Kiyemba v. Obama: An Argument against Formalism?

One of this week's headlining news items? The legal limbo of 17 Chinese ex-detainees at Guantanamo. Their situation seems straightforward enough: taking advantage of their right to petition for habeas relief, the Chinese 17 filed for release from the now infamous detention facility--and won! Case closed, right? Freedom at last!

Well, not quite.

Their dilemma is thus. Although American control over Guantanamo Bay avails its population to some Constitutional protections--like habeas corpus--it comes up short of constituting American "sovereignty," or so the Circuit Court of Appeals for DC found. The practical result is that detainees, once released, have only so much access to life in American territory as an alien seeking admission (rather than an alien fighting deportation). Their feet may meet "American" soil only at the unrestrained pleasure of the Executive, notwithstanding any otherwise dispositive factors considered in deportation hearings (displacement, statelessness, alternatives, etc.)

Normally, no problem. But in the case of the Chinese 17, America is internationally bound by a countervailing commitment--i.e., not to repatriate these persons for likelihood of their political persecution in their nation of origin.

Admitting the ex-detainees is not going to happen--it's a political hot potato. Deporting them is not going to happen--doing so would violate the 1967 Protocol (incorporating most of the 1951 Convention relating to the Status of Refugees). So what about that habeas victory? Well, seeing as how the Chinese 17 remain held indefinitely at Guantanamo lacking any other recourse, it seems their hard-fought habeas writ isn't worth the paper conveying it.

However, this unsettling outcome wasn't necessarily foreordained. Few concepts in international scholarship are as unfixed and ever-evolving as "sovereignty." Precedent and treaty language--characterising Guantanamo Bay as being beyond ours--shouldn't have been given peremptory weight. Indeed, even the most formalistic definition of "sovereignty" would be remiss to disregard the term's practical component. But given the unusually wide gulf between the word's legal function and legal use, the approach favouring the latter over the former is particularly hazardous. As long used, "sovereignty" has served to recognize realities rather than create them. To confer upon a descriptive word prescriptive power is to threaten the type of absurd results Kiyemba illustrates.

Democratising Int'l Law: ECHR as an Approach?

Continuing where my previous post left off, a recent European Court of Human Rights (ECtHR) ruling, Case of Nolan and K. v. Russia, nicely illustrates one potential approach international law could take in addressing the democratic deficit problem. Of course, pondering the democratic deficit itself raises a host of preliminary questions. However, as any adequate treatment of them would extend this post well beyond its narrow scope, I'll mention some, but set them judiciously aside for another day:

• Is any universal morality we seek to advance ultimately best served by international lawmaking without regard to it, each party instead acting as rational self-aggrandiser?
• If international self-aggrandising behaviour is morally justifiable, does it nonetheless create universal obligations in its operation? Would these even resemble moral universals?
• Is democratic input an effective means to arrive at the universal obligations normatively warranted, either as overlap among states' own interests or lawmaking receptive to morals?

It's worth note, however, that at least some commentators consider democratic pressures in the international legal arena justifiable--indeed so much so that their absence makes legal internationalisation morally suspect. For the purposes of this post, I assume at least so much of their argument as casts international democratisation in a normatively desirable light.

The ECtHR, and its Nolan and K. v. Russia case specifically, is an example of how international arrangements might increase the democratic influence on global lawmaking. The role of the public is increased through their access to this court. And even where their efforts by it fail, the visibility it affords them may well spur debate, inform the court's institutional image, and ultimately steer its future jurisprudence.

Admittedly, ECtHR rulings bind State Parties only to the extent they consent. As such, individual actions may well have no substantive effect at the very moment of their disposition. Russia may not reverse its course with regard to Nolan; it might not revise its resident reentry policies at all. But the fact that Russia has committed itself to a broadly worded statement of human rights principles (The European Convention on Human Rights (ECHR)) and jurisdiction of a court tasked with the interpretation thereof works a democratising effect on its own. International law evolves through interplay between the instruments of the present and their framing against the past. As accession to the ECHR sweeps in a broad swath of states--developed and developing, NATO and CIS--its relevance to our times stands on its universality of reach. And being such an index, the law of the future will necessarily build upon the ECHR and its Court's interpretation--along with all its attendant receptivity to the public.

HCCAICA Caselaw and Overlooked Democratic Deficits

I couldn't in good conscience proceed on this topic without crediting its inspiration to a close friend. So, all due thanks to her for our earlier conversation, in which the Hague Convention on the Civil Aspects of International Child Abduction (HCCAICA) came up. This afternoon's reflections owe entirely to it.

By way of introduction, the HCCAICA is one of those rare international intruments that would extend signatories' citizens rights on their own terms but for expressly relegating that responsibility to each party's internal government. See Art. II, (referring to the instrument's otherwise self-executing legal regime as effective only on "Contracting States['...] implementation.") As such, Congress enacted these sections of the Code, thereby domesticating by incorporation HCCAICA law--verbatim.

Said unique process in importing this type of international instrument consequently generates unique practices in its application. And it is to these practices I turn in noting an often underappreciated source of democratic deficit, that infamous bugaboo in international law.

The problem of the democratic deficit is perhaps the most frequently raised criticism of international law. The argument is intuitive, and world history supportive: interstate agreements are compromissary arrangements reached for Realpolitik objectives--and resultantly, their contents govern citizens as a means to pursue state-to-state power structures rather than truly codify their will. Obviously, the deficit is most overt where a citizen is bound by laws made pursuant to his government's horse-trading with states he deems "oppressive" or "unethical." However, the very forum producing treaty-made law--an international arena where the public is at least one additional degree removed from his or her representatives--makes unavoidable some minimal degree of deficit.

However, certain approaches to treatymaking may, arguably, alleviate some of this drawback. Non-self-executing language--language which binds parties to each other without imposing mandates on how each honours its commitments by its citizens--leaves governments able to conform to their public's will as regards execution. A certain Treaty X which obligates Country A to pay Country B a $1 tax from each of its ten citizens (with the sole objective of raising a $10 tribute) could be much more democratically accomplished by leaving Country A discretion in collecting the funds. Furthermore, by involving publics in deciding matters of implementation, non-self-execution also expands the role of the vox populi on the merits of the commitment itself. The HCCAICA facially claims, at least, to have this advantage. Of course, its tight substantive regime undermines much of this advantage. But at least its facial relegation brought the House of Representatives into the debate.

But a considerable, albeit less discussed, source of democratic deficit is foremost in the HCCAICA context. If the language of domestic law implementing a treaty commitment requires interpretation, an obvious first stop is that treaty. Given, where a treaty extends wide discretion to a party's governmental processes in its enforcement, the source document needn't be basis for interpretation exclusively. But with the HCCAICA, the domestic law (for all intents and purposes) is the treaty. As such, courts applying the internalised Hague law have (predictably) availed themselves of the HCCAICA itself in matters of interpretation--necessarily importing its attendant international character and context in the process. In this way, international norms and customs--developed through the exact same compromissary exchanges and on the long train of state-to-state instruments produced thereby--work their way into domestic law even in the absence of a self-executing commitment. And any democratic deficiencies inherent therein do too.

Enter an example. Even though my familiarity with the mass body of HCCAICA caselaw is limited, 1993's Friedrich v. Friedrich, 983 F.2d 1396 comes to mind. There, the Sixth Circuit reversed a district court's read of the HCCAICA, ultimately inverting the outcome of the case. The district found for defendant; she lacked Hague liability for never having removed her and her plaintiff's child from a "habitual residence" sufficient to trigger the Convention's operation. Its opinion rested on a read of "habitual residence" as loosely synonymous with "domescile" in American domestic law. The circuit cited foreign interpretations and the purposes of the HCCAICA in disagreeing--"habitual residence" referring more to retrospective geographic reality than the formalistic legal connections to a court involved in the "domescile" analysis. Although the Circuit's interpretation has the advantage of intuitiveness: the avoidance of absurdity necessitates such a read of "habitual residence." (After all, if "habitual residence" became conflated with "domescile," it could effectively immunise any repatriation of American children no matter how violative of a foreign parent's rights.) The Friedrich Court nonetheless reached its result by referencing an international perspective--evidenced through British law, treaty history, and a canon of construction (avoidance of absurdity) not inconsistent with international jurisprudence. In this manner, even where an international commitment didn't pass automatically into domestic law, domestic law still became inernationalised. The democratic deficit remained a problem.

From this example, it's thus reasonable to assume that--globalization continuing and its legal framework evolving--past techniques used to address the democratic deficit will become less and less sufficient. The greater the complexity of our foreign relations, the greater the specificity required in its governing instruments. And as these effect a sort of de facto self-execution (as observed with the HCCAICA), other creative solutions must be sought.

Thoughts on such remedies to follow later.

Establishing ICJ Jurisdiction in a CERD Case

Not to belabour the topic, but another issue extremely pertinent to International Law was raised in the recent International Court of Justice's Ruling on the Georgia-Russia Dispute. As treated by this article, there's considerable disagreement over the pleading requirement for a Party seeking provisional ICJ relief for an alleged violation of the UN Convention on the Elimination of All Forms of Racial Discrimination. The question, most basically expressed, asks:

If you're Country A, seeking to pressure Country B into changing behaviours you allege violative of CERD commitments, what does the ICJ require you bring to the table to justify its dedication of judicial resources to your claim? At least, what's the threshold at the very start of litigation, where you seek only a decision on "provisional measures"--the sort of non-definitive, cursory relief aimed at stabilising a situation.

Of course, the ICJ would be backlogged into impotence if every petition--no matter how frivolous--triggered consideration. But at the same time, the provisional measure exists precisely as a way to give some notice to potentially meritorious claims while refraining from allocating more time and energy, until sufficient facts surface to warrant it.

As the article demonstrates, varying answers in precedent and yet another unclear one in Georgia v. Russia leave the matter relatively unresolved. To my eyes, this seemingly haphazard, ad hoc approach is precisely that--ad hoc. Chances are, the Court begins its analysis at the result it wishes to reach, and creates a rationale adequate to effect that end. And this is rather unsettling. Doubtless, ICJ Justices' awareness of global issues makes their subjective opinions on a claim's import not altogether arbitrary. But at the same time, how much of their awareness ultimately answers to their subjective sociopolitical leanings, opinions--even the media they consume or have available? Could a claim by East Timor against Indonesia ever confront the Court on equal footing as by the US against Iran? Could an allegation of improper discriminatory use of force by France in Algeria ever create as much a presumption of validity as by Serbia in Kosovo?

ICCPR and Proposed Sri Lankan Law

The United States Commission on International Religious Freedom (USCIRF) has issued a press statement urging policymakers to confront Sri Lanka over its impending passage of this law. The legislation is designed to address citizens' growing concerns that religious officials in positions of authority adopt improper means to obtain conversions. Due to its highly chaotic political situation, little independent report exists of the exact pervasiveness and severity of forced conversion in the country. However, it is worth note that anecdotal support and available factfinding prompted the UN Special Rapporteur on Religious Freedom to conclude the following in May 2005:

"[S]econd-hand accounts by credible sources indicated that conversions through 'improper' means have sometimes occurred." Source: US State Dept.

The USCIRF seems primarily concerned that the breadth of language in the draft law could ultimately undermine, not promote, religious and other freedoms. At the same time, it concedes that forced conversion is a concern "legitimate" enough to warrant legislative action. For the following reasons, I'm skeptical of the USCIRF's criticism.

1) The culturoethnic cleavages present in Sri Lanka--in extent and repercussions--are virtually inconceivable to Western observers. The longstanding and self-perpetuating Tamil-Sinhala divide continues decades of civil war and all the atrocities attendant therewith. And, likewise foreign to outside eyes, is the nature of this rift. Unlike communal tensions familiar to most of us--where the pertinent factions are visibly distinguishable and their relations therefore simple (albeit not necessarily easy) to regulate--Tamils and Sinhalese differ by their respective communities' distinctive sets of many attributes--otherwise less blatant on their own. Language, culture, religion, profession, name: they all contribute to forming the identity.

Against this backdrop, the Sri Lankan authorities have decided to pursue regulation of one of these flashpoints: namely, religion. This forms the ground for my first criticism. The USCIRF's uneasiness with the law seems to stem in some degree from the justification they ascribe to it--promotion of religious freedom. Then, reasoning that advancing this aim does not militate against restrictions on some conversion practices, defines those legitimate and those illegitimate by their anticipated impact on that narrow goal. However, as the goal expands, as does the universe of potentially legitimate means. It may well have been the determination of the Sri Lankan government that promoting certain religious freedoms could prove useful in combatting prevailing civil strife, but only as executed in a particular way that could incidentally burden others. In the context of a stable, developed nation wishing to improve its human rights image worldover, the purpose of this type of law may be exactly what the USCIRF infers. And on that condition, many of its criticisms would apply with greater force. But we must not ignore context.

2) The USCIRF also insinuates that the proposed law conflicts with Sri Lanka's obligations under the International Covenant on Civil and Political Rights. However, it's necessary to note that its concern arises thus: that the law's vagueness or ambiguity could legalise prosecutions violative of that treaty. The key here is that nothing on the law's face mandates such behaviour. And, as Sri Lanka's ratification of the ICCPR, without reservation, domesticated its self-executing language, the ICCPR is just as much Sri Lankan law of the land as the proposed law would be. As it's a long-established rule of statutory interpretation that laws capable of being brought into harmony ought to be, there's no reason to believe that any behaviour not prosecuted heretofore, out of respect for the ICCPR, now will be.

Self-Execution in Collective Security

Introduction

As I've intimated before, a given treaty's self-execution is--or should be--a preëminent concern of any State Party's individual citizens. Summarily, self-execution extends enforceability of a treaty-designated right or privilege directly to the individual, through his nation's courts. Where a self-executed right vests, you as citizen are empowered to secure it without any additional governmental recognition thereof. But be forewarned: due to the nature of the treaty (a Nation-Nation reciprocal agreement), such self-executing rights are rare. Treaties are, foremost, instruments between sovereigns meant to define mutual state-level obligations. Thus, the onus of enforcement has historically fallen to the signatory governments, compliance dependent upon the pressures of international politics.

But newer generations of state-to-state agreements have made self-execution more common, as a) the content of these treaties is increasingly individual-pertinent, and b) where obligations of member states relate to a), often the most reliable and economic means of ensuring compliance is self-executability.

Specific Examples

Hypothetical I: Non-Self-Executing Rights

As a result of a given country Y's concerns about neighbour X's refugee outflow into its territories, the following agreement is reached: X agrees to a schedule of reduction in outmigration in exchange for Y's promise to assist X in meeting the schedule with $4m in aid upfront, and monthly support of $200k upon meeting schedule commitments, payable out to 5 years.

X undisputedly complies with its commitment, but a new administration in Y decides to renege on its own. X, then, is forced to scale back its efforts to reduce outmigration, leading to renewed exodus into Y.

As a result of the above noncompliance, a farmer, citizen of Y--with property abutting X--loses the productivity of his land due to resultant immigration patterns. Obviously, said farmer would love to seek to enjoin his nation's treaty compliance, but as the X-Y Treaty commits its Parties to behaviour exclusively toward the other, said farmer has no claim.

Hypothetical II: Self-Executing Rights

Importing the treaty and subsequent noncompliance from the first hypothetical, the above farmer could conceivably raise a claim provided the following language is added to the instrument: X and Y hereby assume any liability to their own citizens arising incident to its own breach.

Unlike in Hypothetical I, here, the X-Y Treaty commits its Parties both to specified treatment of the other, and its own citizens.

The advantage to the contracting Parties in modifying the instrument thus is obvious: breach becomes more costly. A word of caution is necessary, however: even language so unambiguously conferring individual rights may nonetheless actuate no self-execution at all. Where, for example, a nation's Constitutional structure is overridden by such terms, they become nullities. And in addition, if, pursuant to a nation's Constitution, subsequent domestic law preempts the terms, there too they become ineffective.

In Practice: The Neilson-Percheman Cases

This article's treatment of two famous early Supreme Court cases involving self-execution, Neilson and Percheman is illuminating. In essence, at least in regards American law, since all treaty-made law is coequal to legislative enactment, though the question involves a nation-state's treaty-conferred obligations to its citizens, in answering whether, in fact, a treaty has this effect, the test becomes:

Does the treaty fulfill an obligation on its own terms?

This actually makes intuitive sense. Even if the subject of a treaty seems far removed from providing individuals substantive rights, it does exactly this when its promises require no legislation in support. Consider, in elucidation, an importer's beliefs his wares were wrongly classified under the pertinent Harmonized Trade Schedule (a mundane domestic law). Of course this importer has recourse to the courts, by sheer virtue of the harm imposed by the Government's failure to abide by its own guarantees.

So, if:

Treaty A provides that the United States "hereby restores MFN status to Nation X," a domestic exporter thenceforth restrained by the US in its dealings with X, if inconsistent with American guarantees of MFN status, would possess a viable claim. However, if

Treaty B provides that the United States "pledges to normalize trade relations with Nation X," a similarly situated domestic exporter would have no such recourse. Consider: if Treaty B were instead language in Congressional enactment, it would confer little more than guidance regarding Congress' intent toward Nation X at that particular period in time; more legislation would be required for legal effect. Note that even a more straightforward "recognition of normalized trade relations" would likely have the same effect: the ambiguity of "normalized" and, thus, implication of necessary follow-up legislation for its concrete realization into law, would similarly render this agreement non-self-executing, insufficiently consummate on its own.

In the Collective Security Context

Remarkable for being within in the context of security arrangements, there exist many instances in which the Treaty Power, so utilized, has vested American citizens with directly exercisable rights and privileges--usually under subsequent protocols and addenda to well-established institutions. See e.g., NATO-SOFA. But perhaps the more interesting issue is where strongly-worded security assurances themselves are involved. Could an international security instrument ever judicially bind the US government in such situations? Consider the following:

1) Assuming arguendo that language under an agreement, made through an Article II treaty, prospectively declared war on any ally's adversary upon the former's invasion thereby, this would presumably be non-self-executing, as Congress' exclusive Article I War Powers would require further implementation. But,

2) If the above agreement were instead an Article I Congressional-Executive Agreement, could, provided later Congressional unwillingness to vote against war, individuals be vested with the power to enjoin the Government to honour the agreement? Unpacking the issue proceeds thus:

Given the broad martial authority vested in the Executive--by implication through His express role as commander-in-chief--Article I War Powers have long been interpreted as a dormant Congressional power to restrain military force when unexercised rather than a power to commit military force when exercised. In essence, declarations of war (or other Congressional use-of-force authorizations) expand the already-notable Executive power to conduct warfare, but compel nothing. They can only broaden executive discretion, not confine it. (This owes to the President's exclusive authority in executing such Declaratory grants, per his role as general of generals.) To argue otherwise would be to imply legislative means to bypass the Executive in the purely executive province of commanding armed forces. This is an argument too absurd to admit of consideration.

Consequently, even if a state of declared war were a self-executing entitlement of individual citizens, the precise nature of such a "right" within the US Constitutional scheme conveys nothing substantive to the individual seeking judicial enforcement. Here too, then, such a "right" becomes a nullity.

3) One would be foolhardy, however, to assume that treaty language directly implicating security matters could never create self-executing guarantees. As I mentioned in my last post, the Paris Accords includes a provision vis-à-vis Laos that could arguably do just that. Consider the text, in pertinent part:

"The [US] shall respect the neutrality of Cambodia and Laos."

As aforesaid, Article I War Powers imply that at some point, Presidential commission of armed force becomes ultra vires--beyond his Constitutional authority without Congressional consent. However, the line between lawful and unlawful activity in this area has as yet gone unexplored. Presumably the line is as context-specific as any executive action predicated on legislative will. For this reason, the Youngstown analysis could prove helpful, albeit with due modification. Obviously, the Executive maintains some degree of latitude in committing the armed forces notwithstanding the fiercest Congressional hostility. And indicia of Congressional approbation short of outright declarations of war could dilate executive capacity beyond its default bounds, but be nonetheless insufficient for constitutional exercise of total war.

In this instance, the Paris Accords provide a relevant expression of legislative will--even if their ratification involved supermajoritarian Senatorial approval rather than traditional bicameral consent. Their use as a Youngstown-type interpretative tool is nonetheless valid. Hence, the Accords work as some form of additional constraint on Executive martial authority just as a similar domestic law would (at least, provided the Accords remain binding by their content on the US toward Laos). And, take note, they do this by their own terms. For this reason, they provide a form, at least, of self-executing rights. If, on unilateral Presidential initiative, such extensive military operations were conducted against Laos to call into question their validity, their American opponents would have recourse to the instrument in making their case.

Self-execution, believe it or not.

Football, War, and Global Security

All right, so in a desperate attempt to be topical, I've decided to dedicate today's post to a war which only incidentally involved football--and by which "soccer" is really meant. But be fair. It's no easy task to tie current sporting events in with public international law spur-of-the-moment.

So, what is this whole Football War thing? And, more importantly, how does a brief, forgotten skirmish three decades ago relate to public international law going forward? It would appear (at least, by cursory glance at the Wikipedia article embedded above) said conflict is an inert and obscure footnote in wanting relevance to today's international relations. References back three decades should implicate the Baathist Movements in Syria or Iraq, or the Six-Day War, or the widening of the Vietnamese theatre into Laos, right? I mean, those are watershed events which palpably shaped world players' interpretations of commitments towards each other. And occasionally they even transformed those commitments altogether. See e.g., Art. 20 of the Paris Peace Accord (turning previous, non-self-executing commitments to recognizing Laotian neutrality per ill-defined Charter principles into arguably self-executing obligations).

But, the Football War (and its resolution specifically) serves as the clearest case study for how the implementation of a facially strong collective security agreement can color it into irrelevance.

First, a summary primer on the war and its legal backdrop.

For years prior to the 1969 conflict, tensions between the two relevant nations (El Salvador and Honduras) simmered over immigration patterns. It all began thus: El Salvador was overpopulated and woefully short of resources; Honduras had land and jobs to spare, and a sociopolitical elite more than willing to overlook inadequate border security. What could be better for these Hondurans than cheap migrant workers unentitled to legal rights? However, the resultant demographic shift created political turmoil. Lower class Hondurans were put out of work--pushed into desperation. And the upward pressure thus placed on elite Hondurans required they respond somehow, for legitimacy's sake. Enter the football rivalry of '69. The nations' teams were tightly matched, and the peculiar demographics of Honduras meant that its home games against El Salvador were attended in roughly equal numbers by loyal Hondurans and Salvadorans. With Honduran footballers blaming their Salvadoran counterparts for their woes, and El Salvador responding to sporadic reports of violence against its nationals with retaliation in kind, the resentment escalated into outright war. Indeed, for the Honduran leadership, war was not altogether unwelcome; as a form of national catharsis, it may have seemed cheaper than expanding social support or citizenship.

There was a legal hitch, though. Both Honduras and El Salvador were State Parties to the Inter-American Treaty of Reciprocal Assistance, along with hegemon America. The Treaty reads, in pertinent part:

"The High Contracting Parties agree that an armed attack by any State against an American State shall be considered as an attack against all the American States."

(Note the analogous language of Article V of the North Atlantic Treaty.)

And even though IATRA members are obligated to "undertake[] to assist in meeting the attack," whereas NATO members are bound to "take forthwith [...] such action as [they] deem necessary," in light of the quick response of IATRA governing organs in responding to the Honduras-El Salvador crisis, it would seem that circa 1969, State Parties to IATRA viewed their collective security commitments thereunder just gravely as NATO members to the North Atlantic Treaty.

But as condemnatory as the IATRA response was, the Treaty ultimately failed in its operation. No State Parties directly intervened. The Football War instead puttered out slowly, IATRA's harsh criticism notwithstanding. The conflict ended when neither nation had logistical means to continue on. And for this reason, the Football War too was a watershed moment. By means of precedent, it devalued IATRA into an empty gesture.

Keep in mind exactly how far the implications of IATRA's downfall reach. Heretofore, America's most enduring diplomatic bulwark against threats to her and her allies has been NATO. From a textual standpoint, however, NATO and IATRA differ very little. In fact, their dissimilarity hinges almost entirely upon how precedent has informed the two instruments' interpretations in starkly contrasting ways. Conceivably, a "Football War" within the NATO context could undermine that alliance too.

It thus goes without saying that America would be wise to refrain from expanding NATO in ways that could spawn such wars.

Who could have imagined the continuing significance of such an insignificant little war?