Chapter 6 - The Domestic Effect of International Law - PowerPoint Presentation

1. Chapter 6 - The Domestic Effect of International Law1

2. The Importance of Treaties and International AgreementsTreaties and international non-treaty agreements (usually executive agreements) are critical in the foreign policy world.Treaties such as the WTO treaty contain their own enforcement mechanisms, which are as effective as the signatories allow them to be. The signatories to the NATO treaty promise mutual defense and military cooperation.These are not legally enforceable promises but depend on the signatory governments to honor them. Other treaties and agreements create the framework for international trade and transportation. These also depend on the voluntary cooperation of the signatory governments, but this is usually forthcoming because of the aggregate benefit to all of keeping the system working and the individual benefit to the trading nations.

3. What Makes a Treaty?3

4. International Law(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.In practical terms, a treaty is anything that the signatories call a treaty.

5. Under US lawA treaty is anything that the president submits to the Senate for advice and consent as a treaty. The rest of the world calls the Paris Climate Agreement a treaty, but Presidents Obama, Trump, and Biden called it an executive agreement. The Courts defer to the President’s classification of the agreement. It will not review an agreement to determine if it is a treaty that must be submitted to the Senate.At least as to judicial enforcement, it may not matter whether it is a treaty or an executive agreement.

6. Enforcing TreatiesAs 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)6

7. The President's RoleWhat are the president's roles in treaties?Negotiates the treatyEnforces the treatyCan abrogate the treaty.The enforcement role is critical because there is usually no recourse to judicial enforcement.Unless enabled by statute, most treaties depend on the president’s discretionary foreign and military powers for enforcement.7

8. Senate Approval (not Ratification) of the TreatyAdvice and consentWas 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.8

9. International Mechanisms for Enforcing TreatiesWhat is the international law significance of a treaty?NoticeStarting point for specific trade or defense policies.As much as the signatories attach to it.There is no general international body that enforces treaties.Treaties must contain their own enforcement agreements.These are only effective if the major signatories to the treaty support them.What mechanisms can be used, short of war, to enforce multilateral treaties such as the those deal with atomic energy?Trade and monetary sanctions.Limited value unless widely adopted.9

10. 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.Governments can change in signatory states, undermining the original purpose of the treaty. This is a clear foreign policy decision.Presidents can also terminate executive agreements at will.10

11. Enforcement of Treaties in the US Courts11

12. Self-Executing TreatiesTreaties with enough detail on their face for domestic enforcement by the courts are called self-executing treaties.This is a judicial call, not a bright line.Most treaties do not contain enough specific detail to allow private enforcement though the courts.An example is when a treaty preempts some state action, such as regulating emissions from foreign ships in its ports, because it is the subject of a treaty.12

13. Congressional Enabling of TreatiesMost 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.The legislation is discretionary – a treaty cannot force Congress to legislate or a president to sign legislation.13

14. What if a Legislatively Enabled Treaty is Abrogated?This legislation is separate from the treaty and remains enforceable if the treaty is abrogated.It can only be changed by passing a new law.Treaties like NAFTA and New NAFTA, which affect domestic enforcement in areas such as standards for licensing foreign truck drivers, require substantial statutory scaffolding. Treaties do not expand the power of Congress in either the domestic or international sphere.

15. Changing TreatiesAre unratified amendments legally enforceable - assuming any of the treaty is?What if the President adopts them as executive agreements?What if Congress amends the laws enabling the treaty so that it effectively changes the effect of the treaty?It is not clear that a President needs to go through the Senate for an amendment since the treaty can be extended by executive agreements – if the other parties to the treaty accept the amendment.15

16. How does a Court Decide what a Treaty Means for Domestic Enforcement?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?16

17. 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)Congress can end treaties or limit them by legislation, but it takes 2/3 of each house if the president chooses to fight the change.17

18. Executive and Other AgreementsThe US signs very few treaties. Presidents prefer to use executive agreements which are not subject to Advice and Consent.18

19. Types of Executive AgreementsThe Constitution does not mention executive agreements, thus there are no constitutional guidelines on their use, beyond the general limits on presidential powers.Most executive agreements have no specific authorization by Congress. Examples are the initial Iran hostage settlement in Dames v. Moore, the Iranian nuclear arms agreement, and joining the Paris Climate Accord.Congressional-executive agreementsCongress either approves them or delegates approval to the president.These have no additional legal force after Chadha unless enacted as a statute.Agreements made pursuant to treaty.Probably implicitly authorized by the treaty, but again, no additional legal force over pure executive agreements.19

20. Case-Zablocki Act: Congressional Limits on Executive AgreementsThe Case-Zablocki Act requires reporting agreements to CongressWhat 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.20

21. 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?21

22. 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, which prevented the court from enforcing its judgment.Private citizens tried to enforce the judgment in the US courts.The court found that there was no enforceable action in the absence of the US’s agreement.More fundamentally, it found no standing to enforce an international action that the US has not consented to.22

23. 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.Old dicta. The current majority of the Supreme Court does not defer to international law. 23

24. Effect of Treaties and Executive Agreements on State LawWhat 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.24

25. Al-Bihani v. Obama,  619 F. 3d 1 (DCC 2010)Guantanamo detainee challenging his confinement under international law.Future Justice Kavanaugh states the strong case that international law has no role in the US courts unless incorporated by statute. Congress can incorporate international law as part of legislation necessary to comply with treaty obligations. (Al-Bihani v. Obama)

26. Evidence of Congressional IncorporationThis may be by detailed statute, as was done to criminalize war crimes as part of the legislation passed to comply with the Geneva Convention obligations.Congress may also incorporate general international law concepts into US law and leave the courts to figure out what they.The problem is that international law tends to be general.The court will either have broad discretion or will find that the law is not specific enough – no intelligible principle – to effectively delegate power to the executive branch.

27. Presidential Abrogation of Multilateral AgreementsTrump 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.This agreement was “recognized” by the UN Security Council.Does the US abrogation of the agreement affect its legal status between the remaining signers?Only if there is a specific provision in the treaty that all must participate, or the agreement fails.What if the US tries to punish allies for continuing to support the agreement?Congress has given the President broad powers to control access to the US banking system and to trade with the US.27

28. Can Congress Abrogate Customary International Law?Can a US court issue an order based on the customary international law to enforce 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.28

29. Jus Cogens vs Customary International LawCustomary 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.29

30. Examples of Jus CogensTortureGeocideAre 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? Neither is solitary confinement in prisons.30

31. 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)Prisoners from Abu Ghraib prison in Iraq are suing the US contractor (CACI) under the Alien Tort Act for alleged torture performed on foreign soil.We will revisit the ATC in Chapter 7The torture victims are not suing the US directly in this case. 31

32. Is this Opinion Just Dicta?CACI is suing US for indemnification claiming that US personnel directed its 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 court is looking at the claims that sovereign immunity bars jus cogens claims.The procedural problem is that CACI has already settled a contracts case with the US which the court determined ended all of CACI’s claims.This means that there are no consequences from the legal analysis in the case.It is also unlikely that any contractor will get past the limitations in its contracts with the US so that it can sue for tort indemnification.

33. The Court’s ReasoningThis 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.33

34. Does US Jurisprudence Recognize that Every Right Must have a Remedy?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?The general principle that non-US persons outside the US have no constitutional rights?

35. The Consent Argument For Waiving Sovereign Immunity for Jus CogensAccordingly, 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. 35

36. Has the US Consented to Liability for Jus Cogens Violations?d. Consent Through Membership in the Community of NationsThe 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. : : :

37. What Type of Consent?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?Is it consistent with the treatment of international law in the US courts?In the next chapter we will look at treaties the US signed which are a stronger argument for consent.

38. Supreme Court Justices on International Law Norms as US Law38

39. 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.

40. Justice AlitoCongress 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.”

41. Justice Thomas “While Congress, as a legislature, may wish to consider the actions of other nations on any issue it likes, this Court’s Eighth Amendment jurisprudence should not impose foreign moods, fads, or fashions on Americans.”These are inline with the views of the other conservative justices.

42. THE DOMESTIC EFFECT OF INTERNATIONAL LAW: SUMMARY OF BASIC PRINCIPLESThe President negotiates a treaty and submits it to the Senate for advice and consent. The Senate may consent to a treaty with or without conditions.A treaty carries the interpretation that the Administration authoritatively provided to the Senate and that the Senate understood and relied upon when it gave its consent. But there is no consensus about which administration statements are authoritative or about how the Senate’s understanding is determined when the plain words of a treaty are ambiguous. Courts are the final interpreters of treaties, but they give substantial deference to interpretations provided by the executive branch.

43. International agreements may also be made by executive agreement without the advice and consent of the Senate. Congressional-executive agreements are made pursuant to delegated statutory authority. Treaty agreements are made pursuant to a treaty to which the Senate has consented. Sole executive agreements are made on the President’s independent authority with or without congressional acquiescence. Some executive agreements are non-binding under international law because they simply express moral or political commitments.A treaty has the same domestic force and effect of law as a statute, but both are subject to provisions of the Constitution. When a treaty and a statute conflict, the one enacted later in time controls. The Supreme Court has declared that treaties and executive agreements have the “same dignity,” but it has not expressly held that a sole executive agreement may trump an inconsistent statute.

44. When a statute violates a treaty, the treaty still has the force and effect of international law under the dualist U.S. legal system. Under the Charming Betsy rule of construction, courts must read U.S. statutes to avoid a conflict with international law, if such a reading is possible. [Outdated?]A self-executing treaty creates rights and duties without the need for implementing legislation, and is usually privately enforceable in U.S. courts, while a non-self-executing treaty must be implemented by statute. There is no consensus about which is which, or even about whether there is any applicable presumption that a treaty is either.

45. Customary international law is made by the consistent practice of states motivated by their sense of legal obligation. The traditional historical view that such law is part of our federal common law is today sharply contested as counter-majoritarian and therefore lacking in democratic legitimacy. Regardless, for domestic purposes most customary international law may be trumped by statute or, more controversially, by executive action or judicial opinion.A customary international law rule becomes a jus cogens, or peremptory, norm when the international community recognizes that it is a norm from which no derogation is permitted, such as prohibitions against slavery, genocide, and torture. A few cases suggest that jus cogens is incorporated into our law, but such incorporation has been hotly disputed.