Friday, February 6, 2009

Self-Execution in Collective Security


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.

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