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Exploring U.S. treaty practice through a military lens.

I.   TREATY CODIFICATION OF THE LAWS AND
     CUSTOMS OF WAR
     A. The Law of Armed Conflict Generally
     B. Why Treaties Still Matter
II.  TREATY FORM: ADVICE AND CONSENT
    A. 1949 Geneva Conventions: The United
       States as Standard Bearer for "Enlightened
       Practices of Civilized Countries"
    B. The Ratification Process and Unilateral
       Actions: The 1977 Additional Protocol I
       and II to the Geneva Conventions and the
       Military Impact on Advice and Consent
    C. The Chemical Weapons Convention of
       1993: Bargaining, Horse Trading, or
       Extortion?
III. SELF-EXECUTION: HAMDAN AND
     NORIEGA SQUARED
IV.  INTERPRETATION: YAMASHITA & HAMDAN
V.   IMPLEMENTING LEGISLATION
VI.  FEDERALISM AND THE TREATY POWER:
     TESTING THE LIMITS
     A. The "Curious Case" of Ms. Bond and
        the Chemical Weapons Convention
     B. Consequences of Bond
VII. THE STRUGGLE FOR EQUILIBRIUM,
     TILTED TOWARD "OUR AMERICAN VALUES"
VIII. CONCLUSION


INTRODUCTION

Treaty practice related to the regulation of armed conflict provides a useful and comprehensive illustration of the interaction between treaties and U.S. law and policy. A body of international law, the law of armed conflict (LOAC), (1) which establishes rules for the conduct of hostilities and treatment of war victims, is central to understanding the constitutional treaty power. (2) LOAC treaties impact perhaps the most vital national security function: employing our military power to protect the nation. Ultimately, like so many other aspects of the relationship between international law and the pursuit of vital national security objectives, LOAC treaty practice reflects a continuous pursuit of balance between two sometimes competing influences on national security policy: achieving the critically important objective of mitigating the suffering associated with armed hostilities, and providing sufficient flexibility and legal authority to engage in decisive military action. (3) Ultimately, because LOAC treaties reflect a quintessential federal function, both their formation and the domestic responses to these core treaties by Congress, the courts, and our constituent States can provide vital insight into U.S. treaty practice.

Striking an effective balance between mitigating suffering in armed conflict and ensuring sufficient legal authority for decisive military action has influenced the LOAC treaty development and implementation process. This Article will illustrate how the three branches of the federal government have, over time, leveraged their constitutional roles in the treaty process to affect this balance. The pursuit of equilibrium is an important trend reflected by LOAC treaty practice and has manifested itself both through the checks and balances inherent in our constitution's separation of powers and, to a lesser extent, through the division of power between the national federal government and the constituent states. This should come as no surprise, as our Founders intended that these separation of power and federalism frictions would influence U.S. treaty practice, even when that practice impacts the exercise of the war and foreign affairs powers.

This Article will provide a descriptive overview of LOAC treaty practice and illustrate three themes that appear through this practice. First, the advice and consent and treaty implementation authority vested in Congress have enabled and will continue to enable the legislature to significantly influence whether and to what extent the nation will commit itself to limitations on wartime prerogatives. From the close of World War II to the present, Congress has moved from embracing extensive constraints on national military power to opposing such constraints to preserve U.S. flexibility in the use of such power. These efforts provide important examples of the tools Congress leverages to produce these effects: the Senate's use of understandings, reservations, and conditions within a treaty's resolution of consent to ratification, and the enactment of implementing legislation, or subsequent limiting legislation, designed to control the domestic impact of ratified treaties.

Second, this Article highlights the important role played by the judicial branch in the treaty interpretation process, a role that complements--but may at times contradict--executive interpretation. As will be discussed, the willingness of the judicial branch to exercise interpretive authority over complex issues implicating war powers is an important illustration of the scope and importance of judicial treaty interpretation despite the Constitution's explicit vesting of the war powers in the other two branches. (4)

Finally, although federalism constraints on national power have not recently produced any meaningful limits on the treaty power as it relates to wartime authority, the Supreme Court's revival of federalism concerns in Commerce Clause cases may augur some additional restrictions on treaty implementation. As shown in a recent case, Bond v. United States, (5) even treaties intended to regulate armed hostilities may implicate core federalism concerns. Bond also illustrates that even if federalism considerations have no impact on the power of the United States to bind itself to LOAC obligations, they may affect the implementation of those agreements domestically. Given the Founders' desire to limit the States' interference with the fulfillment of national treaty obligations, it is ironic that federalism may be invoked in the twenty-first century to bolster such interference.

This Article first provides a very general overview of the LOAC and then considers how LOAC treaties provide a powerful indication of why treaties are, and will remain, essential to the development and implementation of international law. It then explores the role of the Senate in the creation and ratification of U.S. treaty obligations, offering insight into how that role has subtly evolved since the end of World War II, and particularly since the 1987 completion of the Third Restatement of the Foreign Relations Law of the United States. The Article then considers constitutional aspects of LOAC treaty implementation: first, the role of implementing legislation in fulfilling--or frustrating--the international obligations encompassed in these LOAC treaties; and second, the impact of federalism on LOAC treaty implementation. Next, this Article attempts to glean what minimal lessons are available from the limited judicial forays into the complex waters of LOAC treaty interpretation. Finally, the Article considers whether there has been a reversal of positions between the political and judicial branches on the proper balance between preserving national freedom to act and commitment to international standards of wartime conduct, the potential normative significance of such a shift, and the potential impact of the recent resurgence of federalism interests seen in Bond.

I. TREATY CODIFICATION OF THE LAWS AND CUSTOMS OF WAR

A. The Law of Armed Conflict Generally

One of the oldest branches of international law, the LOAC (often called international humanitarian law), provides a detailed and surprisingly comprehensive framework to regulate hostilities. This law was historically divided into two branches: the conduct of hostilities and humanitarian protection. While neither of these branches is truly isolated from the other (each branch imposes overlapping obligations), this general dichotomy provides a useful framework to facilitate understanding of the nuances of the law. It is also a dichotomy derived from the treaty codification of customary international law. That codification occurred along two distinct trajectories, generally known as the Hague and Geneva traditions, each indicating a branch of conflict regulation defined by a category of treaties. (6)

The Hague tradition is derived from the Hague Convention IV and Annexed Regulations of 1907. (7) This treaty (a successor to the 1899 Hague Convention (8)) focused on the regulation of armed forces in the field with a primary purpose of regulating the actual conduct of hostilities. The Geneva tradition derives from the Geneva Conventions, a category of treaties with a significantly different focus: protecting victims of war. (9) The first Geneva Convention, (10) adopted in 1864, focused on the protection of the wounded and sick in the field--a humanitarian objective immediately embraced by the international community. This first treaty blossomed into what are today four treaties, the Geneva Conventions of 1949. Each of the four Conventions focuses on ameliorating the suffering of a distinct category of war victim: (1) the wounded and sick, (11) (2) the wounded, sick, and shipwrecked at sea, (12) (3) prisoners of war, (13) and (4) civilians in the hands of an enemy belligerent power. (14) In 1977, these two branches of conflict regulation were effectively unified when the two Additional Protocols to the 1949 Geneva Conventions were opened for signature. (15) Today, the regulation of armed hostilities by multilateral treaty--treaties that find their origins in both the Hague and Geneva traditions--is a ubiquitous aspect of planning and executing military operations. (16) Furthermore, because the United States is party to most of these LOAC treaties (17)--international agreements that impose limitations on the nation's ability to lawfully achieve the most vital strategic objectives--they provide a rich landscape for understanding the role of treaties in U.S. practice.

B. Why Treaties Still Matter

Treaties certainly do not provide the exclusive source of conflict regulation; customary international law, national policy, and other sources of "soft law" all supplement treaty law. However, treaties do and will continue to play a dominant role in this regulatory mosaic. The reasons for this are manifold, but two considerations are especially significant. First, as "law of the land," ratified treaties are and will always be considered obligatory by the U.S. armed forces. This recognition is a critically important aspect of U.S. treaty practice. Rarely will military commanders or the legal officers advising them ask whether a treaty is or is not self-executing. While certainly an important consideration in the context of judicial enforcement, in terms of identifying obligations that guide the planning and execution of military operations, it is the fact that the U.S. is bound by treaties that compliance. LOAC treaties are viewed as operational and regulatory in nature by the mere fact they have been ratified. Furthermore, for purposes of military operations, these treaties are often functionally implemented not by statute but by regulations, policies, command directives, or doctrine. For example, if a U.S. commander is establishing a POW camp during an international armed conflict, compliance with the Geneva Convention Relative to the Treatment of Prisoners of War (Geneva III) will in no way be impacted by a self-execution analysis. Instead, as a treaty ratified by the United States, commanders and the legal officers who advise them will consider the treaty binding as such, unless directed by higher competent authority to deviate from the terms of the treaty. Their actions are also directly governed by joint service regulations, which incorporate and make treaty requirements directly applicable to U.S. military operations. (18) As a result of this codification trend, interpretation and application of multilateral LOAC treaties are central aspects of planning and executing military operations. (19)

Therefore, LOAC treaties "matter" because unlike Department of Defense policy or even executive orders, they are clearly understood by the armed forces as binding obligations, immune from policy modification. (20) This significance is illustrated by the almost immediate Department of Defense reaction to the Supreme Court's decision in Hamdan v. Rumsfeld, which confirmed that the Geneva Conventions applied to Taliban and al Qaeda prisoners. (21) Based on the Court's interpretation that Common Article 3 of the Geneva Conventions directly applied to prisoners who up to that point had been characterized as unlawful enemy combatants unprotected by the Conventions, the Under Secretary of Defense instructed the Department to ensure compliance with this obligation within twenty-four hours of the publication of the opinion. (22) This course of events--a Supreme Court decision interpreting the scope of a LOAC treaty followed by an immediate enunciation of Department of Defense policy to ensure compliance with that interpretation--is clear evidence that treaties have a profound impact on the planning, execution, and oversight of military operations, impacts which can originate in any of the three branches of government.

Perhaps an even more important LOAC-based illustration of why treaties still "matter" is that treaties have become the almost unquestioned best (and probably only) means of prohibiting the use of weapons considered fundamentally inhumane. The exercise of military force remains a core attribute of sovereignty, and treaties are the mechanism used by nations to impose constraints on its exercise. Specifically, treaties provide what is perhaps the only effective mechanism to restrict or prohibit the development and use of certain weapons. (23) While Article 23 of the Regulations Annexed to the 1907 Hague Convention IV states that "it is especially forbidden... [t]o employ arms, projectiles, or material calculated to cause unnecessary suffering ...", (24) in practice this general prohibition has not been particularly effective because of the lack of state consensus on what weapons violate this rule. (25) Nonetheless, states still strive to identify those weapons systems considered especially pernicious on the battlefield. To eliminate state discretion inherent in bilateral treaties, states increasingly turn to the multilateral treaty as a mechanism to prohibit entire classes of weapons--a mechanism designed to eliminate the discretion of individual states to pick and choose lawful and unlawful weapons.

The effort to ban chemical weapons provides a prime example. Although widely condemned since their first use in World War I, early attempts to ban the use of chemical weapons through treaty in 1925 were ineffective. (26) These weapons cause especially brutal suffering to the victims (for example, blister agents cause disability and almost certain death by inflicting the equivalent of burn blisters on all exposed parts of the body, including the respiratory system if inhaled). They are also by nature inherently indiscriminate: once released it is impossible to control where and whom they will impact. In a densely populated battlefield like Western Europe, these traits posed immense risk to the civilian population. While general revulsion to this means of warfare remained widespread, (27) it had become obvious that the 1925 treaty prohibiting only their use was ineffective to remove these weapons from the battlefield. This was largely due to State practice of preserving the right to retaliatory use in reservations to the treaty. It was not until the 1997 entry into force of the Chemical Weapons Convention (CWC), which prohibited state reservations, that their production, stockpile, or use was finally banned. (28) Indeed, the CWC not only reflects the continued relevance of treaty law in the regulation of armed hostilities but also a new technique to eliminate especially pernicious weapons from the arsenals of armed forces. (29) These and other multi-lateral LOAC treaties indicate that the treaty process is today recognized as perhaps the most effective mechanism for mitigating the negative humanitarian consequences of armed conflict.

II. TREATY FORM: ADVICE AND CONSENT

The President "shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." (30) As with many other shared constitutional authorities, the treaty-making process was designed to restrain unchecked power in any one branch. Requiring Senate consent was intended "both to protect the rights of the states and to serve as a check against the President's taking excessive or undesirable actions through treaties." (31) Involvement of the Senate, representing the legislative branch, was also essential because under the new Constitution treaties automatically became "the supreme law of the land." (32) Because formation of law of war treaties is intertwined with another power shared between the Executive and Legislative branches--the war power--the LOAC treaty ratification process is an especially important manifestation of this constitutionally required inter-branch interaction.

The Senate's advice and consent often reflects the realities of international and domestic politics as well as the Senate's effort to influence United States foreign policy. Thus, the Senate's willingness to consent to treaty obligations will often fluctuate based on the broader national sense of geostrategic necessity. In some cases, as in the ratification of the 1949 Geneva Convention, the views of the Senate and the President merge with little disagreement arising during the advice and consent process. (33) In others, the Executive may set a course quite distinct from the Senate's position, as was the case with the 1977 Additional Protocols to the Geneva Conventions. In that case, Executive concerns over the existing military-political realities resulted in the decision to reject the treaty it had been instrumental in drafting without submitting it to the Senate for advice and consent. In contrast, the Executive did seek advice and consent for Additional Protocol II (drafted at the same time as AP I), but the Senate exerted its power by failing to take any action on the treaty, which remains in limbo to this day. In recent years as geopolitical consensus between the President and the Senate has deteriorated, advice and consent for even seemingly uncontroversial treaties, such as the 1992 Chemical Weapons Convention, has become fraught with controversy and disagreement.

A. 1949 Geneva Conventions: The United States as Standard Bearer for "Enlightened Practices of Civilized Countries"

Against the background of the devastation of World War II, as signs of the impending Cold War became apparent, the United States negotiated and signed the 1949 Geneva Conventions. These four treaties substantially amplified protections for victims of war. Although transmitted to the Senate in 1951, (34) in 1952 developments in the Korean War led the Department of State to request that consideration of the Conventions by the Senate be deferred. (35) Foremost among these developments were: (1) the alleged severe maltreatment by North Korea of U.S. and United Nations (U.N.) POWs (including allegations of brainwashing and forced indoctrination); (2) significant difficulty in maintaining order in U.N POW camps in Korea; and (3) continued international disagreements on the issue of forced repatriation of POWs at the end of hostilities, an issue that arose in the immediate aftermath of World War II and persisted after the Korean armistice. When in 1955 the Senate finally took up ratification, these issues concerning POWs--issues that arose both after World War II and in Korea--were of particular concern. (36)

The POW repatriation obligation, already problematic following World War II, became even more contentious after the Korean War. (37) Credible and extensive reports of Soviet mistreatment of POWs after World War II led to increased U.S. concern that the Soviets would not adhere to humanitarian norms in any future conflict--conflict that was seen as increasingly likely given the advent of the Cold War. This view was reinforced by the inhumane and brutal treatment of U.S. and U.N. POWs by opposing communist forces in the Korean War. (38)

As a result, the U.S. began to rethink its views of the repatriation obligations in both the 1929 POW Convention (39) and the proposed Article 118 of the 1949 POW Convention. (40) The Soviet Union viewed these repatriation obligations as mandatory, with no possibility of asylum for POWs who did not wish to return to their countries of origin. For the U.S., the requirement to deal with real world implementation of POW repatriation policies, as well as the advent of the Cold War, led to a reinterpretation of the 1949 Conventions and to a conclusion that POWs had a right to refuse to be repatriated to their country of origin and to seek asylum or repatriation to another country. (41) The U.S. considered this view in accord with the humanitarian object and purposes of the Geneva Conventions, (42) a view concurred in by the United Nations General Assembly. (43)

The Korean War only exacerbated the existing tensions within the U.S. government between the Department of State, which was developing the U.S. legal position on the POW issue, and the military, which was seeking firm guidance to execute its ongoing duties as an Occupying (and detailing) Power. (44) Only in 1955, after the Korean War ended and the U.S. government was able to evaluate and incorporate its experience in that conflict into its Cold War foreign policy, did the Department of State request that the Senate take up consideration of the 1949 Conventions. (45) A key part of this experience was the North Korean and Chinese brainwashing and mistreatment of U.S. POWs. (46)

Because U.S. ratification of the Geneva Conventions played out against this backdrop of an advancing communist ideology and the impending Cold War, officials within the U.S. government increasingly saw ratification

as a means to defend the ideals of western civilization through a universal system of international law. (47) In order to promote this ideological war, the Executive and the Senate were willing to accept the legal constraints imposed on the conduct of U.S. foreign policy by the Conventions, (48) "associating] the preservation of the universality and unity of international [law] with the defense of its national interests in the rising world of the Cold War against the Soviet Union's anti-universalistic philosophy." (49) Accordingly, in 1955, the Executive in seeking favorable consideration by the Senate considered the Four Geneva Conventions as:
   [A]nother long step forward toward mitigating the severities
   of war on its helpless victims ... reflecting] enlightened
   practices as carried out by the United States and other civilized
   countries and they represent largely what the United
   States would do whether or not a party to the conventions. (50)


Delaying consideration of the Conventions by the Senate until after the lessons of the Korean War could be assessed was seen as necessary to allow a considered evaluation of their obligations. Furthermore, it proved useful to assess their effect on actual military operations, particularly in the context of a war with a non-party to the Conventions. According to the Senate Report:
   The experience of the Korean conflict emphasized the importance
   of the conventions. Our side, in fact, applied their
   humanitarian provisions and offered victims the protection
   these were designed to achieve. The enemy's ruthless behavior
   was exposed by their disregard of the Geneva rules. There
   is reason to believe that the moral acceptance of the conventions
   as a general norm did have some effect on the enemy.
   The Communists to some extent improved their treatment
   and eventually did repatriate a number of sick and wounded
   as well as numbers of other prisoners after hostilities. With
   further regard to the Korean conflict, our unified command,
   in giving effect through the Armistice Agreement to the principle
   of release and repatriation employed in the prisoners-of-war
   conventions, successfully confirmed that a detaining
   power has the right to offer asylum to prisoners of war and is
   not obligated to repatriate them forcibly. These fundamental
   points have been upheld by an overwhelming vote in the
   United Nations General Assembly. (51)


The Department of Defense's conclusion that adherence to the standards embodied in the Conventions would not "prejudice the success of our arms in battle" (52) also reflected lessons of the recent brutal conflict in Korea, and was crucial to favorable Senate action. By urging ratification, the Department of Defense underscored that the Conventions merely require the treatment that the United States already accords (53) and that "fair and just treatment" of protected persons "contribute[s] to success in battle by providing those conditions of order and stability which permit a belligerent to devote its real efforts to the defeat of the enemy armed forces." (54) Pragmatically, the Department of Defense concluded that the "conventions give us the means of dealing with the problems we encountered in Korea and forbid those very acts which so outraged our conscience." (55)

The Senate quickly recommended ratification, echoing the Executive position that the legal constraints imposed by the Conventions were constraints already present in the policies, practices, and values of the United States and its people:
   Our Nation has everything to gain and nothing to lose by being a
   party to the conventions now before the Senate, and by encouraging
   their most widespread adoption. As emphasized in this report, the
   requirements of the four conventions to a very great degree reflect
   the actual policies of the United States in World War II. The
   practices which they bind nations to follow impose no burden upon
   us that we would not voluntarily assume in a future conflict
   without the injunctions of formal treaty obligations. (56)


And like the Executive, the Senate emphasized the object and purpose of the 1949 Geneva Conventions as representative of the values of the United States, particularly, that:
   [T]hese four conventions may rightly be regarded as a
   landmark in the struggle to obtain for military and civilian
   victims of war, a humane treatment in accordance with the
   most approved international usage. The United States has a
   proud tradition of support for individual rights, human
   freedom, and the welfare and dignity of man. Approval of
   these conventions by the Senate would be fully in conformity
   with this great tradition. (57)


Ratification of the 1949 Geneva Conventions was thus perceived as contributing to U.S. efforts "[t]o lead the free world and defend the interest of international law." (58) Faced with the threat posed by the U.S.S.R. and its potential unwillingness to comply with humanitarian requirements in warfare, the U.S. saw ratification of the 1949 Conventions as a critical step in the establishment of universal mandatory legal standards applicable to warfare, (59) standards that could be used in the doctrinal battle with the U.S.S.R. In the face of this overarching foreign policy necessity, and in the midst of the deepening of the Cold War, the relative unanimity of opinion (60) between the Senate and the Executive is unsurprising, representing for the U.S. "an equilibrium [or more properly, an alignment] between its international and national imperatives." (61) Ratification of the Conventions reflected the U.S. view of the mandates of a universal international law of armed conflict and the U.S. leadership role in achieving it:
   Through its own conduct in previous wars the United States
   has been instrumental in encouraging the acceptance of
   standards of treatment which would preserve the peoples of
   all races and all nations from the savageries and barbarisms
   of the past. By adding our name to the long list of nations
   which have already ratified, we shall contribute still further
   to the world-wide endorsement of those high standards which
   the draftsmen at Geneva sought to achieve. (62)


B. The Ratification Process and Unilateral Actions: The 1977 Additional Protocol I and II to the Geneva Conventions and the Military Impact on Advice and Consent

The Advice and Consent process provides the Senate with the ability to influence the nature of U.S. treaty obligations. However, this power has little meaning if the President never seeks ratification of a previously negotiated treaty. How the Reagan Administration dealt with the 1977 Additional Protocol I to the Geneva Conventions of 1949 (63) provides a somewhat unusual reminder that although the Senate can block the ratification of a treaty favored by the President, it has no power to influence the President's decision not to ratify a treaty.

In 1975, the International Committee of the Red Cross convened a conference to update and improve the 1949 Geneva Conventions. (64) Two treaties emerged from this conference: Additional Protocols I and II (AP I and II). AP I supplemented the law applicable to international armed conflicts (inter-state wars), while AP II supplemented the law applicable to non-international armed conflicts (civil wars). (65) Each treaty included codifications of widely accepted customary international law, refinements of existing Geneva Convention obligations, and advancements in the law. (66)

The United States played a central role in the drafting of these treaties, which President Carter signed in 1977. (67) Thereafter, following President Carter's signature, the two treaties were submitted to the Pentagon for a comprehensive review. (68) By the time this process was completed, Ronald Reagan was the President of the United States. The Pentagon's review identified a number of concerns with both Protocols--especially AP I--and the Department of State shared these concerns. (69) Although the Pentagon considered most of the treaty provisions either codifications of existing customary international law or positive developments in the law, several provisions led the Pentagon to conclude that AP I reflected an unacceptable politicization of the LOAC. Most notably, the Protocol included "war[s] of national liberation" occurring solely within the territory of a state within its scope of applicability, thereby transforming them from "internal" to "international" armed conflicts. (70) AP I also substantially diluted the Geneva III requirements for POW qualification by allowing insurgents to claim this lawful combatant status so long as they showed their weapons immediately prior to attack (71) (as opposed to the traditional requirement to carry arms openly and wear a fixed distinctive symbol recognizable at a distance). (72) The Joint Chiefs concluded that the combined effect of these provisions incentivized terrorism and diluted key LOAC principles. In contrast, there were no significant concerns raised in relation to AP II. (73)

President Reagan transmitted AP II to the Senate for advice and consent in 1987. (74) The wisdom of President Reagan's decision to reject AP I remains controversial. (75) Most U.S. allies, including almost all NATO allies, reached the opposite conclusion and ratified the treaty. (76) Many of these states shared the same concerns with specific provisions, but instead of outright rejection addressed these concerns through reservations and understandings, (77) an option that the Senate never had the opportunity to recommend. Today, the U.S. is one of a handful of states not party to this treaty, which often complicates coalition operations because of disparate treaty obligations. (78)

Although President Reagan transmitted AP II to the Senate recommending its ratification, a recommendation repeated by both President Clinton and President Obama, the treaty remains in limbo. (79) The reasons for delay are difficult to assess, but it is clear that, as with any other treaty, even the most determined efforts of the Executive to bind the nation to an international obligation through a treaty are insufficient absent Senate support. The inverse is also obvious: No matter how much the Senate considers a treaty beneficial to the nation, Executive agreement is essential to both the making and ratification of the treaty.

C. The Chemical Weapons Convention of 1993: Bargaining, Horse Trading, or Extortion?

Reaching consensus between the two political branches on treaty commitments obviously involves political negotiation. Unfortunately, even the fact that a treaty advances an unquestionably important U.S. interest does not guarantee that the Senate will agree to the treaty's goals, terms, or appropriate implementing measures. The four-year battle over the ratification of the CWC--a ratification that was expected to be uncontroversial and largely uncontested--provides an especially useful illustration of the impact of inter-branch political friction in the ratification process. (80)

Negotiated by both the Reagan and Bush administrations and signed by Secretary of State Lawrence Eagleburger in January 1993 at the end of the Bush administration, the CWC enjoyed extensive bipartisan Congressional support. Negotiated under the leadership of the United States, the CWC w(as a direct response to the ongoing fear of the widespread use of chemical weapons should the Cold War turn hot. Although the 1929 Gas Protocol prohibited such use, almost all state parties reserved the right to engage in retaliatory use. (81) As a result, Warsaw Bloc and NATO armed forces possessed massive stockpiles of chemical weapons and trained extensively for such a contingency.

The CWC prohibited not only the use, but also the production and stockpiling of such weapons. The treaty also included an obligation to eliminate existing chemical weapons and established a robust international inspection and verification regime. These aspects of the treaty benefited from widespread support by past and present military leaders, American allies and trading partners, and the U.S. chemical industry. (82) Additionally, the CWC was expected to have little concrete effect on U.S. policy. It merely committed other nations to the same path that the U.S. had adopted unilaterally in 1984 when Congress decided to destroy the U.S. chemical weapons stockpile. (83)

Distracted by domestic economic concerns and international crises, President Clinton not only delayed submitting the CWC to the Senate until November 1993, (84) he also devoted very little political capital to the ratification effort. Struggles within the Republican Party after the end of the Cold War also affected ratification. Tensions between the internationalists "who believe[d] that American leadership in world affairs is vital to the country and entails costs that are worth paying" (85) and the more conservative "unilateralist and isolationist" (86) wing of the party began to play out in the battle over ratification.

This tension echoed that experienced by the U.S. at the end of World War II and highlighted diametrically opposed views of the proper role of the U.S. on the world stage. (87) For the internationalists, the "failure to assume the appropriate leadership role [would] leave the management of world affairs to other states less able or inclined to uphold the political values and economic rights the United States deems important." (88) In contrast to this view, the unilateralists believed that "the United States should shun international obligations comparable to those assumed by other states when they may restrict U.S. freedom of action. Protection of American interests is best achieved without the encumbrances of working with other states in international bodies." (89) Senator Jesse Helms, a strong proponent of the isolationist wing of the party, opposed the ratification of the CWC.

Unfortunately for the Clinton administration, its year-long delay in seeking the advice and consent of the Senate meant that by the summer of 1994, the Senate Foreign Relations Committee awaited input from both the Senate Intelligence Committee on the treaty's verification procedures and from the Armed Services Committee on the effect of the CWC on military operations. As a result, the Senate took no action on ratification prior to the 1994 midterm elections, which shifted control of both the Senate and the House to the Republicans and resulted in Senator Jesse Helms becoming the Chair of the Senate Foreign Relations Committee. (90) As the new Chair, Senator Helms leveraged his authority to control consideration of the treaty to obtain concessions from the Clinton administration on other foreign policy questions, particularly on his proposed legislation to consolidate three independent agencies into the State Department. (91)

As part of a brokered agreement to break this logjam, Senate Democrats agreed to work with Senator Helms on restructuring the foreign affairs agencies and Senator Helms agreed to report the CWC out of the committee by April 30, 1996, with Majority Leader Robert Dole scheduling a Senate vote on the treaty within a reasonable time. Despite this procedural agreement, Senator Helms opposed the CWC's substance, believing it was "unverifiable, unenforceable, and would lull the Nation into a false sense of security." (92) Senator Helms was personally opposed to the treaty. Although he committed to reporting the CWC out of Committee, his proposed resolution of ratification contained over twenty conditions, most of which were seen as "'poison pills' designed to block U.S. ratification or delay it indefinitely." (93) Organizing in response, a bi-partisan group of Senators on the committee defeated Senator Helms's proposed resolution and voted to report out of committee an alternative version lacking the poison pill provisions. (94)

A vote was contentiously scheduled for September 14, 1996. (95) Unfortunately, the hardening of positions within the Republican Party made passage of the CWC on the Senate floor a risky proposition--one that became more risky as 1996 wore on. In the months prior to the vote, opponents of the treaty mobilized commentators and columnists in an attempt to influence undecided Senators. (96) Additionally, as the 1996 Presidential election neared, consideration of the CWC in Congress became increasingly politicized. In the face of almost certain defeat, the Clinton administration requested that the CWC be withdrawn from Senate consideration. Senator Lott agreed, and the CWC was re-referred to the Senate Foreign Relations Committee. (97)

On October 31, 1996, immediately prior to the 1996 Presidential election, Hungary became the 65th country to ratify the Convention, triggering a 180-day countdown to its entry into force. (98) Thus, April 29, 1997 became the deadline for ratification if the U.S. wished to become an original party to the Convention. Failure to do so could have significant consequences for the U.S., including forfeiting a seat on the Executive Council overseeing execution of the treaty and drafting its rules, barring U.S. citizens from serving either on the Technical Secretariat (the primary verification body) and the international inspectorate, and the imposition of mandatory economic sanctions and embargos costing U.S. chemical companies over $600 million in business losses. (99)

Having staked its credibility on approval of the CWC and believing that failure to ratify the treaty "would signal an American retreat from the world and undermine U.S. leadership in combating weapons proliferation, terrorism, and other transnational problems," (100) the Clinton Administration began a major push for advice and consent. This campaign required a sustained effort by Senator Biden and other administration officials to address Senator Helms's concerns by crafting an acceptable resolution of ratification. (101) Paralleling these negotiations, the Clinton Administration also engaged in substantial negotiations with the Senate leadership, in particular Senator Trent Lott, in an attempt to move the CWC out of committee and on to the Senate floor for a vote. (102)

In addition to the ongoing horse-trading in the Senate, the Administration began a public relations push to influence undecided Senators to vote to ratify the treaty. Secretary of State Madeleine Albright led the effort, forging a personal relationship with Senator Helms to assist in the negotiations. (103) Although faced with an equally vociferous public relations blitz opposing the treaty, Secretary Albright's testimony before the Senate Foreign Relations Committee articulated the importance attached to the treaty's ratification, and its view of the leadership role of the United States:
   I believe [ratification] very much in the best interest of the
   United States----America is the world's leader in building a future
   of greater security and safety for us and for all who share our
   commitment to democracy and peace. The path to that future is
   through the maintenance of American readiness and the expansion of
   the rule of law. We are the center around which international
   consensus forms. We are the builder of coalitions, the designer of
   safeguards, the leader in separating acceptable international
   behavior from that which cannot be tolerated.... This leadership
   role for America may be viewed as a burden by some, but I think, to
   most of our citizens, it is a source of great pride. It is also a
   source of continuing strength, for our influence is essential to
   protect our interests, which are global and increasing. If we turn
   our backs on the CWC after so much effort by leaders from both
   parties, we will scar America with a grievous and self-inflicted
   wound. We will shed the cloak of leadership and leave it on the
   ground for others to pick it up.... By ratifying the CWC, we will
   assume the lead in shaping a new and effective legal regime. We
   will be in a position to challenge those who refuse to give up
   those poisonous weapons. We will provide an added measure of
   security for the men and women of our armed forces. We will protect
   American industry and American jobs. We will make our citizens
   safer than they would be in a world where chemical arms remain
   legal. This treaty is about other people's weapons, not our own. It
   reflects existing American practices and advances enduring American
   interests. It is right and smart for America. (104)


In early 1997, the White House and Senator Helms continued to work out understandings and conditions to be included within the resolution of ratification. (105) Of particular concern were whether search warrants would be required for challenge inspections of U.S. chemical plants (what would become condition 28), concern over possible trade-secret compromises (condition 18), and, finally, military use of riot control agents (RCA) (condition 26). (106)

The CWC prohibited the use of RCAs as a "'method of warfare' because it was hard to distinguish between nonlethal and lethal chemicals on the battlefield, creating the risk of inadvertent escalation." (107) The CWC allowed RCA use for normal peacekeeping, humanitarian and disaster relief operations, and counter-terrorism and hostage-rescue situations outside a war zone. (108) Existing U.S. policy allowed the use of RCAs, such as tear gas, in accordance with a 1975 Executive Order, "in 'defensive military modes to save lives.'" (109) In early ratification discussions in 1994, the Joint Chiefs of Staff had reluctantly acceded to the Clinton Administration's more "narrow legal interpretation of the CWC as banning any use of tear gas in situations where enemy combatants were present." (110) By 1997, in the face of Senator McCain's threat to vote against the treaty unless the option to use tear gas to rescue downed American pilots was retained (even if it violated the text of the treaty), the administration's representative agreed that the 1975 Executive Order would remain in effect, allowing RCA use "in defensive military modes to save lives." (111) Presented to the State Department as a fait accompli required to obtain Senate ratification of the treaty, this condition (number 26) generated concern that a future President would be able to use RCAs in a manner prohibited by the CWC, undermining its object and purpose. (112)

As the deadline approached, Senator Biden suggested to the White House that some support of Senator Helms's bill to reorganize the foreign affairs agencies might be an acceptable step to move the CWC out of committee. (113) The Administration's actions consolidating foreign affairs agencies contributed toward an agreement to report the treaty out of committee and to schedule a Senate vote on April 24, five days before the CWC's entry into force. (114) This move ultimately led to successful agreement on twenty-eight of the conditions for ratification, leaving five conditions still in dispute. Unfortunately, these five were largely considered as barriers to ratification. (115) The proposed resolution of ratification contained thirty-three conditions, twenty-eight of which would by agreement not be subject to changes. The other five conditions remained subject to amendment by majority vote. (116) The White House continued to publicly push for ratification, inviting former Senator Dole as a surprise speaker at the White House in support of its approval on the day prior to the scheduled vote. After eighteen hours of floor debate, the five separate motions to remove each of the five killer amendments passed--leaving the agreed upon resolution of ratification with twenty-eight conditions to be voted upon by the Senate. (117) In a dramatic floor vote, the Senate voted seventy-four to twenty-six to ratify the Convention with the twenty-eight consensus conditions. It then took Congress another year to pass legislation implementing this Convention. (118)

The international negotiation of the CWC was seen as a major success of American foreign policy, creating a multi-lateral international regime to eliminate a heinous weapon of war through the first LOAC treaty to address an inhumane weapon by prohibiting not only its use, but also its production and stockpiling. (119) However, in the four years after the U.S. signed the treaty, the bipartisan view of the wisdom of binding multilateral international legal obligations fell victim to the realities of politics and interbranch frictions, thus its ratification became dependent on significant compromises to its object and purpose. The Senate's ratification of the CWC with twenty-eight conditions--most significantly, the assertion of authority to continue RCA use--compromised worldwide perception of U.S. commitment to the treaty. Perhaps more importantly, it raised significant questions as to the present and future willingness of the U.S. to commit to other weapon prohibition treaties.

III. SELF-EXECUTION: HAMDAN AND NORIEGA SQUARED

Domestic implementation of the 1949 Geneva Conventions provides useful insight into the doctrine of self-execution. (120) Like all treaties ratified by the United States, these four treaties are, pursuant to Article VI, Section 2 of the Constitution, the "supreme law of the land." But, like all other treaties, the domestic force and effect of these treaties turns on application of the self-execution doctrine. Adopted as a method of judicial treaty interpretation early in our history, this doctrine draws a distinction between treaties that by their terms create discernible standards for judicial enforcement (those that operate of themselves) and treaties that commit the nation to perform some future legislative act. (121) Key to this determination is whether any given treaty provision can be enforced without additional legislative action. Courts have characterized this distinction as "one of the most confounding in treaty law." (122)

As this doctrine developed, courts looked beyond the text of the treaty to the treaty's object and purpose as well as the intent of the parties to determine whether the treaty had immediate domestic effect. As a result, the Senate's advice and consent often significantly impacts subsequent interpretation of the domestic effect of a treaty. (123) Further complicating this already complex assessment is the common conflation of two distinct questions: first, whether the treaty operates domestically without further Congressional enactment; and second, whether the treaty confers a private right of action on an individual to enforce provisions of the treaty. (124)

A small number of judicial opinions have grappled with the self-execution question as it relates to the 1949 Geneva Conventions. In these cases, individuals sought to challenge presidential directives by invoking the protection provisions of these treaties. Like other cases that may arise under the Conventions, such challenges required our courts to resolve the twin issues of whether particular articles of the 1949 Geneva Conventions are directly enforceable, and even if not, whether Congress has effectively implemented them through statutes enacted to address wartime exercises of national power. Two cases, Hamdan v. Rumsfeld and United States v. Noriega, highlight the complexity of self-execution. (125) Furthermore, Noriega also exposed the significance of Congress's prohibiting individuals from invoking these treaty protections as a source of domestic right. (126)

In Hamdan v. Rumsfeld, Common Article 3 of the Conventions provided a treaty based authority for the Supreme Court to rule that Hamdan's trial by military commission was unlawful. However, the Court did not resolve the question of whether the Geneva Conventions writ large were self-executing. Instead, the Court concluded that because Congress had incorporated the law of war into the Uniform Code of Military Justice provision authorizing trial by military commission, the President was obligated to comply with this provision of the treaty, thus sidestepping the self-execution question. According to the Court, the Geneva Conventions were:
   an independent source of law binding the Government's actions and
   furnishing [Hamdan] with any enforceable right, [because]
   regardless of the nature of the rights conferred on Hamdan, they
   are ... part of the law of war. And compliance with the law of war
   is the condition upon which the authority set forth in Article 21
   is granted. (127)


This interpretation of the relationship between the UCMJ and the Geneva Conventions avoided the need to either directly tackle the lower appellate court's conclusion that the Conventions were not self-executing or affirm the district court's conclusion that they were. And, by applying Common Article 3 through the conduit of a federal statute (the UCMJ), the Court built its opinion on a solid constitutional foundation, as Article 21 of the UCMJ is an exercise of Congress's vested Article I authority. (128)

Nonetheless, no matter how the legal obligations of the Geneva Conventions became applicable in Hamdan, the Supreme Court interpreted Common Article 3 with sufficient breadth to achieve the Conventions' humanitarian object and purpose. This provided the basis for the Court to conclude that invoking the authority derived from the law of war through Article 21 triggered an obligation to comply with Common Article 3's minimum humanitarian protections. Consequently, once Common Article 3 of the Geneva Conventions was "incorporated" through Article 21, the Convention furnished the basis for a determination that the procedures adopted for Hamdan's military commission trial violated the requirements of that article. (129) Self-execution aside, Hamdan was therefore entitled to the protection of Common Article 3.

The prosecution, conviction, and decades later, extradition of General Manuel Noriega, whose antagonism of the United States culminated in the invasion of Panama in 1989, also involved self-execution of the Geneva Conventions. The case also involved a statute enacted long after his capture which restricted invocation of Convention protections.

The 1992 district court opinion granting Noriega POW status was premised on the conclusion that the Third Geneva Convention was both self-executing and a source of enforceable individual rights. (130) The court asserted that only through judicial action could Noriega be assured the protections provided to POWs by Geneva III. (131) The court emphasized that allowing Noriega to invoke the protections of the Convention in a U.S. court was necessary to fulfill the object and purpose of the treaty, once the court determined he did in fact qualify as a POW. Accordingly, recourse to the courts of the Detaining Power was an "appropriate measure" where available: (132)
   In the case of Geneva III, however, it is inconsistent with
   both the language and spirit of the treaty and with our professed
   support of its purpose to find that the rights established
   therein cannot be enforced by the individual POW in
   a court of law. After all, the ultimate goal of Geneva III is to
   ensure humane treatment of POWs--not to create some
   amorphous, unenforceable code of honor among the signatory
   nations. 'It must not be forgotten that the Conventions
   have been drawn up first and foremost to protect individuals,
   and not to serve State interests.' (133)


Unfortunately for Noriega, none of the enforceable rights in the Third Convention prevented his prosecution, conviction, or incarceration for pre-conflict crimes against the United States (although he did receive certain Convention-based conditions of confinement during his federal incarceration). (134) Seventeen years later, upon completing his sentence, Noriega would, however, seek a different benefit from the treaty: a bar to his extradition to France.

In 2007, France sought Noriega's extradition in order to try him for money laundering offenses that arose from his years of using France as a location to preserve his ill-gotten gains while he was head of the Panamanian Defense Forces. Noriega invoked the Third Convention to block his extradition, asserting that because France would not treat him as a POW, the U.S., as Detaining Power, was barred from transferring him. This effort failed when the Eleventh Circuit concluded that section 5 of the 2006 Military Commissions Act barred Noriega from invoking the Geneva Conventions as an individually enforceable right in U.S. courts. (135) This section of the MCA provides that:
   No person may invoke the Geneva Conventions or any protocols
   thereto in any habeas corpus or other civil action or
   proceeding to which the United States, or ... agent of the
   United States is a party as a source of rights in any court of
   the United States or its States or territories. (136)


The issue of self-execution was once again easily sidestepped, as the circuit court held that even if the Conventions were self-executing, Congress could eliminate the domestic applicability of such a self-executing treaty by enacting a subsequent statute contradicting the terms of the self-executing treaty: (137)
   As discussed below, while the United States' international
   obligations under the Geneva Conventions are not altered by the
   enactment of [section] 5 of the MCA, Congress has superseded
   whatever domestic effect the Geneva Conventions may have had in
   actions such as this." (138)


Noriega sought Supreme Court review of this decision, creating the possibility that his case might have significance beyond the mere final disposition of a long-forgotten U.S. enemy. This hope was short lived, as the Supreme Court denied his petition for certiorari. (139) Justices Thomas and Scalia, however, dissented from the denial. In their view, the case offered an ideal opportunity to consider whether Congress is authorized to prohibit the courts from considering the provisions of a ratified treaty as it relates to an individual litigant seeking a remedy under that provision. For them, resolution of this issue "would provide much-needed guidance on two important issues with which the political branches and federal courts have struggled since we decided Boumediene namely, whether the Geneva Conventions are self-executing and judicially enforceable and "the extent, if any, to which provisions like Section 5 affect 28 U.S.C. [section] 2241 [the federal habeas statute] in a manner that implicates the constitutional guarantee of habeas corpus." (140) They lamented the lost opportunity to "say what the law is" in a case unencumbered by classified information or issues relating to extraterritorial detention or the ongoing hostilities against al Qaeda. (141)

Nonetheless, as the result of section 5 of the MCA, the issue of self-execution of the Geneva Conventions will not likely be tackled by U.S. courts, as future litigants are likely to run into the same obstacle that prevented Noriega from invoking the treaty to bar his extradition. Section 948b(e) of the 2009 MCA, however, appears to have significantly narrowed this bar, applying it only to alien unprivileged enemy belligerents subject to trial by military commission. (142) Perhaps most importantly, these cases demonstrate the powerful influence Congress may assert on the enforceability of what facially appear, absent such action, self-executing treaty provisions.
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Title Annotation:Introduction into III. Self-Execution: Hamdan and Noriega Squared, p. 547-589
Author:Corn, Geoffrey S.; Brenner-Beck, Dru
Publication:Harvard Journal of Law & Public Policy
Date:Mar 22, 2015
Words:8788
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