law affects U.S. law, even U.S. constitutional law, but U.S. law also affects international law. On the incoming side of the relationship, international law produces a range of effects on the domestic legal order.  Most passively, international law presents questions that domestic law must answer.  For example, Bradley notes that the international law of treaties recognizes that state parties may terminate their agreements under certain circumstances, such as material breach of a bilateral agreement.  The international law option to terminate raises the question of who within the domestic order can exercise that option.   Moreover, international law might go further and influence the answer to that question as the nature of international law may functionally favor a particular actor as the one best suited to exercise the termination power.  This sort of effect has arguably occurred in the context of determining the subject matter scope of the treaty power.  Bradley notes repeated historical suggestions that treaty-making might extend only to certain types of treaties or at least to matters of international concern.  International law, however, defines “treaty” very broadly by reference to the nature of the contracting parties and the obligations assumed, largely without reference to subject matter restraints.  Consistent with this approach, treaty-making has spanned a vast range of issues.  The breadth of international treaty-making is almost certainly a contributing factor to the current sense that the Constitution does not impose subject matter limitations on the treaty power.  With the Supreme Court positioned to address subject matter limitations on the treaty-making power next term in Bond v. United States, the link between international law and domestic definition of the treaty power may be broken.  At this point, however, the connection is apparent.
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09 Mar

[Moria Paz is a Fellow in International Law at Stanford Law School.] This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below. First of all, let me express my thanks to Efrat Arbel for her careful and thoughtful reading, as well as for her comments, for which I am grateful. Arbel and I largely agree on the descriptive analysis of case law in this area, which forms the bulk of the paper, although we may have partially divergent perspectives on the implications. In my comment, I very briefly recap the descriptive component and then discuss the normative elements of the study. In the paper, I used case law to demonstrate a significant disconnect between official rhetoric in human rights law and much narrower judicial practice in cases bearing on language. Formal pronouncements of the regime as well as prominent human rights scholars celebrate linguistic heterogeneity and seek to harness the international legal regime to protect, indeed even to create, linguistic and cultural diversity. When cases bearing on language reach major human rights courts and quasi-judicial institutions, and especially the United Nations Human Rights Council (UNHRC) and the European Court of Human Rights (ECtHR), these enforcement institutions do not in fact demand that states accommodate substantive diversity. The UNHRC and the ECtHR are not prepared to force states to swallow the dramatic costs entailed by a true diversity-protecting regime. Although they operate under different doctrinal structures, these two adjudicative bodies reach a similar legal outcome: they consistently allow the state to incentivize assimilation in the public sphere (on fair terms) into the dominant culture and language of the majority.
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07 Mar

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below. In my previous response to Ashley Deeks’ article, "Consent to the Use of Force and the Supremacy of International Law," I examined some of the practical, doctrinal, and systemic implications associated with Deeks’ challenge to international law supremacy. As I noted there, I do think the problem of unreconciled consent requires attention, if not a solution, in the use of force context. I would prefer that solution to come from domestic law. Nonetheless, to the extent international law is asked to fix this problem, I’d like to explore the context in which it would have to do so, and suggest an alternative solution to the problem that avoids giving domestic law supremacy over host State consent. Deeks suggests her duty to inquire (and the invalidity of any subsequent unreconciled consensual agreements) could arise via state practice or a modification to VCLT Article 46. I think both paths are problematic if State consent takes a treaty form (in contrast, if it’s a political commitment, I think a total or partial override of that commitment in favor of domestic law is much easier). In the treaty context, State practice favoring a duty to inquire runs up against VCLT Article 42(1):
1. The validity of a treaty or of the consent of a State to be bound by a treaty may be impeached only through the application of the present Convention.
This isn’t to say customary international law cannot override States’ treaty obligations under the VCLT (or the VCLT’s status as customary international law) but it’s not as simple an analysis as if States were creating a duty to inquire on a clean slate. The VCLT purports to be an “exclusive” list of grounds for invalidating State consent, which cuts against finding new or additional grounds for invalidity even in the use of force context.
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06 Mar

Tom Ginsburg is Leo Spitz Professor of International Law, Ludwig and Hilde Wolf Research Scholar and Professor of Political Science at the University of Chicago. Zachary Elkins is Associate Professor in the Department of Government at the University of Texas at Austin. This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below. In recent years there has been an active debate in the social sciences about the distinct “cultures” of qualitative and quantitative inquiry. Gary Goertz and James Mahoney, A Tale of Two Cultures: Qualitative and Quantitative Inquiry in the Social Sciences (2012). We ourselves have been skeptical of the extent of this purported divide, as our prior collective and individual work has sought to integrate the strengths of the two approaches. Professor Christopher Roberts’ thoughtful comments on our article demonstrate, in our view, the basic complementarity of the methodologies. Our article demonstrates a set of statistical relationships that are consistent with the interpretation that we give them: that constitutional and international rights are reciprocally produced, and that an important channel of impact for international human rights has been their adoption by national constitution-makers. Roberts draws on the historical literature to both supplement and challenge elements of this story, and to make the important point that it is, as always, a bit more complicated.
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06 Mar

Natalie Lockwood holds a J.D. from Harvard Law School, 2011; and an A.B. from Princeton University, 2006. This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below. First of all, let me begin by thanking Professor Burke-White for his careful reading and thoughtful response. I’m honored that someone whose own work I admire so much has taken the time and effort to engage with my article. I am also grateful to Opinio Juris and the Harvard International Law Journal for organizing this symposium. My article, "International Vote Buying," examines a feature of international relations that has not previously received much attention in legal scholarship—namely, the practice whereby states pay one another (with money or other concessions) to influence voting outcomes in international institutions such as the UN. For example: • In 2003, the United States allegedly pledged millions of dollars to Angola in connection with a UN Security Council vote that would have paved the way for the invasion of Iraq. • In 2008, Iran allegedly paid $200,000 to the Solomon Islands in exchange for future votes against Israel in the UN General Assembly. • In December 2009, Russia allegedly offered the island state of Nauru $50 million in exchange for its extending diplomatic recognition to Abkhazia and South Ossetia, the two separatist provinces in Georgia.
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05 Mar

[Efrat Arbel holds an SJD form Harvard Law School and is a postdoctoral fellow at the University of British Columbia Faculty of Law.] This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below. Moria Paz’s article, "The Failed Promise of Language Rights: A Critique of the International Language Rights Regime," is an important contribution to the literature on language rights. Paz advances a timely and insightful critique of judicial and scholarly treatments of language claims. Through a careful analysis of international and regional rights instruments, cases, and scholarly literature, Paz identifies a gap between the promise of language rights protection as articulated in these texts and the meaning these rights acquire in practice. At the heart of her analysis is a critique of the existing legal orthodoxy on language rights, and more specifically, its reliance on the vocabulary of human rights. Paz argues that approaching language claims through the rubric of human rights risks undermining the goals that motivate these claims, namely, effecting the distributional changes necessary to ensure linguistic diversity and protect minority language use. Arguing that the language of human rights is ultimately ill suited to achieve a robust protection of linguistic diversity, she advocates instead for situation specific analysis cognizant of political and material realities and demands. Such an approach, Paz argues, can better advance the structural changes and distributional demands that underpin language claims. Through a detailed analysis of 133 cases from the European Court of Human Rights (ECtHR), the United Nations Human Rights Committee (UNHRC), and the Inter-American Court of Human Rights (IACHR), Paz finds an unexpected alignment between these disparate bodies. Her analysis reveals an international status quo that fails to live up to the promise of protecting language rights as human rights. As Paz convincingly shows, the ECtHR, UNHRC, and IACHR take a narrowly utilitarian approach to language. The remedies they issue offer only pragmatic management of language claims, rather than meaningful substantive accommodation. All too often, these decisions accommodate minority language to facilitate communication with the majority language group, and offer a thin measure of protection that lasts only until the minority language speaker transitions into the linguistic mainstream. No less significantly, the decisions often oblige minority language speakers to bear the lion’s share of the monetary costs that come with linguistic redistribution. As Paz’s analysis makes clear, this approach does not view minority languages as assets to be celebrated and accommodated, but rather, constructs them as obstacles that minority language speakers must overcome to assimilate to the linguistic majority. To this extent, she argues, this approach fails to extend robust accommodation of linguistic diversity.
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05 Mar

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below. Ashley Deeks’ Article, "Consent to the Use of Force and International Law Supremacy," is a deeply provocative and thoughtful work that makes two very important contributions to international legal scholarship. First, she exposes and explores a latent ambiguity in the role consent plays in the use of force context. Second, and more ambitiously, Deeks proposes invalidating consensual agreements to uses of force (and other security, intelligence, and law-enforcement activities) where the acting State did not inquire and ensure that its activities comported with the host State’s own laws. In doing so, she argues that international law no longer needs – or deserves – the supremacy it claims when it conflicts with certain domestic laws. In this post, I want to take up this second, larger, claim about international law supremacy (in a second post, I’ll offer my reactions to her proposal to have international law invalidate consensual agreements that do not comport with the host State’s domestic law). Let me begin by emphasizing that I’m persuaded by Deeks’ descriptive claim that cases of “unreconciled consent” (where a host State consents to foreign State uses of force, drone deployments, renditions, etc., which the host State couldn’t perform under its own domestic laws) are occurring with increasing regularity. I’m also persuaded that unreconciled consent is a problem, particularly where the “permission” is granted in secret among executive agents who all have an interest in greater flexibility to operate free from any legal constraints.
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