Volume 37, Issue 2

Prospective Advice and Consent

Written by Jean Galbraith

The Treaty Clause of the Constitution gives the President the “Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”  In theory, treatymaking traditionally proceeds in three steps: First, the President or his agents negotiate and sign the treaty; second, the Senate gives its advice and consent by a two-thirds vote; and third, the President ratifies the treaty. In practice, however, the Senate has earned its reputation as the “graveyard of treaties.”  While minor treaties usually clear the Senate eventually, significant treaties—particularly multilateral ones—are often the subject of lengthy or endless delay. The Senate’s present backlog goes back decades (the oldest treaty pending before it is from 1949) and includes major treaties like the United Nations Convention on the Law of the Sea, the Convention on the Elimination of All Forms of Discrimination Against Women, and the Stockholm Convention on Persistent Organic Pollutants.

The specter of death in the Senate in turn limits U.S. bargaining power. If other nations believe that the United States will never become a party to a multilateral treaty under negotiation, then their incentives to listen to U.S. negotiators are greatly reduced. A former Legal Adviser to the State Department has recently described this as a “real problem in treaty negotiation,” explaining that “our negotiating partners have no confidence that the executive branch will necessarily be able to get a potentially controversial treaty through the Senate. That does undermine the negotiating effectiveness of our State Department and other negotiators.”
The Senate’s failure to advise and consent to important treaties has received substantial attention from academics over the last twenty years, including contributions from Bruce Ackerman, David Golove, Laurence Tribe, John Yoo, Peter Spiro, Steve Charnovitz, and, most recently, Oona Hathaway. But these scholars have all focused on one particular issue, namely, the extent to which treaties can or should be approved as congressional-executive agreements by a majority of both houses and the President rather than through the Treaty Clause.  Little has been written about whether the Treaty Clause itself could be applied in a more efficient or effective manner.  By contrast, this Article argues that the Treaty Clause provides the President and the Senate with considerably more flexibility than the conventional wisdom suggests—flexibility that can strengthen the prospects for treatymaking under the Treaty Clause.

The Senate’s failure to advise and consent to important treaties has received substantial attention from academics over the last twenty years, including contributions from Bruce Ackerman, David Golove, Laurence Tribe, John Yoo, Peter Spiro, Steve Charnovitz, and, most recently, Oona Hathaway. But these scholars have all focused on one particular issue, namely, the extent to which treaties can or should be approved as congressional-executive agreements by a majority of both houses and the President rather than through the Treaty Clause.  Little has been written about whether the Treaty Clause itself could be applied in a more efficient or effective manner.  By contrast, this Article argues that the Treaty Clause provides the President and the Senate with considerably more flexibility than the conventional wisdom suggests—flexibility that can strengthen the prospects for treatymaking under the Treaty Clause.

Specifically, I argue that the Senate can, and in many circumstances should, give its advice and consent prior to treaties’ final negotiation, an approach that I term prospective advice and consent. The Senate would give prospective advice and consent through the passage of a resolution that, by a two-thirds vote, authorizes the President to make a treaty or multiple treaties that conform to whatever conditions are set out in the resolution. Provided that the negotiated treaty or treaties then conform to these conditions, the President could ratify without further action by the Senate.

This approach would reverse the longstanding and almost entirely unquestioned presumption that the Senate’s advice and consent must follow the President’s submission of a final treaty text, an approach that I call subsequent advice and consent.  As I show, however, this presumption stems from historical practice rather than from a constitutional mandate. In the nineteenth century, this presumption made good sense: the United States entered into a sufficiently low number of international agreements that the Senate could reasonably take them up one by one; the most important agreements tended to be bilateral rather than multilateral, so renegotiation to accommodate Senate changes was more feasible; and the Senate had not then developed its practice of delaying certain treaties for decades. As the preconditions have changed, however, it is time—indeed long past time—to rethink how the Treaty Clause is applied. Prospective advice and consent could considerably improve the processing of minor treaties. For major multilateral treaties, the use of prospective advice and consent would be more challenging but also more rewarding. I argue that for many such treaties, prospective advice and consent pegged to key U.S. negotiating objectives would both further U.S. negotiating power and have greater appeal for the Senate than does the present regime of subsequent advice and consent.

Avoiding Adaptation Apartheid: Climate Change Adaptation and Human Rights Law

Written by Margaux J. Hall & David C. Weiss

There is now little doubt that humans will be forced to adapt to the impacts of a warming world. There is also little doubt that the poorest people in the poorest countries will bear most of the burden of adapting to climate consequences they had almost no role in creating.  As the United Nations Development Programme (UNDP) has explained, “In the Netherlands, people are investing in homes that can float on water. The Swiss Alpine ski industry is investing in artificial snow-making machines,” but “[i]n the Horn of Africa, ‘adaptation’ means that women and young girls walk further to collect water.”  In the Ganges and Mekong Deltas, “people are erecting bamboo flood shelters on stilts” and “planting mangroves to protect themselves against storm surges.” A final adaptation strategy in the Mekong? “[W]omen and children are being taught to swim.”

Despite these sobering realities, the question of whether climate change implicates human rights law at all has been relatively unexplored until recently.  In 2007, for example, the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (IPCC)—the primary report from the United Nations-chartered body responsible for reviewing and assessing information on climate change—scarcely mentioned human rights in nearly 3,000 pages of analysis.  However, multiple actors have begun to close this analytical gap: small island states and indigenous populations have claimed in a variety of international fora that climate change has threatened the human rights of their people;  an increasing number of academic commentators have worked to explain how climate change issues implicate human rights law;  and in 2009, the Office of the High Commissioner for Human Rights (OHCHR) issued the first UN report addressing the links between climate change and human rights.

The increasing incorporation of human rights law in climate change analysis is important, and the efforts to link climate change and human rights law have shifted from asking whether there is such a connection to examining the implications of the relationship. This recognition that climate change implicates human rights is significant because it provides a tangible legal framework for analyzing state actions that lead to climate change. Indeed, because the primary blame for climate change lies with the developed states that have caused the problem,  and because human rights analyses are typically centered on state action, human rights provides a lens through which to analyze developed countries’ culpability.

Permitting Pluralism: The Seal Products Dispute and Why the WTO Should Accept Trade Restrictions Justified by Noninstrumental Moral Values

Written by Robert Howse & Joanna Langille

To what extent does the legal framework of the World Trade Organization (WTO) permit trade restrictions that, at least in part, express the moral beliefs of particular societies and have a root in noninstrumental morality?

This Article will consider this question using the current Seal Products dispute as an example. The Seal Products dispute between the European Union, Canada, and Norway will be the first occasion on which the WTO dispute settlement organs are required to consider noninstrumental rationales (expressions of intrinsic moral or spiritual beliefs) as a distinct basis for trade-restrictive measures.  While the WTO dispute settlement system is no stranger to cases regarding the treatment of animals,  the policies at issue in earlier cases related to objectives—such as conservation of exhaustible natural resources—that are anchored in environmental science and international policy, or that are related instrumentally to the protection of human life and health or economic interests.  The EU seal products ban is in part aimed instrumentally at improving animal health and welfare, but it is also based on a level of protection for the animals in question that is grounded in the community’s ethical beliefs about the nature of cruelty and the unacceptability of consumption behavior that is complicit with that cruelty.

We will argue that the WTO legal framework allows countries to adopt trade restrictive measures based on anti-cruelty concerns, both to protect the animals and to express moral censure of those practices. Under WTO law, there is ample policy space for countries to express beliefs concerning the treatment of animals through nondiscriminatory trade measures. Further, and more generally, we deploy our analysis of animal welfare in the Seal Products dispute in order to espouse a conception of pluralism that recognizes the importance of expressive, noninstrumental rationales for state decisionmaking, even if those rationales differ or are understood and articulated differently in different societies and cultures. If noninstrumental considerations were impermissible grounds for trade restrictive action, countries would not be able to restrict trade for many sincerely held philosophical or religious reasons.  For example, Israel would not be able to prohibit the importation of nonkosher foods,  and a state with a large Hindu majority would not be able to prohibit imports of bovine meat.  Adopting this position would constitute considerable overreach on the part of the WTO.

Note: Permitting Pluralism: The Seal Products Dispute and Why the WTO Should Accept Trade Restrictions Justified by Noninstrumental Moral Values

Written by Allyson Bennett

Congress passed the Drug Trafficking Vessel Interdiction Act (DTVIA)  in 2008 to address a new tool employed by drug traffickers to transport illicit drugs worldwide: the self-propelled submersible vessel (SPSS). According to one congressman, at any particular moment more than one hundred of these vessels are destined for the United States, and each can carry large amounts of drugs.  One SPSS vessel intercepted by the Coast Guard, for example, contained seven tons of cocaine, worth $187 million.  SPSS vessels pose new problems for law enforcement. They are both difficult for the Coast Guard to detect and easy for crewmembers, who often prefer losing their cargo to being caught, to sink. At the first sign of the Coast Guard, drug traffickers can quickly sink the vessel and jump into the ocean, which destroys the evidence necessary to prosecute them for a drug offense and forces the Coast Guard to undertake rescue operations.

The DTVIA responds to these practical difficulties by criminalizing the operation of a submersible or semi-submersible vessel without nationality and with the intent to evade detection.  The U.S. Court of Appeals for the Eleventh Circuit, the only Circuit to have heard a challenge to the DTVIA as of April 1, 2012, has treated the law as an extension of its predecessors,  the Marijuana on the High Seas Act (MHSA)  and the Maritime Drug Law Enforcement Act (MDLEA).  The previous laws made it criminal for individuals to possess drugs with the intent to distribute while on board a “vessel subject to the jurisdiction of the United States,” which was defined to include vessels without nationality.  Courts upheld these earlier laws on the theory that, under customary and treaty international law, all states can exercise jurisdiction over stateless vessels on the high seas solely because of their status as stateless.  The Eleventh Circuit, however, seemed not to realize that stateless vessels played a different role under the DTVIA than they had had in the MHSA and MDLEA.  Unlike these laws, the DTVIA does not use a vessel’s statelessness solely as a jurisdictional hook. Instead, the DTVIA makes the operation of a stateless vessel a key component of the substantive crime it proscribes.

This Note argues that the DTVIA’s dual treatment of stateless vessels blurs the distinction between claiming jurisdiction over stateless vessels because they are stateless and treating the operation of a vessel without nationality as a universal crime. While customary and treaty international law may authorize the former, it does not, and should not, authorize the latter. The use of vessels without nationality does not pose the same threat to the international community as currently recognized universal crimes. Furthermore, making the operation of a stateless vessel a universal crime would affect other areas of international law, like refugee law, in significant and troubling ways.

Comment: After Chabad: Enforcement in Cultural Property Disputes

Written by Giselle Barcia

Cultural property is a unique form of property. It may be at once personal property and real property; it is non-fungible; it carries deep historical value; it educates; it is part tangible, part transient.  Cultural property is property that has acquired a special social status inextricably linked to a certain group’s identity. Its value to the group is unconnected to how outsiders might assess its economic worth.  If, as Hegel posited, property is an extension of personhood, then cultural property, for some, is an extension of nationhood.

Perhaps because of that unique status, specialized rules have developed, both domestically and internationally, to resolve some of the legal ambiguities inherent in “owning” cultural property. The United States, for example, has passed numerous laws protecting cultural property  and has joined treaties and participated in international conventions affirming cultural property’s special legal status.  Those rules focus primarily on conflict prevention and rely upon strong protections to preempt cultural property disputes. But specialized cultural property laws, in the United States and elsewhere, pay scant attention to the issues that arise when prevention fails. Specifically, those laws neglect to provide adequate guidelines for cultural property litigation and enforcement.

That legal lacuna underlies the recent developments in the cultural property case Agudas Chasidei Chabad v. Russian Federation, more commonly known as Chabad v. Russia.  This Comment addresses the problem of enforcement in international cultural property law, as manifested in Chabad v. Russia. The Chabad organization  brought litigation against Russia in U.S. federal court to recover the Schneerson Collection, held at the Russian State Library. The Collection consists of sacred Jewish texts on Chabad Chassidic tradition amassed by successive generations of Rebbes beginning in 1772.  The Collection has two components: the “Library,”  nationalized during the Bolshevik Revolution,  and the “Archive,”  plundered during the Second World War.  The Collection, then, is simultaneously a part of Russian heritage  and integral to the historical, religious, and ethnic identity of Chabad.  After a decades-long diplomatic campaign to recover ownership of the Collection,  Chabad challenged the legality of those two takings in U.S. federal court in 2006.  In July 2010, the Court of Appeals for the D.C. Circuit ruled in Chabad’s favor.

Recent Publications

On the Frontlines: Gender, War, and the Post-Conflict Process. By Fionnuala Ní Aoláin

Civilian or Combatant?: A Challenge for the Twenty-First Century. By Anicée Van Engeland.

Complicity and the Law of State Responsibility. By Helmut Philipp Aust.

When International Law Works: Realistic Idealism After 9/11 and the Global Recession. By Tai-Heng Cheng.

All the Missing Souls: A Personal History of the War Crimes Tribunals. By David Scheffer.

This Side of Silence: Human Rights, Torture, and the Recognition of Cruelty. By Tobias Kelly.