The Domestic Impact of International Law

Chapter 6 - The Domestic Effect of International Law 1

What Makes a Treaty? (1) the states intend the agreement to be legally binding under international law; (2) the agreement deals with significant matters; (3) it clearly describes the obligations of the parties; and (4) it takes a form consistent with the intent that it be legally binding. 2

What do treaties depend on for enforcement? As the Supreme Court said in the Head Money Cases, a treaty depends for the enforcement of its provisions on the interest and honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamations . . . [but] with all this the judicial courts have nothing to do and can give no redress. Head Money Cases, 112 U.S. 580 (1884) 3

The President's Role What are the president's dual roles in treaties? Negotiates the treaty Enforces the treaty Why is the enforcement role critical? Why is the president's role more important in international law? 4

Senate Approval of the Treaty Advice and consent Was the senate meant to participate in drafting treaties? What if the senate will not approve the treaty without changes? These become part of the treaty if they are accepted by the other signers. The treaty is not ratified until the president delivers the approved treaty to the other treaty signers. Fast track - the Senate promises to not mess with the treaty, only to vote it up or down. 5

International Mechanisms for Enforcing Treaties What is the international law significance of a treaty? Notice Starting point for specific trade or defense policies. There no general international body that enforces treaties. Treaties must contain their own enforcement agreements. What mechanisms can be used, short of war, for multilateral treaties such as the those deal with atomic energy? Trade and monetary sanctions. Limited value unless widely adopted. 6

Enforcement of Treaties in the US Courts 7

Self-Executing Treaties Treaties with enough detail on their face for enforcement are called self-executing treaties. This is a judicial call, not a bright line. Presidential enforcement requires less detail in treaties because the courts will defer to executive interpretation of the treaty. Like Chevron. Third party enforcement of treaties will require specific details in the treaty that can be enforced by the courts. Most treaties do not contain enough specific detail to allow private enforcement. 8

Congressional Enabling of Treaties Most treaties are general statements of policy on domestic obligations. These treaties must be enabled by Congress passing specific legislation to enact the provisions into domestic law. This legislation stands alone from the treaty and remains enforceable if the treaty is abrogated. It can only be changed by passing a new law. Treaties do not expand the power of Congress. 9

Changing Treaties How is amending a treaty different from terminating it? Are the (unratified) amendments legally enforceable - assuming any of the treaty is? Are the amendments just executive agreements, as discussed below? 10

How does a Court Decide what a Treaty Means? The text of the treaty. Any modifications that the Senate attaches as part of approval. Any statutes that have been passed to enable the treaty. If the treaty is ambiguous, should the president be allowed to introduce secret notes from the negotiation that were not presented to the senate? Why is the president s disavowal of a part of the treaty more persuasive than his trying to add to the treaty? See the next section on abrogating a treaty. 11

Presidential Abrogation of Treaties - Goldwater v. Carter, 617 F.2d 697 (1979) This was a challenge by Senator Goldwater against President Carter s abrogation of the Panama Canal Treaty. Vacated by United States Supreme Court as a non- justiciable political question. Abrogating a treaty does not change any legislation enabling it. Why is abrogating a treaty the President s unilateral call? There is no constitutional provision for ending or modifying a treaty, only notice and comment for new treaties. 12

Can Statutes Abrogate Treaty Provisions? With the support of the US, the UN Security Council required an economic boycott of Rhodesia. Senator Byrd amended a statute to block the boycott Congress can denounce treaties if it sees fit to do so, and there is nothing the other branches of government can do about it [; thus] the complaint [states] no tenable claim in law. Diggs v. Shultz, 470 F.2d 461 (D.C. Cir. 1972) Thus Congress can end treaties or limit them, but it takes 2/3 of each house if the president chooses to fight the change. 13

Executive and Other Agreements The US signs very few treaties. Presidents prefer to use executive agreements which are not subject to Advice and Consent. 14

Types of Executive agreements The Constitution does not mention executive agreements, thus there are no constitutional limits on their, beyond the general limits on presidential foreign powers. Pure executive agreements have no authorization by Congress. Examples are the Iran hostage settlement, the Iranian nuclear arms agreement, and joining the Paris Climate Accord. Congressional-executive agreements Congress either approves them or delegates approval to the president. These have no additional legal force after Chadha. Agreements made pursuant to treaty Probably implicitly authorized by the treaty, but again, no additional legal force over pure executive agreements. 15

Case-Zablocki Act: Congressional limits on agreements The Case-Zablocki Act requires reporting agreements to Congress What if the president does not comply? Calls them arrangements, rather than agreements? Does not tell anyone other than Putin? Does that make the agreements void? The key question is whether the President has the power to carry the agreement without congress. As with treaties, Congress can pass a law limiting an executive agreement, but this will take a veto override if the president fights. 16

Can Treaties and Executive Agreements Supersede the Constitution? - Reid v. Covert, 354 US 1 (1957) US citizen spouses of military personnel who murder their husbands on a US base outside the US. By executive agreement, military dependents outside the US could be tried by a courts-marshal, without a jury of their peers. At this point, we are only looking at the case for question of whether a treaty or executive agreement can change constitutional rights. They cannot. We will look at the harder question later how much of the constitution applies outside of the US? 17

Committee of US Citizens living in Nicaragua v. Reagan, 859 F2d 929 (1988) [We are reading this for limited purposes] In 1986, the International Court of Justice (ICJ) ruled that U.S. support for paramilitary activities against the government of Nicaragua violated both an international treaty and customary international law. The US terminated its agreement to accept the jurisdiction of the ICJ, what prevented the court from enforcing its judgment. Private citizens tried to enforce the judgment in the US courts. The court found that there was enforceable action in the absence of the US s agreement. More fundamentally, it found no standing to do enforcement of the an international action that the US has not consented to. 18

The Charming Betsy Rule of Avoiding Conflict with International Law an Act of Congress ought never to be construed to violate the law of nations if any other possible construction remains. Murray v. The Schooner Charming Betsy Where fairly possible, a United States statute is to be construed so as not to conflict with international law or with an international agreement of the United States. Restatement 19

Effect of Treaties and Executive Agreements on State Law What is the conflict if California decides to have its own foreign policy and passes laws that affect international affairs? If challenged, the court will strike these laws as implicitly preempted because the federal government fully occupies the foreign policy space. Treaties can preempt state laws on domestic matters through the commerce clause if they are sufficiently specific. An executive agreement can preempt to the extent that it relies on the president s intrinsic foreign powers. This is usually left to enabling legislation, such as overruling state truck licensing laws as part of NAFTA. 20

Statutory Incorporation of International Law Congress often incorporates international law as part of legislation necessary to comply with treaty obligations. (Al-Bihani v. Obama) This may be by detailed statute, as criminalizing war crimes as part of the Geneva Convention obligations. It may also be by incorporating general international law concepts into US law, and leaving the courts to figure out what they. Is there any think special about international law as compared to incorporating any other standards, such as building codes? 21

Abrogating Multilateral Agreements Trump abrogated the multinational agreement the Obama administration struck with Iran and other nations in 2015, the Joint Comprehensive Plan of Action (JCPOA), and reimposing U.S. sanctions on Iran. (Supplement p. 16) This agreement was recognized by the UN Security Council. Does the US abrogation of the agreement affect its legal status between the remaining signers? What if the US tries to punish them for supporting the agreement? The dollar problem. 22

Can Congress Abrogate Customary International Law? Can a plaintiff get a US court to issue an order based on the customary international law to enforcing judgments of the International Court of Justice, in the face of legislation rejecting jurisdiction of the court? But even [so] there is nothing in [a treaty] which makes it irrepealable or unchangeable. The Constitution gives it no superiority over an act of Congress in this respect, which may be repealed or modified by an act of a later date. In short, we are of the opinion that, so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification, or repeal. 23

Jus Cogens vs Customary International Law Customary international law, like international law defined by treaties and other international agreements, rests on the consent of states. A state that persistently objects to a norm of customary international law is not bound. In contrast, jus cogens embraces customary laws considered binding on all nations and is derived from values taken to be fundamental by the international community, rather than from the fortuitous or self-interested choices of nations . [T]he fundamental and universal norms constituting jus cogens transcend such consent, as exemplified by the theories underlying the judgments of the Nuremberg tribunals following World War II. 24

Examples of Jus Cogens Torture Geocide Are these well-defined terms that would pass a vagueness challenge if used as the basis for a criminal trial in the United States? That was the basis for the torture memos and the defense when the drafter was sued for enabling war crimes. Congress has defined torture by statute as being what would violate the constitutional prohibition on cruel and unusual punishment. Is that consistent with international norms? 25

Al Shimari v. CACI Premier Tech., Inc., 368 F. Supp. 3d 935 (E.D. Va.), appeal dismissed, 775 F. App'x 758 (4th Cir. 2019) Abu Ghraib prison case Foreign nationals sue US contractor (CACI) under the Alien Tort Act for alleged torture performed on foreign soil. We will revisit the ATC in Chapter 7 CACI sues the US claiming that US personnel directed the actions and should be liable. The US says that all claims are barred by sovereign immunity and that the US has not waived sovereign immunity for international law-based claims. The appeal was dismissed on technical grounds, not based on affirming the findings. The case is on appeal to the United States Supreme Court. 26

The Courts Reasoning This right, which is created by international law, is binding on the federal government and enforceable in the federal courts, and the basic axiom that where there is a right, there must be a remedy leads to the conclusion that the government has waived its sovereign immunity with respect to alleged jus cogens violations. Once it is determined that jus cogens violations infringe on federal rights, it becomes clear that there must be a remedy available to the victims. Indeed, the ancient legal maxim ubi jus, ibi remedium [w]here there is a right, there should be a remedy is as basic and universally embraced today as it was two hundred years ago. How does this notion that all rights have remedies square with the Supreme Court s refusal to extend Bivens? What about the exclusion from the FTCA for injuries from governmental policy choices? 27

The Consent Argument Accordingly, both by participating in the Nuremberg trials and the parallel development of peremptory norms of international law and by continuing to recognize the existence of such peremptory norms, the United States has waived its sovereign immunity for any claims arising from the violations of such norms. d. Consent Through Membership in the Community of Nations The United States has also consented to suit with respect to jus cogens violations by holding itself out as a member of the international community because the respect and enforcement of jus cogens norms are fundamental to the existence of a functioning community of nations. Jus cogens norms have been developed not only to safeguard the rights of individuals but also to provide an obligatory framework for ordering the relations of states because, as in any community, the absolute protection of certain norms and values is necessary for the public order of the international community. Belsky et al., supra, at 387. : : : Accordingly, by holding itself out as a member of the international community, the United States has impliedly waived its sovereign immunity for jus cogens violations because the continued deployment of such immunity would be fundamentally inconsistent with any desire to maintain an international legal order. Is this a stronger argument than all rights have remedies? 28

Supreme Court Justices on International Law Norms as US Law Judge Kavanaugh First, international-law norms are not domestic U.S. law in the absence of action by the political branches to codify those norms. Congress and the President can and often do incorporate international-law principles into domestic U.S. law by way of a statute (or executive regulations issued pursuant to statutory authority) or a self-executing treaty. (Al- Bihani v. Obama) They are not implicitly incorporated in statutes. Incorporation must be explicit. Justice Alito: Congress may act to bring provisions of international law into federal law, but they cannot find their way there on their own. The law of nations is not embodied in any provision of the Constitution, nor in any treaty, act of Congress, or any authority, or commission derived from the United States. These are inline with the views of the other conservative justices. 29