Constitutional Convergence and Customary International Law

Filed Under: Article Responses, Student Features

In Getting to Rights: Treaty Ratification, Constitutional Convergence, and Human Rights Practice, Zachary Elkins, Tom Ginsburg, and Beth Simmons study the effects of post-World War II human rights texts on domestic constitutions, with a particular focus on the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR). After analyzing 680 constitutional systems compiled by the Comparative Constitutions Project to create a list of seventy-four constitutionally protected rights, the authors evaluate whether countries incorporate internationally codified human rights into their domestic constitutions, whether ratification of international agreements affects the probability of rights incorporation, and whether such incorporation increases the likelihood that countries enforce rights in practice.

After tabulating the data and running random-effects models, the authors find “a significant upward shift in the similarity to the [Universal Declaration] among constitutions written after 1948,” leading them to conclude that the Universal Declaration acted as a “template” from which constitutional drafters could select rights. They also demonstrate—after controlling for the era and a state’s prior constitutional tradition—that post-1966 constitutions from states that ratified the ICCPR are more likely to include its codified rights in subsequent constitutions than non-ratifying states. Finally, relying on Freedom House’s civil liberties index, the authors conclude that human rights agreement ratification and constitutional incorporation is correlated with improved human rights practice on the ground.

This ambitious project and its quantitative and qualitative findings are applicable to a wide range of international law scholarship. Getting to Rights offers new evidence relevant to convergence theory, provides empirical support for speculation on the effects of international agreements on domestic law, and determines that human rights are most effectively enforced when international and domestic law are applied in tandem. It also suggests a methodology for similar future research into the influence of supranational texts—such as the European, Inter-American, or African Conventions on Human Rights—on domestic constitutions.

From this garden of subjects, this response focuses on one offshoot: the consequences of the authors’ data on rights convergence for customary international law theory. After briefly reviewing the definitions of customary international law and jus cogens, I discuss the potential implications of converging constitutionally protected rights. I then examine the authors’ data in light of these hypotheses and conclude that, from this point forward, scholars who argue that certain norms have obtained customary international law or jus cogens status will have to address the Getting to Rights data. Due to the necessary brevity of this response, however, I leave more complete analyses of individual rights to others.

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Reciprocity and the Regulatory Function of International Investment Law

Filed Under: Article Responses, Student Features

In a timely article, Jason Yackee proposes a pair of important, attractive, and politically plausible reforms to the international investment law (IIL) system. Because his proposals offer real promise as a way to bolster the regime’s credibility and efficacy, this response will engage both the particulars proposed and the theory that informs them. I hope to suggest that, even for those who may not share Yackee’s theoretical framework or his normative reservations about the IIL regime, his proposals offer an attractive response to the slow-burn crisis of legitimacy that has dogged the regime for more than a decade.

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Does international investment law need administrative law?

Filed Under: Article Responses, Student Features

Jason Webb Yackee’s thoughtful article, Controlling the International Investment Law Agency, is an important contribution to a growing literature on the question of the legitimacy of the international investment law (IIL) system, and, in particular, investor-state arbitration, which is largely the focus of his article. Rather than taking a for-or-against position on the IIL system in its present form, Professor Yackee proposes that we accept the system as it exists and analogize it “to a domestic-law administrative agency in which significant policymaking authority is transferred from political organs to expert decisionmakers who are charged” to effect “the promotion and protection of foreign investment.” In viewing the IIL system through this lens, Professor Yackee argues that the system’s major weakness—“the lack of sufficient mechanisms of state political control”—is laid bare, and that the state can, in his view, be reinserted to “sit at the top of the decisional hierarchy” through application of administrative-law principles. The state is “re-stated” (my word, not his) at the center of the IIL system by recognizing that the system is a political one that needs political checks, and those checks are provided by states. In Professor Yackee’s view, principles of administrative law point the way to a partial solution—“the adaptation of notice-and-comment and legislative veto concepts to the dispute resolution process.” The idea is that viewing the IIL system through the lens of administrative-law agency provides a potential solution to the question at the heart of the system itself: what role should the state play in IIL, especially in the investor-state context?

In this response, I do three things. First, I examine whether there is a problem with the IIL system that needs an administrative-law solution. Second, I explore whether the analogy to administrative law helps solve the putative problem. Third, I offer some concluding thoughts to encourage the consideration of more than state interests in evaluating the IIL system.

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Conceptualizing the Shapeshifting Nature of Investment Law(yers)

Filed Under: Article Responses, Student Features

Within international law, international investment law (IIL) has become one of the topics that is en vogue. This follows on the heels of two interrelated developments. First, the proliferation of international investment agreements (IIA), most in the form of bilateral investment treaties (BITs), others forming part of more encompassing trade and investment agreements. Second, following this increase in investment protection for investors, there has been a surge of cases that have been adjudicated before international investment tribunals.

The increasing practical importance of IIL has been accompanied by a (still) growing number of academic contributions. Adding to this literature is Jason Yackee’s Controlling the International Investment Law Agency, which makes an important contribution to this field—while steering clear of the controversy over whether the system is overly friendly towards investors. This brief comment will first outline the main arguments of Yackee’s article (I.) and then critique some of the arguments it makes, specifically around whether there is indeed a functional IIL agency and Yackee’s comparative analysis with domestic administrative agencies (II.), before offering some concluding remarks (III.).

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Chief Justices Marshall and Roberts and the Non-Self-Execution of Treaties

Filed Under: Article Responses

David Sloss’s article, Executing Foster v. Neilson, is an important contribution to the literature on the judicial enforcement of treaties.[1] I agree with much of it, as I agree with much of Professor Sloss’ other writing on treaties.[2] In particular, I agree that the two-step approach to treaty enforcement that he proposes is generally the right approach, and I agree that the “intent-based” approach to the self-execution issue that he criticizes is highly problematic.[3] But Professor Sloss and I disagree about the source of this problematic approach. I have traced this approach to Chief Justice Marshall’s opinion in Foster v. Neilson.[4] Professor Sloss traces it to courts and scholars (including me) who, in his view, have misread Foster.[5] I shall address our differences on this point below. First, however, I shall explain my general agreement with the two-step approach to treaty enforcement that Professor Sloss defends.

The much-controverted question of treaty self-execution is widely understood to concern whether a treaty may be enforced directly by the courts or must instead await legislative implementation.[6] Professor Sloss proposes a two-step analysis for addressing this question. The first step is to determine what the treaty obligates the United States to do.[7] This is a question of treaty interpretation, to be answered through the application of the international law of treaty interpretation. The second step is to identify which domestic officials have the power and duty to enforce the obligation.[8] This, Professor Sloss argues, is entirely a matter of U.S. domestic law, not a matter of treaty interpretation.[9] Courts and commentators have fallen into error, and produced much confusion, by treating the second question as one of treaty interpretation, seeking an answer in the text of the treaty or in the parties’ intent.[10] Professor Sloss notes that treaties seldom address the question of which domestic officials—legislative, executive, or judicial—are responsible for enforcing the treaty.[11] Instead, treaty parties almost always leave that question to the domestic law of the states-parties.

Professor Sloss is entirely correct to note that seeking the answer to this question in the treaty itself is highly problematic. Although there is nothing in international law that prevents states from addressing that question in the treaty itself, the fact is that states almost never do so.[12] Domestic officials take their cues from domestic law, and states have very different constitutional rules concerning the need for legislative implementation of treaties.[13] In the United Kingdom and most nations of the British Commonwealth, treaties are never enforceable in the courts until they have been implemented by legislation.[14] The constitutional law of other countries permits the direct judicial enforcement of some treaties but not of others.[15] In the United States, for example, treaties that require the criminalization of conduct or the appropriation of money must be legislatively implemented because the Constitution has been interpreted to require a statute for those purposes.[16] Because of the diversity of domestic constitutional rules on the question, states rarely, if ever, address the issue of domestic implementation in the treaties they conclude. Seeking an answer to the self-executing question in the treaty itself is thus, in Justice Breyer’s words, like “hunting [for] the snark.”[17]No matter how hard they look, the courts will almost never find an answer there.

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[1] David L. Sloss, Executing Foster v. Neilson: The Two-Step Approach to Analyzing Self-Executing Treaties, 53 Harv. Int’l L.J. 135 (2012).

[2] See, e.g., David L. Sloss, Self-Executing Treaties and Domestic Judicial Remedies, 98 Am. Soc’y Int’l L. Proc. 364 (2004); David L. Sloss, Non-Self-Executing Treaties: Exposing a Constitutional Fallacy, 36 U.C. Davis L. Rev. 1 (2002); David L. Sloss, The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties, 24 Yale J. Int’l L. 129 (1999).

[3] Sloss, supra note 1, at 163.

[4] Carlos Manuel Vázquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 Harv. L. Rev. 599, 607 (2008) [hereinafter Vázquez, Treaties as Law]; Carlos Manuel Vázquez, The Four Doctrines of Self-Executing Treaties, 89 Am. J. Int’l L. 695, 700–05 (1995) [hereinafter Vázquez, Four Doctrines]; Carlos M. Vázquez, Foster v. Neilson and United States v. Percheman: Judicial Enforcement of Treaties, in John E. Noyes et al., International Law Stories 151, 167–68 (2007) [hereinafter Vázquez, International Law Stories]; Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829).

[5] Sloss, supra note 1, at n.26 (citing Vázquez, Treaties as Law); Curtis A. Bradley, Self-Execution and Treaty Duality, 2008 Sup. Ct. Rev. 131; Ernest A. Young, Treaties as “Part of Our Law,” 88 Tex. L. Rev. 91 (2009).

[6] See Sloss, supra note 1, at 137.

[7] Id. at 143.

[8] Id.

[9] Id. at 137–40, 143, 162, 188.

[10] See generally id.; see, e.g., Medellín v. Texas, 552 U.S. 491, 504–05 (2008).

[11] Sloss, supra note 1, at 163.

[12] Vázquez, Treaties as Law, supra note 4, at 607.

[13] Id.

[14] Id. at 679; Duncan B. Blakeslee et al., National Treaty Law and Practice 733–34 (2005).

[15] Id. at 17–18.

[16] Restatement (Third) of the Foreign Relations Law of the United States § 111(4)(c) cmt.i, n.6 (1987).

[17] Medellín, 552 U.S. at 549 (Breyer, J., dissenting).

One Step Forward, Two Steps Back?

Filed Under: Article Responses

I. Introduction

Kevin Heller’s essay A Sentenced-Based Theory of Complementarity marks a significant contribution to the growing scholarship on the International Criminal Court (ICC) and complementarity.[1] His proposed re-thinking of the complementarity regime is original and helpful in highlighting existing policy dilemmas of ICC practice. A “sentence-based” heuristic is appealing in its clarity and its objective to facilitate effective repression. Nevertheless, like Darryl Robinson,[2] I share some hesitation regarding the central claim of this theory. In my view, the argument that the ICC should focus “exclusively on sentencing” when determining whether “ordinary” crime prosecution is admissible is neither desirable nor manageable in all cases. I will focus on three aspects: The assumptions underlying the central claim, the desirability of a new methodology, and its manageability.

II. Underlying Assumptions

Heller’s case for a deviation from existing approaches relies on four basic premises: (i) the claim that the ICC admissibility test[3] creates undue pressure to charge international crimes under an international label, (ii) the alleged disadvantages of domestic prosecution of international crimes, (iii) the advantages of a “sentencing” heuristic over threat-based compliance, and (iv) the assumption that “higher” sentences might create “better” justice.[4] All four key assumptions merit further critical reflection.

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[1] See Kevin Jon Heller, A Sentence-Based Theory of Complementarity, 53 Harv. Int’l L.J. 85 (2012).

[2] See generally Darryl Robinson, Three Theories of Complementarity: Is it About the Charge, the Sentence, or the Process?, 53 Harv. Int’l L. J. Online 165 (2012).

[3] For a survey, see Jann K. Kleffner, Complementarity in the Rome Statute and National Criminal Jurisdictions (2008); 1 The International Criminal Court and Complementarity: From Theory to Practice (Carsten Stahn & Mohamed M. El Zeidy eds., 2011); Mohamed M. El Zeidy, The Principle of Complementarity in International Criminal Law (2008); Darryl Robinson, The Mysterious Mysteriousness of Complementarity, 21 Crim. L.F. 67 (2010).

[4] See Heller, supra note 1, at 87–88.