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"Bait and Switch" on Treaties?

Ed Whelan at National Review Online's Bench Memos argues:

American transnationalists ... use a bait-and-switch game on "human rights" treaties. In urging that the United States adopt the treaties, they hide behind the treaty's grand and sweeping statement of a seemingly unobjectionable principle. Focused on the supposed concerns of a hypothetical world community, they trumpet the need for the United States to make an "important global statement" and to show that "our national practices fully satisfy or exceed international standards." Meanwhile, at the same time as the supervisory committee established by the treaty is interpreting the treaty to advance a radical agenda, American transnationalists obscure or dissemble about what the treaty committee is doing when they are speaking to the Senate and the American public — and then they turn around and use its interpretations to advance their agenda in courts.

I'm not sure of the intentions of the people involved; Whelan is criticizing Koh here, but that's not my goal with this post. But the intentions might not matter that much, because my sense is that this is indeed a potential danger, even if everyone's intentions are pure.

Whenever one is proposing adherence to a treaty, or the enactment of a statute, it's tempting to describe the proposal narrowly. Then once it's enacted, it's tempting to read this broadly. People being what they are, they fall into this temptation, and the rest of us may find the result to be a bait-and-switch even if it wasn't so intended.

And it strikes me that this is indeed a potential danger with a range of "human rights" treaties: We might indeed sign on to the text of a treaty because the text seems sensible, but then end up some years or decades later being stuck with international interpretations of the treaty that are much broader than the text suggests. To be sure, we could say "We signed on to the treaty's text, not its interpretations." But that might be a difficult argument to make, especially (1) when people are pressing us not to alienate the "international community," and (2) given that deference to judicial and even executive interpretations of domestic statutes — and not just to the statutory text — is an American legal norm.

But this is just a tentative judgment, based on my limited experience with the field. Can those of you who have more experience with these sorts of international treaties speak to this question?

martinned (mail) (www):
I am not aware of any instance where resolutions of the Human Rights Council or similar bodies have been taken seriously. Whenever anyone is serious about forming an international body of interpretation on top of the text, they tend to set up an actual court, such as the ECHR.

As noted in other threads recently, civil law courts don't tend to cite foreign rulings ever. They certainly wouldn't cite UNGA resolutions or human rights council resolutions absent some showing that those resolutions really did represent a statement of international (customary) law. When interpreting an international treaty like the ICCPR, each civil law jurisdiction tends to form its own body of case law. When that is undesirable, they create a supranational court.
4.14.2009 7:49pm
Benjamin Davis (mail):
I participated as a representative of the Society of American Law Teachers in the Non Governmental Organization side meetings with the meetings of the Committee on the Elimination of Racial Discrimination at the UN in Geneva in February 2002. They were reviewing the US periodic report.

For what it's worth, the DOJ representatives made an insistent presentation that the treaty obligations are looked at very carefully by the DOJ and other departments at the time the United States decides to take on the obligation. On Human Rights treaties the Reservations, Understandings and Declarations (RUD's) are typically made by the United States with regard to those parts that raise a concern with regard to our constitution.

The issue that did arise is that the American view of the treaty was based on the US constitutional approach and foreign relations law approach. Those were the interpretations that the United States were arguing were the basis for evaluating the compliance with the treaty obligations by the United States. The perspective on the international level is to look at the Vienna Convention on the Law of Treaties approach to interpretation which places much less weight on the preparatory work and more on the text of the treaty. The effect of the US foreign relations law approach was to seek to implement and discuss the treaty obligations in legalistic terms that were American and more narrow then what the language of the treaty would permit. For example, the whole affirmative action debate in US Constitutional structure as the sole mechanism for remedying past discrimination looks very narrow when one looks at the broader possibilities that to which the treaty language applies.

You should keep in mind, for example, the problem of police torture in Chicago of black men. NGO's in Chicago brought their report about the cases of unprosecuted police torture in Chicago - quintessentially state as opposed to federal crimes. These were brought to the attention of the Committee and, as part of the committee's final report, the United States' attention was brought to the problem of racial discrimination by the police in Chicago. The interaction between the Committee work and the local community work in Chicago provided a mechanism to raise awareness of the problem. I understand that there has since been more movement by the state authorities in Chicago to address the cases. In the absence of the human rights reporting mechanism, it is likely that the ability to get attention to the internal problem in the United States would have been much more difficult.

Back in the late 1940's and 1950's, this similar type of effort to get the internal US domestic problems of racial discrimination not to be looked at only as a civil rights issue under the Constitution, but as a human rights issue on the international plane was an important effort of the NAACP. Of course, Southern representatives (for the most part democrats) worked their tales off to make sure the US did not join such treaties not out of some noble vision of US Constitutional superiority, but because they wanted to preserve the subjugation of blacks in the "Southern way of life."

Of course, we also can think about the Helsinki process and the 1975 Final Act there that influenced Eastern bloc countries. That helped pave the way for labor rights and other types of rights having to be discussed and the protection of dissidents (or raising awareness of them).

So I certainly doubt that Americans are duped when they enter these treaties. What I think is more likely is that US Senators have little experience with international law and, as most US lawyers, are trained in terms of US foreign relations law. They may be surprised that the US interpretation is not the only one and that other states resist just adopting the US foreign relations law interpretation of the treaty obligation.

Best,
Ben
4.14.2009 8:06pm
Tony Tutins (mail):
I think we tried to have things both ways in 2000, when Clinton signed a child soldiers treaty, the "Optional Protocol to the Convention on the Rights of the Child,"

The Treaty raises the age for conscription and participation in conflict to 18 from the previous international standard of 15 and requires governments to take "all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities." As a concession to the US and the UK, the agreement does allow government armies to recruit children as young as 16 with parental consent.

Now, several of my Vietnam Era friends got their parents' approval to join the Marines when they were 17. Unsurprisingly, the Marines put them in combat as soon as they could. My father joined the Army on his 17th birthday. He was carrying an M-1 in Korea a short while later. I don't know if anyone tried to figure out the effect of this Protocol on how the Army and Marines manage their personnel before Clinton signed it.
4.14.2009 8:12pm
martinned (mail) (www):
@Tony Tutins: The Dutch got in trouble with that treaty as well, since they also recruit 16- and 17-year olds. But how hard is it to keep under-18 soldiers away from the battlefield? That can't be a great administrative burden...
4.14.2009 8:20pm
fishbane (mail):
An interesting comparison here is to the entertainment industry lobby. They have a history of pushing for stronger transnational IP protections, and then turning and pushing U.S. legislators to "catch up" or surpass, creating a rachet effect of ever longer IP protections.

I question whether Koh subscribes to such a strategy, but at least with certain narrowly focused interests, it does work.
4.14.2009 8:24pm
Richard Aubrey (mail):
A Brit once characterized the UK's surrender of sovereignty to the EU as having four stages;

1. Denial. Such a thing is absurd. Shows you what loons our opponents are.

2. We have a veto. We'd use it.

3. It's not as bad our opponents make it out to be.

4. Too late, old man. Nothing to be done about it now.

AKA known as "slippery slope."

The implication is that the proponents have this sequence in mind, planned out.

No different here.

The only thing that might stop it is anger from the citizens, since these things, by design, can no longer be corrected by political activity.
So if you are interested in this stuff, make your signature as illegible as possible.
4.14.2009 8:35pm
martinned (mail) (www):
@Richard Aubrey: Yes, that story gets around. Unfortunately, the timeline isn't even approximately right.

1963: Van Gend &Loos
1964: Costa v. ENEL
1973: The UK join the EU.

By the time the UK joined the EEC, the doctrine of supremacy/primacy had been well established for 10 years. They knew exactly what they were getting into, and they did pretty well for themselves as a result.
4.14.2009 8:43pm
Dan Simon (mail) (www):
How does this "slippery slope" distinguish international law from domestic legislation? Lots of laws take on a life of their own at the hands of activist judges or bureaucrats. The Civil Rights Act, for instance, contains explicit language reassuring doubters that it in no way would ever require racial quotas. Later, of course, the Act was reinterpreted as doing exactly that.

One could argue, of course, that treaties are harder to amend than domestic legislation. But in cases where the wording of a law or treaty is in any event simply a launching point for an activist judiciary's or executive's imagination, then the power to amend is of precious little practical use.
4.14.2009 9:07pm
Richard Aubrey (mail):
martinned,
The Brit in question was referring to later issues, such as promises never to switch to metric--and not so long ago, we had "the metric martyr".

Dan Simon.
So you're saying their promises can never be trusted? Seems about right.
4.14.2009 9:21pm
martinned (mail) (www):
@Richard Aubrey: So we agree that the Brits were on notice in 1973 that they were getting involved in something entirely unprecedented?

And, BTW, this switch to metric thing is a myth, in the sense that it is not actually required by EU law, only by UK law. To be precise, Directive 80/181 requires only metric, but the transition period lasts until the end of 2009, and has just been extended indefinitely.

As far as EU law is concerned, anyone is free to label in whatever unit of measurement they please, as long as they also include a translation to the metric system. This is how the law has been since 1980, at least. (The amending directive hasn't been published in the Official Journal yet, but this is what it will look like.)
4.14.2009 9:34pm
frankcross (mail):
Dan Simon is right, there is a natural tendency for rights to expand. This is obvious from the American history of the Bill of Rights. Ferejohn has an article on rights logrolling giving some theory. It's a reasonable debate, though I would expect a libertarian to be favorably inclined to the process.
4.14.2009 9:42pm
theculturedredneck (mail):
one solution that might come in handy if a state is concerned about a limited portion of the treaty might be to file a reservation pursuant to art 19 of the VCLT. the reservation could contain interpretive or choice-of-law language to mitigate future abuse. the shortcoming is that the ratifying state probably won't be able to anticipate the nature of future controversies with so narrow a tool.
4.14.2009 9:45pm
Richard Aubrey (mail):
martinned.
Nice but there's the problem that the Brits were told it wouldn't apply to them in any creeping, slow, measured way whatsoever.
So they feel betrayed.
My suggestion is that those who support such betrayals stay away from lamp posts. Sometimes people who are betrayed and find their treasured democracy to be absolutely useless, while their betters characterize them as fools, might lose it.
I don't say it's a good idea, but there are a lot of things I think of as bad ideas which, nevertheless, happen.
4.14.2009 9:46pm
Jon Rowe (mail) (www):
Even though I have an LLM in transnational law, I've let that area of my expertise slip a bit. But, given all the study I've done on the American Founding in the meantime, I think you could argue the the Founding itself was a bait &switch Enlightenment project (whether it was consciously designed that way or just turned out to be that way, who knows?).

Liberty and Equality, central to the ideals of the American Founding, turned out a whole lot different than most of the population at large expected. Though, they got a taste at the French Revolution (which by the way most FFs and the population at large STRONGLY SUPPORTED at the very beginning before things started to go wrong) than Liberty and Equality might not turn out how you expect.
4.14.2009 9:49pm
Dilan Esper (mail) (www):
It's a danger with all laws.

As I once pointed out in a discussion thread here, the proponents of Prop. 209 in California disclaimed any intention to affect minority outreach programs during the campaign, and then successfully persuaded the California Supreme Court to invalidate them after the election was over.

I don't see why it is a PARTICULAR danger with human rights treaties though.
4.14.2009 10:11pm
Richard Aubrey (mail):
Just for jollies, look for "metric martyr". Prosecuted and fined for selling fruits and veggis in imperial quantities.
The citizenry had been told that would never happen.
"You effed up. You trusted us."
4.14.2009 11:11pm
PQuincy1:
INAL, but I also see two distinct issues here: (1) the propensity for the text of a legal agreement or statute, any agreement or statute, to grow and take on interpretive consequences not envisioned by those originally agreeing on that text as authoritative. Trust me, this is nothing new. My research looks at such processes in the 16th and 17th century, and it's fascinating to see it at work, and the HOW of it. (Reference available on request!) As such, it has little to do with the red herring of: international/transnational/treaty law vs. good ole' US law.

But the other issue is this: law within a polity usually has some final arbiter, political or judicial. This may not be a 'supreme' court; it may be a Parliament, or the King, or the federal diet. But when push comes to shove over interpretations, especially those that are not simply connected to the obvious literal meaning of the text, someone can bring about a resolution (though this can take a century or two, as in much of my research.)

But modern transnational law, as I understand it, and classical treaty law for sure, is scarce in such final arbiters. A treaty is 'binding', but what it means, exactly, is usually subject to debate after it's ratified by all parties, and such debates are routinely intractable because there is no final arbiter. I think of the long-running debates in international law about boundaries: neither party to a boundary dispute, in most cases, recognizes any 'super-sovereign' who could resolve it definitively, meaning that such disputes tend to linger on forever.

This, it seems, applies to much of the treaty law -- and certainly to the practical extension of treaty law -- that the opening post invokes. I'm not saying the problem is not real; laws' meanings and application do evolve, often in unexpected ways, without changes in text. But lacking any sovereign to impose such new interpretations, they are not likely to have the pernicious effects predicted for US treaties on various issues. (An interesting partial exception is the WTO machinery, which licenses retaliation when a party refuses to accept the outcome of litigation/arbitration. (That is SUCH a fifteenth-century solution, by the way...anyone interested should look into the Gruber Fehde, analyzed by Andreas Widmer.)
4.15.2009 12:01am
martinned (mail) (www):

Just for jollies, look for "metric martyr". Prosecuted and fined for selling fruits and veggis in imperial quantities.

Can you not read? This story has nothing to do with EU law.
4.15.2009 5:40am
K:
I suggest the US begin to negotiate time limit provisions into every treaty we sign.

A time limit would hardly solve every problem but it might work better than no time limit.

Something like this:

"This treaty will be in force for three years after ratification. After that the Senate must approve any continuation every five years."

Perpetual treaties simply make little sense to me. We can change statutes and amend our own Constitution. Why should we not also have clear ways of withdrawing from a treaty if unforeseen and unpleasant experience tells us we have made a mistake?

Other signers would have the same right we give ourself.

I don't sense any scarcity of laws or government in my life. It seems like there is plenty here already.

Strengthening and expanding international legal agencies or accepting oodles of innocent sounding details in pleasantly titled treaties is really just building more government. Be sure that is what you want.
4.15.2009 6:12am
martinned (mail) (www):

Why should we not also have clear ways of withdrawing from a treaty if unforeseen and unpleasant experience tells us we have made a mistake?


Vienna Convention on the Law of Treaties:

SECTION 3. TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES

Article 54
Termination of or withdrawal from a treaty under its provisions or by consent of the parties
The termination of a treaty or the withdrawal of a party may take place:
(a) in conformity with the provisions of the treaty; or
(b) at any time by consent of all the parties after consultation with the other contracting States.

Article 55
Reduction of the parties to a multilateral treaty below the
number necessary for its entry into force
Unless the treaty otherwise provides, a multilateral treaty does not terminate by reason only of the fact that the number of the parties falls below the number necessary for its entry into force.

Article 56
Denunciation of or withdrawal from a treaty containing no
provision regarding termination, denunciation or withdrawal
1.A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:
(a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or
(b) a right of denunciation or withdrawal may be implied by the nature of the treaty.
2.A party shall give not less than twelve months’ notice of its intention to denounce or withdraw from a treaty under paragraph 1.

Article 57
Suspension of the operation of a treaty under its provisions or by consent of the parties
The operation of a treaty in regard to all the parties or to a particular party may be suspended:
(a) in conformity with the provisions of the treaty; or
(b) at any time by consent of all the parties after consultation with the other contracting States.

Article 58
Suspension of the operation of a multilateral treaty by
agreement between certain of the parties only
1.Two or more parties to a multilateral treaty may conclude an agreement to suspend the operation of provisions of the treaty, temporarily and as between themselves alone, if:
(a) the possibility of such a suspension is provided for by the treaty; or
(b) the suspension in question is not prohibited by the treaty and:
(i) does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their obligations;
(ii) is not incompatible with the object and purpose of the treaty.
2.Unless in a case falling under paragraph 1 (a) the treaty otherwise provides, the parties in question shall notify the other parties of their intention to conclude the agreement and of those provisions of the treaty the operation of which they intend to suspend.

Article 59
Termination or suspension of the operation of a treaty
implied by conclusion of a later treaty
1.A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating to the same subject matter and:
(a) it appears from the later treaty or is otherwise established that the parties intended that the matter
should be governed by that treaty; or
(b) the provisions of the later treaty are so far incompatible with those of the earlier one that the two
treaties are not capable of being applied at the same time.
2.The earlier treaty shall be considered as only suspended in operation if it appears from the later treaty or is otherwise established that such was the intention of the parties.

Article 60
Termination or suspension of the operation of a treaty
as a consequence of its breach
1.A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.
2.A material breach of a multilateral treaty by one of the parties entitles:
(a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either:
(i) in the relations between themselves and the defaulting State; or
(ii) as between all the parties;
(b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State;
(c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.
3.A material breach of a treaty, for the purposes of this article, consists in:
(a) a repudiation of the treaty not sanctioned by the present Convention; or
(b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.
4.The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach.
5.Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.

Article 61
Supervening impossibility of performance
1.A party may invoke the impossibility of performing a treaty as a ground for terminating or withdrawing from it if the impossibility results from the permanent disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may be invoked only as a ground for suspending the operation of the treaty.
2. Impossibility of performance may not be invoked by a party as a ground for terminating, withdrawing from or suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

Article 62
Fundamental change of circumstances
1.A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:
(a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and
(b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.
2.A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:
(a) if the treaty establishes a boundary; or
(b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.
3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.

Article 63
Severance of diplomatic or consular relations
The severance of diplomatic or consular relations between parties to a treaty does not affect the legal relations established between them by the treaty except insofar as the existence of diplomatic or consular relations is indispensable for the application of the treaty.

Article 64
Emergence of a new peremptory norm of general international law (“jus cogens”)
If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates.

Treaties have traditionally been viewed as contracts between states, which is why the rule of pacta sunt servanda applies to treaties just like it does to contracts. In practice though, most treaties that one would want to get out of contain withdrawal clauses (Cf. ABM Treaty). The ones that don't are usally the ones one could simply ignore if one were so inclined.
4.15.2009 6:33am
K:
That was sure fast martinned. Thanks for the information.

I wasn't saying treaties never have explicit provisions for termination.

It would have been better if I had said it thus:

"Why shouldn't treaties expire automatically at a stated time? Let them expire if there seems merit in extending them."

That would be a pretty definitive way of unilaterally escaping from bad, or just plain ineffective, agreements without rancor.

No need for diplomatic explanations or debates with the other signers about why we don't like them anymore or why they don't like us. Just say the Senate did not renew. End of story.

Of course if our Senate is working too hard to take on another duty then I withdraw the suggestion.
4.15.2009 7:23am
Public_Defender (mail):
You see this all the time with statutes and ballot measures. Left and right are pretty much equally guilty.

Before passage:

Supporters: This is narrow, it doesn't really do much.
Opponents: This is very broad, it does a lot.


After passage:

Supporters: This is very broad, it does a lot.
Opponents: This is narrow, it doesn't really do much.
4.15.2009 7:29am
martinned (mail) (www):
@K: I guess the problem with sunset clauses, or at least short term sunset clauses (you were talking about three years before) is that it causes too much legal uncertainty. Treaties like the WTO treaty need long time horizons, so that citizens can trust that the WTO will still be there in ten years time. I would say that this logic applies to all treaties that directly affect citizens, which means most of the really important treaties.

For many other treaties, the problem is one of commitment. Because there is no real possibility of enforcement of obligations in international law, treaties only work if the parties trust each other to keep their promises. Assuming both parties benefit from the treaty (otherwise, why write it?), they will want to do their best to emphasise how much they intend to keep their promise. Putting in a sunset clause sends the opposite message, because it says something like "Well, we don't really care about this treaty very much. It's ok for now, but let's look at it again in a few years time..." I would say that's not the kind of message you would want to be sending in a Treaty context.

That said, I would certainly agree with you that it would be good to write longer sunset clauses in at least some treaties. Let's say 20 years or so. My personal favourite is how the Bank of International Settlements, which was created to help Germany pay its reparations after WW I, still exists, and has branched out into banking regulation.
4.15.2009 7:38am
Richard Aubrey (mail):
martinned.
The point is--YMAL (you must be a lawyer to keep missing the point so often)--that the British people are being told they are not surrendering their sovereignty, their culture, or their identity to the 'crats in Brussels.
Then it turns out the government betrays them.
It really doesn't matter if the metric issue is a matter of EU law or tranzie fantasies among the 'crats. Doesn't matter.
The point is, British people are feeling betrayed because...they are being betrayed.
And the sequence of official response to such betrayals is characterized in the four-part sequence I described.
Which in the US we call the slippery slope on a given issue.
Same thing. Deliberate betrayal under cover of lies.
4.15.2009 7:40am
martinned (mail) (www):
@Richard Aubrey: And my point is that a) The British people were on notice that they were getting involved in something completely new, since at that point it had existed for 20 years and had produced statements like this:


"BY CONTRAST WITH ORDINARY INTERNATIONAL TREATIES, THE EEC TREATY HAS CREATED ITS OWN LEGAL SYSTEM WHICH, ON THE ENTRY INTO FORCE OF THE TREATY, BECAME AN INTEGRAL PART OF THE LEGAL SYSTEMS OF THE MEMBER STATES AND WHICH THEIR COURTS ARE BOUND TO APPLY .

BY CREATING A COMMUNITY OF UNLIMITED DURATION, HAVING ITS OWN INSTITUTIONS, ITS OWN PERSONALITY, ITS OWN LEGAL CAPACITY AND CAPACITY OF REPRESENTATION ON THE INTERNATIONAL PLANE AND, MORE PARTICULARLY, REAL POWERS STEMMING FROM A LIMITATION OF SOVEREIGNTY OR A TRANSFER OF POWERS FROM THE STATES TO THE COMMUNITY, THE MEMBER STATES HAVE LIMITED THEIR SOVEREIGN RIGHTS, ALBEIT WITHIN LIMITED FIELDS, AND HAVE THUS CREATED A BODY OF LAW WHICH BINDS BOTH THEIR NATIONALS AND THEMSELVES."

(Sorry for the capital letters, that's how those old rulings are published.)
The quote is from Costa v. ENEL. If the British public did not realise that, whose fault is that? The government at the time should have informed them (I have no idea whether they did, I'm not that old), the press should have informed them (dito) and they should have informed themselves. But surely this is not a case of slipping slope. The fact that this slop was going to slip was written into the system from the beginning. After all, the very first line on the very first page of the Treaty says that the signatories were "DETERMINED to lay the foundations of an ever closer union among the peoples of Europe,"

b) my point is that it is not helpful to use Eurosceptic scare stories to illustrate your position unless those scare stories actually have a basis in fact.
4.15.2009 8:06am
pireader (mail):
Professor Volokh wrote-- this is indeed a potential danger with a range of "human rights" treaties

Treaties of that kind have been around since the 1940s, at least. Can you point to examples where such treaties have harmed--actually harmed--substantial American interests?

Because without such real-life examples after 60 - 70 years, this would look suspiciously like an ideological bogeyman.
4.15.2009 8:48am
sdfsdf (mail):
I don't know this area, so I am diffidently suggesting that some expert tell us, but have the various Geneva conventions been a bait-and-switch? We sign a treaty purporting not to apply to treatment of non-signatories, and the US courts start saying it applies to non-signatories. But I might be wrong.
4.15.2009 8:57am
PQuincy1:
Thanks to Martinned for the details from the Vienna Convention. It's a fascinating piece of meta-law: that is, it purports to regulate the details of how treaty law works, and is itself written in legal language, but it does not seem to be either constitutional or statutory in the conventional sense, but rather, exactly, a piece of the 'law of nations': it creates or regulates voluntary and limited jurisdiction that is essentially 'arbitrational' (remembering that 'arbitrary' when applied to law essentially refers to the voluntary element ('arbitrio') in such law (cf. Ebel's work on Willkür)).

I'm interested in the enforcement framework for such an instrument, which apparently attempts to codify and clarify much of the traditional law of nations. That is, if a signatory of some treaty chooses to interpret a provision of that treaty in a narrow or limited way, and if its co-signatories disagree and refer to the Vienna Convention, then what? Is the Vienna Convention any more enforceable on interpretations of treaties than the treaties themselves, or are both equally part of the law of nations which is ultimately a matter of general principle -- pacta servanda sunt -- and common law of nations, not of binding judgment?

Again, I see the "creeping interpretation" issue as a genuine one for both statutory and constitutional law in general, but find the assertion that it is a particular problem in international law, and likely to subject the United States to foreign countries' judgment of what our treaties oblige the United States to in internal affairs, unconvincing. International law is where this process is likely to be least important. There is no international Supreme Court to bindingly define the 'meaning' of treaty law in ways that some find to be 'legislating from the bench', after all.
4.15.2009 9:46am
no comment:
I am not taking a position on whether this strategy works, or whether it is a good or bad thing, just sharing an experience. In law school I took an "International Human Rights" class which mostly consisted of planning strategies to impose a positive rights legal framework on the United States through the interpretation of international treaties. Sometimes this involved creative and broad interpretations of treaties and sometimes it merely involved getting the US under some of the more specific treaties out there.

Just because it has not happened yet does not make it a "bogeyman". People on one side of this issue are certainly trying and it's too early to tell how things will go for them.
4.15.2009 10:04am
martinned (mail) (www):
@PQuincy1: Most of the Vienna Convention on the Law of Treaties (annoyingly, there are also other Vienna Conventions) is of the nature of backstop. It lays down rules that could have been written into every single treaty, but that are more conveniently laid down in a single instrument, to apply unless the treaty says otherwise. That goes for most of the provisions that I quoted above.

That does not go for interpretation, of course. Here is what the Convention says about interpretation:


SECTION 3. INTERPRETATION OF TREATIES
Article 31
General rule of interpretation
1.A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2.The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.
3.There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the parties.
4.A special meaning shall be given to a term if it is established that the parties so intended.

Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.

As noted previously, this amounts to a rule that is more legalistic than previous practice.
The extent to which this matters in the national context depends first of all - as with all treaties - on whether treaties made directly bind the courts. In the UK, that is not the case, meaning that courts only follow the common law and statutes such as the 1978 Interpretation Act.

Where treaties are capable of having direct effect, these rules on interpretation are of course extremely vague. As a result, I cannot imagine that they will have any noticeable effect on court rulings. What they do accomplish, though, is to form a framework for discussion, both between parties in a court case, and between states in case of a disagreement.

Enough of an answer?
4.15.2009 10:15am
Richard Aubrey (mail):
martinned.
Yeah, the government and the media "should" have informed the public.
The public seems to have been uninformed. Something missing there, which is the four-part sequence. Starting with "That's nuts. It will never happen. What loons our opponents are." Sounds like misinforming to me.
And, as I say, you keep missing the point. The issue is the British people are feeling betrayed because they are being betrayed and there's nothing they can do about it. Whether it's directly tied into EU law or some other legal issue, or merely tranzi fantasies among local 'crats is a lesser point. In fact, it's not a point at all.
However, wrt the metric issue, the government was quite clear that they wouldn't enforce it. So said a number of folks when the veggie guy got arrested. The government lied.
I guess that's step two and three.
They're in step four now.
4.15.2009 10:15am
martinned (mail) (www):
@no comment: Help me out, please. English is not my first language. What do you mean by a "positive rights legal framework" and how is that different from the framework established by the Bill of Rights?
4.15.2009 10:16am
martinned (mail) (www):
@Richard Aubrey: In 1973, there was a referendum. These days, there are plenty of Eurosceptic politicians who are promising to curtail the power of Brussels. So what exactly do you have in mind when you say that "there's nothing they can do about it"? Thatcher promised to "get back our money" and she did. What's the problem?
4.15.2009 10:18am
Gabriel McCall (mail):
All of these arguments and issues have clear example in the history of the US, if we consider the Constitution as a treaty between the several States.


To be sure, we could say "We signed on to the treaty's text, not its interpretations."


We could say that, but we'd be blatant hypocrites if we did. The states signed onto the Constitution's text, not its interpretations... I wonder what the international version of Wickard v Filburn will be?
4.15.2009 10:20am
martinned (mail) (www):
@Gabriel McCall: Not exactly. The states of the United States signed on to a treaty that included a court system. As I wrote above, referring to the ECHR and the EU, having a court attached to a treaty means that a supranational body of interpretation will emerge. If I'm not mistaken, the Articles of Confederation had no (con)federal judiciary, meaning that each state would have had more freedom to interpret certain language itself.
4.15.2009 10:25am
A.C.:
martinned --

"Negative rights" and "positive rights" correspond roughly to "first-generation human rights" and later generations.

In the first category, you have restraints on government action -- things the government is prevented from doing, like controlling the press, forcing everyone to follow the same religion, or taking property away from political opponents to give it to political supporters. This is Bill of Rights stuff.

In the second category, you have services the government is obliged to provide -- mostly social benefits like housing and health care, but increasingly things like environmental protection and cultural access.

Putting the US into a "positive rights" framework would mean establishing things like housing and health care as human rights, rather than as issues to be debated in the ordinary political framework of interests and costs.
4.15.2009 10:56am
Seamus (mail):

You see this all the time with statutes and ballot measures. Left and right are pretty much equally guilty.

Before passage:


Supporters: This is narrow, it doesn't really do much.
Opponents: This is very broad, it does a lot.



After passage:


Supporters: This is very broad, it does a lot.
Opponents: This is narrow, it doesn't really do much.



This isn't a case of inconsistency on the part of the opponents. This is a case of opponents raising a lot of concerns, of proponents responding that the concerns are unwarranted, the proponents winning on the strength of those assurances, and the opponents trying to hold the winners to their pre-victory representations.

IOW, the proponents, having won, should be estopped from pushing the broad interpretation. The opponents, having lost, are under no such obligation.
4.15.2009 11:24am
martinned (mail) (www):
@A.C.: Ah, OK, I knew that. I was just confused by the notion of positive law.

Generally, I'd say that such social and economic rights aren't very interesting. My country has them in the constitution, but no one ever mentions them, much less sues over them. That said, I'd recommend this post on Prawfs yesterday, which outlines the approach used by the courts in South Africa, who seem to strike a pretty reasonable balance.
4.15.2009 11:42am
A.C.:
Ah, but you know that the minute the US started down the path of talking about economic rights, somebody WOULD sue. We're like that over here.

Wasn't there a movement (in the US) towards suing over welfare rights, perhaps some time in the 70s? I have a dim memory of this, but no details. Although it's not really on topic. Perhaps another discussion elsewhere?
4.15.2009 11:50am
Blue:

And, BTW, this switch to metric thing is a myth, in the sense that it is not actually required by EU law, only by UK law. To be precise, Directive 80/181 requires only metric, but the transition period lasts until the end of 2009, and has just been extended indefinitely.


I don't think the word "myth" means what you think it means....
4.15.2009 11:54am
martinned (mail) (www):
@A.C.: Which is why I don't think such rights fit in the US legal system.

@Blue: Read on, please... As I wrote, the full body of EU law does not now, nor did it ever, require that only metric be used.

Even though I feel I've already copy/pasted way too much law in this thread, I guess it is still necessary.

Directive 80/181:


Article 1
The legal units of measurement within the meaning of this Directive which must be used for expressing quantities shall be: (a) those listed in Chapter I of the Annex; (...)
(c) those listed in Chapter III of the Annex only in those Member States where they were authorized on 21 April 1973 and until a date to be fixed by those Member States ; this date may not be later than a date to be set by the Council before 31 December 1989 on the basis of Article 100 of the Treaty.

Article 3
2. The use of supplementary indications shall be authorized until 31 December 1989.
(...)
5. The use of supplementary indications may be extended after 31 December 1989.


Directive 89/617:
Article 1


Directive 80/181/EEC is hereby amended as follows:
1. In Article 1, points (b) and (c) shall be replaced by the following:
'(b) those listed in Chapter II of the Annex only in those Member States where they were authorized on 21 April 1973 and until a date to be fixed by those States;
(c) those listed in Chapter III of the Annex only in those Member States where they were authorized on 21 April 1973 and until a date to be fixed by those States. This date may not be later than 31 December 1994;
(d) those listed in Chapter IV of the Annex only in those Member States where they were authorized on 21 April 1973 and until a date to be fixed by those States. This date may not be later than 31 December 1999.'

2. In Article 3:
- in paragraph 2, '31 December 1989' shall be replaced by '31 December 1999';
- paragraph 5 shall be deleted.


Directive 1999/103:

Article 1
Directive 80/181/EEC is hereby amended as follows:
1. In Article 3(2), ‘31 December 1999’ shall be replaced by ‘31 December 2009’.
2. The following Article shall be added:
‘Article 6a
Issues concerning the implementation of this Directive and, in particular, the matter of supplementary indications shall be further examined, and if necessary the appropriate measures adopted in accordance with the procedure referred to in Article 18 of Council Directive 71/316/EEC (*).


And most recently, the not yet numbered directive agreed in December last year:

Article 1
Amendments
Directive 80/181/EEC is hereby amended as follows:
(1) Article 1(b) shall be replaced by the following:
"(b) those listed in Chapter II of the Annex only in those Member States where they were authorised on 21 April 1973.";
(2) Article 2(a) shall be replaced by the following:
"(a) The obligations arising under Article 1 relate to measuring instruments used, measurements made and indications of quantity expressed in units of measurement.";
(3) Article 3(2) shall be replaced by the following:
"2. The use of supplementary indications shall be authorised.";
(4) the following Article shall be inserted:
"Article 6b
The Commission shall monitor market developments relating to this Directive and its implementation with regard to the smooth functioning of the internal market and international trade and shall submit a report on those developments, accompanied by proposals where appropriate, to the European Parliament and to the Council by 31 December 2019.";


So yes, myth.
4.15.2009 12:24pm
JRL:
no comment:
That was my experience, too, in my International Human Rights class. After a few weeks of discussions about the right to work, the right to housing, the right to vacation, the right to unemployment insurance, etc., I threw up my hands and had to ask "what exactly are 'human rights'?" I thought they were things like freedom of religion and freedom of speech. But we never talked about those.
4.15.2009 12:28pm
Blue:
Um, martin, again, I don't think you understand what the word "myth" means.
4.15.2009 12:41pm
Richard Aubrey (mail):
martinned.
One of the 'crats involved in the metric martyr case referred to the metric system and the Continent and said the the Imperial system belonged to an age which had gone.
IOW, trying to get on board with the Euros. For practical reasons, for political reasons, for reasons of personal ideology.
Your citing voluminous laws and regs is nice, but it only serves--no doubt deliberately--to cover up what actually happened, happens, and will happen.
If the law doesn't require it but the pushy tranzi officials in the UK want to do it in order to be on board with Europe, your cites are meaningless.
4.15.2009 12:53pm
martinned (mail) (www):
@Richard Aubrey: In other words, what you're saying is that one should never let the truth get in the way of a good story...
4.15.2009 12:56pm
Blue:
Martin, you are claiming something is a myth where, by your own admission and posting, there is black letter law that requires it.

Even if that law has been modified it is clearly not a "myth."
4.15.2009 1:09pm
martinned (mail) (www):
@Blue: No, the law has never required it. It has only announced that at some date in the future it would, and that date has been constantly pushed back, and has now been abolished altogether.
4.15.2009 1:12pm
martinned (mail) (www):
O, and as a follow up, why has this metric-only idea been abandoned? Because both Europe and the UK are democracies, and metric-only is extremely unpopular in the UK and serves very little useful purpose.

(Even though these days metric is much more common than imperial in the UK, on the grounds that it makes the production process easier. Milk, for example, is labelled most prominently in pints, but a 2 pint carton of milk actually contains a litre, because it is the exact same carton that is used in the rest of Europe, only with a different label.)
4.15.2009 1:15pm
Tony Tutins (mail):

how hard is it to keep under-18 soldiers away from the battlefield?

I was hoping a Marine would have jumped in here, but I will try to answer: The Marines want trained seventeen-year olds in combat. They are aggressive, fearless, and eager to prove themselves. Requiring them to, say, stack boxes for a year would lead to frustration and discontent.

We sign a treaty purporting not to apply to treatment of non-signatories, and the US courts start saying it applies to non-signatories.

This mischaracterizes the applicability of the Geneva Conventions. Treaties that we ratify limit our behavior, not the behavior of others. Only states can sign, ratify or accede to the Geneva Conventions -- the attempt of Palestine to do so is up in the air because its statehood is uncertain. The home countries of the members of, say al-Qaeda, have all ratified or acceded to the treaty (Saudi Arabia, Afghanistan, Syria, Lebanon, etc. etc.)

Milk, for example, is labelled most prominently in pints, but a 2 pint carton of milk actually contains a litre

Then the UK milk consumer is being shortchanged, because two pints equals one Imperial quart, which is 1.1365 litres
4.15.2009 2:15pm
martinned (mail) (www):

Then the UK milk consumer is being shortchanged, because two pints equals one Imperial quart, which is 1.1365 litres.

I'm not sure how they handle that from a truth in labelling point of view. Anyway, for an example of the fun that is to be had with a mix of metric and imperial, see here.

Here's a whole (pro-metric) blog devoted to the issue.
4.15.2009 2:21pm
Richard Aubrey (mail):
martinned.
Wrong again. You can quote cites all you wish. But when what actually happens is something different, your work is meaningless.
You are trying to put over the nonsense that if it's in the law, it's what happens in the real world, despite the clear fact that something else entirely is happening in the real world. But if you can find a cite, it's not happening.

Whether metric is more efficient is not the point. The UK citizens wanted to keep the imperial system and the government betrayed them.

Now, there is a way to handle it.

Years ago, the US and Canada agreed to go metric. The Canadians, where Loyalists fled during the revo, went compliantly along with the program, while the US, where the Loyalists and their go-along views were considerably rarer, ignored it until it went away. We still do the English system.

Problem is, apparently, that in a nanny state like the UK, they will hammer you for something like that.
4.15.2009 2:37pm
martinned (mail) (www):
@Richard Aubrey: I have a better idea. Why don't we simply agree that this whole metric thing is way, way, way off-topic. The first time you mentioned it, it was a good example, just like the EU is generally a pretty good example of what prof. Volokh was talking about. That is why I responded to your comments. But as a (legal) problem in itself, the metric thing is completely uninteresting and off-topic.
4.15.2009 2:41pm
Richard Aubrey (mail):
martinned.
You're right about it being a good example of governments betraying the citizens, even lying about their intent from the get-go.
I suppose the whole idea won't apply to treaties, though. Right?
4.15.2009 2:53pm
PQuincy1:
martinned -- thanks, once again, for guiding me quickly to rather interesting reading. The inevitability of hermeneutics -- "in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context" -- remains. I think it was a loss to lawyers in Europe when the utriusque legis requirement was dropped there, and loss to Anglo-American lawyers that post-Reformation polemics required them to suppress the canon law (and thus, theological) foundations of their practices of legal interpretation ;-)
4.15.2009 4:14pm
martinned (mail) (www):
@PQuincy1: Actually, my Dutch law degree translates into English as Master of Laws, as in: plural. This goes back to when law students were expected to study both Roman and Canon law. I'm afraid though that I only studied Roman law in my 1L Legal History class, which didn't give more than a cursory glance at Canon law.

Remind me, what is the connection between Canon Law and the Law of Equity? I know they started out with a pretty close connection, through the person of the Lord Chancellor, but IIRC they drifted apart quite quickly.
4.15.2009 4:42pm
martinned (mail) (www):
P.S., Obviously LL.M. stands for legis magister, which is also a plural. Hence the double L.
4.15.2009 4:43pm
K:
martinnned re: your 7:48 and sunset provisions.

First, thanks for graciously overlooking the fact that I omitted the important word "not" from my message. You knew what I meant.

I generally agree with your reply. Having a sunset provision in every agreement would not necessarily be good. I regard it as a tool we should use more often but not always.

The topic was bait and switch. But I PQuincy1's term "meta-law" better describes my interestts in international law, treaties, and dare I say it, "meta-governments".

We have the label NGO for entities that are Non-government. Maybe we need QGO to describe quasi-goverment entities. Or call them EGOs, emerging government entities trying to gain clout.

The levels of complexity and obligations steadily pile up. Often the response is to create yet another level of meta-government and/or meta-law to referee the quarrels of the lower levels.

Sooner or later I expect an international court to overrule a UN Security Council resolution. After all, it is not hard to argue that the UN sometimes seems to violate its own charter. I wonder how the UN will respond?

Well, this isn't my field. At best I maintain a moderate interest in international agreements. And have nothing to say about bait and switch.

Adios.
4.15.2009 5:03pm
martinned (mail) (www):
@K: A word already exists: Quango.


Sooner or later I expect an international court to overrule a UN Security Council resolution. After all, it is not hard to argue that the UN sometimes seems to violate its own charter.

A court already did. Allow me to present ECJ case C-402/05 P, Yassin Abdullah Kadi v. Council and Commission. I still think it is wrong, but it is binding law all the same. The ECJ ruled that the Security Council's Sanction List, which lists the individuals and organisations whose assets have been frozen, violates the right to a fair trial (= due process). The UNSC already relaxed the procedure, allowing for people on the list to petition to have their name taken off, but it still requires a unanimous vote in the Sanction Committee, which consists of the same members as the Security Council, to be taken off. Once your on the list, any one UNSC member can block your delisting. The ECJ ruled that that was a violation of mr. Kadi's rights, so it forced the EU to unfreeze his assets.

For more on this, including an explanation of what I think is wrong with this ruling, in earlier Volokh Conspiracy threads here and here. The importance of this ruling can be gleaned, inter alia, from the fact that prof. Posner jr. referred to the case in his analysis of the Koh case earlier this month.
4.15.2009 5:19pm
trad and anon (mail):
Doesn't this happen all the time?

Opponents: This constitutional amendment would ban employee domestic partner benefits!
Supporters: Don't be absurd. It would just ban same-sex marriage and civil unions. There's no way it could be read to prohibit domestic partner benefits for employees.

Then:

Supporters: These domestic partner benefits are unconstitutional!
Opponents: No, this amendment just prohibits same-sex marriage and civil unions!

Or, alternatively:

Counsel for defendant: Your honor, striking down these anti-sodomy laws would require the courts to constitutionalize same-sex marriage.
Counsel for plaintiff: Of course not. Extending legal privileges to same-sex couples is a completely different issue from this criminal statute.

Then, in state court:

Counsel for plaintiff: The Supreme Court has recognized heightened protections for same-sex couples. You should follow that precedent in interpreting our state's constitution and strike down these discriminatory marriage laws.
Counsel for defendant: That case is completely inapplicable. The criminalization of certain private sexual relationships is completely different from same-sex marriage.

Rinse and repeat with. Is there any reason to think this happens with human rights treaties any more than with other statutes, regulations, and court decisions?
4.15.2009 8:22pm
trad and anon (mail):
That should be "Rinse and repeat with every other issue."
4.15.2009 8:24pm
Litigator-London:
Points to ponder:

There are still people like Richard Aubrey alive who really resent the change in our currency from pounds, shillings and pence (One pound = 20 shillings - 12 pence = 1 shilling) to the decimal 100 pence to one pound. But the need to add £12.17.4 to £19.9.11 just because we were at one time under Roman occupation never made much sense and neither does the retention of chains and yards, rod, poles and perches and other oddities of the old weights and measures.

Aubrey would probably also like to bring back hanging and flogging as judicial punishments, and require all judgments of our Courts to be written in Norman French.

However, on the serious point, at issue I would say that the experience of UK lawyers who have lived through the development of both EU and ECHR jurisprudence as impacting on domestic jurisprudence is that both had had very substantial impact which was probably not foreseen by the non lawyer political figures - for example with the importation of the concept of proportionality into administrative law, or the purposive approach to statutory construction.

I happen to think that our law has benefited thereby.
4.16.2009 10:24am
ReaderY:
As Professor Volokh has often pointed out, the approach is hardly limited to treaties. Nor has it been limited to legislation. Many a homebuyer, among many an emptor with insufficient caveat, has been stuck with a mortgage whose fine print contains provisions he or she was never told about or was told there was no need to worry about.
4.17.2009 1:56am
Richard Aubrey (mail):
L-i-L
Yup. Lawyer. Can tell. Lie like a rug and misrepresent another's position. In fact, you probably have an advanced degree.
As before, it may work when there are no witnesses to what I said.
But how does it work here? I never understood the math behind making yourself out to be a liar when the evidence that you're a liar is RIGHT THERE. Don't get it.
Anyway, to restate my point, the issue is that the government lied and betrayed the citizens. The issue--in this case, metric--is secondary.
As you know.
4.17.2009 12:36pm

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