Volume 38, Issue 2

Treaty Interpretation and Constitutional Transformation: Informal Change in International Organizations

Written by Julian Arato

Like all constituted bodies of government, international organizations change over time—sometimes in profound and unexpected ways. Besides developing through the obvious mechanism of formal amendment by the constituent member states, these governance bodies can and do undergo a more autonomous kind of constitutional development—what might be called informal constitutional change or transformation. This type of quiet evolution may occur on different levels—including the reordering of the organization’s internal architecture in terms of the relative competences of its various organs, as well as the development of the powers of the organization as a whole vis-à-vis the states parties. Unlike formal amendment, which occurs through the express decision of the member states according to a certain procedure, informal transformation occurs more subtly, through the practice of the organization. Although the latter mode of change may attract less attention than the former, the degree of change involved can be just as dramatic.

This Article is about one particular mode of informal change: the transformation of an organization through the practice of its judicial organ in the interpretation of its constituent instrument—in other words, transformation through constitutional interpretation. Not all international organizations include judicial organs, and not all judicial organs are constituted in the same way. Different institutions have been delegated different powers and different kinds of jurisdiction. Their judges are chosen through widely varying procedures, and entertain very different interpretive outlooks. Yet in the abstract the basic fact remains clear: where they are established, such international courts and tribunals tend to contribute substantially to the development of their larger organizations. Through the interpretation of the formal terms of their constituent instruments, these constituted judicial bodies have proven capable of transforming the material constitutions of the organizations to which they belong.

Interpretation Catalysts and Executive Branch Legal Decisionmaking

Written by Rebecca Ingber

Consider the following scenarios in which the United States government must establish a position on its legal authority to detain in a nontraditional conflict such as that with al Qaeda. First, envision exigent combat circumstances: U.S. military operatives find themselves confronting individuals connected to al Qaeda whom they would like to capture and detain, and must determine the scope of their legal authority to do so. Now imagine this question arises in the context of a major report the United States is due to provide to the monitoring committee for a human rights treaty, explaining its understanding of its obligations under and compliance with the provisions of that treaty. Finally, consider how this interpretation might play out if U.S. officials were first asked to state the government’s legal authority for detention in the context of litigation brought by individuals who allege that the government has unlawfully detained them. Might the executive’s position on its legal authority, or even its willingness to stake out a position, differ depending on which of these contexts first triggers the question for legal decisionmakers? If so, why?

Each of these scenarios presents an example of what this Article terms an “interpretation catalyst”—a distinct triggering event compelling the U.S. government to consider, determine, and potentially assert an interpretation of its obligations and authority under domestic or international law. Interpretation catalysts exist in countless forms and play a significant and at times decisive role in shaping the executive’s legal and policy decisionmaking processes and ultimate decisions. Interpretation catalysts can drive the executive branch to crystallize a legal view on a matter that is entirely novel; can bring a formerly identified but dormant issue into urgent focus; and can transfer an issue from one decisionmaking forum to another. The resulting processes triggered by these catalysts then have dramatic—and often predictable—effects on the executive’s ultimate position. That position and the catalyst that influences it are all the more important because of the stickiness of executive decisions, and legal positions in particular, once taken. This Article explores the critical role played by interpretation catalysts in influencing the executive’s ultimate substantive legal decisions, including by determining a particular question’s point of entry within the government, framing the task, shaping the interpretive process, establishing the relative influence of the relevant actors, and informing the contextual pressures and interests that may bear on the decision.

The Judicial Role in New Democracies: A Strategic Account of Comparative Citation

Written by Johanna Kalb

Courts in countries as diverse as Uganda, India, South Africa, and Japan have regularly cited foreign and international law in their decisions, particularly when in the early stages of democratic transition. Other courts, in countries such as Taiwan and Hungary, also rely consistently on comparative sources, but are less likely to identify them explicitly in decisions, in part because of the way in which opinions are drafted. Nevertheless, their adoption of key foreign concepts means that “the impact of foreign constitutional courts is easy to detect in many decisions.”

Part of the explanation for the prevalence of this comparative practice in the democracies formed following World War II is clearly structural—their new constitutions often explicitly incorporated international standards or foreign-rights models into their constitutional commitments. Additionally, many such foreign and comparative references are likely utilitarian; new courts lacking legitimate indigenous jurisprudence may need to borrow early on to speed up the decisionmaking process. Constitutional commitment, however, is only a partial explanation, for in many of these countries the rate of use of foreign and international law references does not seem to track directly with constitutional requirements. In other words, engagement with foreign and international law does not seem to vary measurably between nations based on differences between their specific constitutional commitments. For example, South Africa’s Constitutional Court is among the courts most active in considering the experience of other countries, even though its Constitution does not require it to do so. Similarly, the Ugandan Constitutional Court regularly cites both foreign and international law and practice despite the absence of any explicit constitutional directive. Despite the constitutional directive to consider international law as part of domestic law, the Namibian Supreme and High Courts consider comparative law more frequently than international law in some areas of their jurisprudence.

Address: International Criminal Justice 5.0

Written by Harold Hongju Koh
The project of securing international criminal justice for the worst atrocities is approaching its seventieth birthday. At this milepost, it is worth looking back both on what international criminal justice has accomplished and what the United States has contributed to it. To use computer programming terminology, you may think of us as now experiencing what I call “International Criminal Justice 5.0.” Let me review the five phases of this historic global project, the role of the United States in advancing it, and the challenges that still loom ahead for international criminal justice and the United States.

Let me begin with Nuremberg, what could be called the “beta testing” phase for International Criminal Justice 1.0. Nearly seventy years after the Nuremberg Trials, what seems most remarkable now is that they happened at all. Looking back, we sometimes think of trials—particularly the International Military Tribunal at Nuremberg and the subsequent U.S. Nuremberg proceedings—as the logical and inevitable response to Nazi atrocities. But at the Tehran Conference, Stalin reportedly suggested that World War II conclude with the summary execution of at least fifty thousand Germans. At Yalta, Churchill apparently “thought a list of the major war criminals . . . should be drawn up . . . [and] they should be shot once their identity is established.” Even Roosevelt’s Secretary of the Treasury, Henry Morgenthau, suggested that war criminals be summarily liquidated.

Note: Mexico’s Drug “War”: Drawing a Line Between Rhetoric and Reality

Written by Andrea Nill Sánchez

In August 2011, gunmen burst through the doors of a casino located in Monterrey, Mexico, doused the premises with gasoline, and set it on fire. Five members of the Zetas drug cartel were arrested in connection with the incident, which killed fifty-two Mexicans. Although Mexican officials have traditionally rejected using terrorist or insurgency terminology to describe drug cartels, former Mexican President Felipe Calderón responded to the mass killing by condemning the “aberrant act of terror and barbarity.” Later, he also asserted that, “it is evident that we are not faced with ordinary delinquents but by actual terrorists who know no boundaries.” Calderón’s description of the violent act initially appeared indicative of a new way of thinking. Although Calderón promptly “backed off” of the terrorism label, his remarks reenergized a vigorous debate concerning the status of the Mexican government’s confrontation with the region’s violent drug cartels. Across the border, lawmakers and public officials in the United States are increasingly confronted with a loaded question: is Mexico’s metaphorical drug war transforming into a verifiable armed conflict under the laws of war?

This Note argues that the answer is no. Although the current approach is largely inadequate, applying a law-of-war framework is not legally appropriate, nor would it provide the appropriate remedies. The worsening violence in Mexico has rightfully motivated many people to reassess the current anti-cartel strategy. Nevertheless, redefining the situation in Mexico as an armed conflict and recasting drug cartels as terrorists or insurgents would misapprehend the drug cartels’ true nature. Further, applying the law of armed conflict framework would trigger a military approach and accompanying legal regime that are ill suited to meet the challenges that drug cartels pose.

Comment: “Proceeding at Your Own Risk”: Evaluating a New Principle of International Law for Provisional Measures

Written by Shouvik Bhattacharya
In Passage Through the Great Belt, Finland requested the International Court of Justice to issue provisional measures preventing Denmark from constructing a bridge that could lead to an abridgment of Finnish ships’ rights of free passage through the Great Belt. The ICJ denied Finland’s request for interim orders, and in so doing made a pointed note that “in principle . . . if it is established that the construction of works involves an infringement of a legal right, the possibility cannot and should not be excluded a priori of a judicial finding that such works must not be continued or must be modified or dismantled.” Twenty years later, this statement would be institutionalized as “a principle of international law” in an arbitration proceeding between India and Pakistan.

Through a request dated May 17, 2010, the Islamic Republic of Pakistan initiated arbitration proceedings against the Republic of India under the Indus Waters Treaty of 1960. The dispute centered on India’s construction of the Kishenganga Hydroelectric Project (KHEP) that Pakistan claimed violated its rights under the Treaty. Pakistan subsequently requested provisional measures under Paragraph 28 of Annexure G of the Treaty on June 6, 2011, asking the Arbitration Panel to enjoin any further construction on the KHEP until the Panel’s award at the merits stage. Pakistan also asked the Panel to declare that “[a]ny steps India has taken or may take in respect of the KHEP are taken at its own risk and without prejudice to the possibility that the Panel may in its decision on the merits order that the works must not be continued or must be modified or dismantled.” The latter is Pakistan’s restatement of what it repeatedly referred to over the course of the arbitration proceedings as the “proceed at your own risk” principle of international law, which it claimed to derive from the Great Belt case. By an order dated September 23, 2011, the Kishenganga Order, the Panel granted Pakistan partial relief and enjoined India from constructing the dam portion of the planned project. As to the remaining parts of the project, while the Panel did not formally declare further provisional measures, it stated that “the continuation of such activity is appropriately governed by the ‘proceed at your own risk’ principle of international law” and thereby implicitly—functionally—granted Pakistan’s latter demand as well.

Recent Publications

Dignity Rights: Courts, Constitutions, and the Worth of the Human Person. By Erin Daly. Reviewed by Allison Day.

Cyber Warfare and the Laws of War. By Heather Harrison Dinniss. Reviewed by Robert Nightingale.

Armed Conflict and Displacement: The Protection of Refugees and Displaced Persons Under International Humanitarian Law. By Mélanie Jacques. Review by Leslie Esbrook.

The Law of Non-International Armed Conflict. By Sandesh Sivakumaran. Reviewed by Reema Shah.

US International Lawyers in the Interwar Years: A Forgotten Crusade. By Hatsue Shinohara. Reviewed by Charles Dameron.

“Partly Laws Common to All Mankind”: Foreign Law in American Courts. By Jeremy Waldron. Reviewed by Cameron A. VanSant.

The Sovereign Citizen: Denaturalizaiton and the Origins of the American Republic. By Patrick Weil. Reviewed by John Wei.

The Verdict of Battle. By James Q. Whitman. Reviewed by Jennifer Skene.