Treaties in Parliaments and Courts: The Two Other Voices (Elgar International Law series) 1035324342, 9781035324347

Table of contents :
Front Matter
Copyright
Contents
Acknowledgments
Abbreviations
1. Introduction to Treaties in Parliaments and Courts: The Two Other Voices
PART I Parliaments
2. Vetoing
3. Promoting
4. Shaping
5. Translating
PART II Courts
6. Consistent interpretation
7. Direct application
8. Evidence for custom
9. Rejection
10. Non-self-execution
11. Non-justiciability
PART III Their proper place
12. Towards shared treaty powers
13. Towards judicial engagement
14. Conclusion to Treaties in Parliaments and Courts: The Two Other Voices
Index

Citation preview

Treaties in Parliaments and Courts

ELGAR INTERNATIONAL LAW Series Editor: Jacob Katz Cogan, University of Cincinnati, USA Editorial Board: Fausto Pocar, University of Milan, Italy, Christian Tams, University of Glasgow, UK, Nigel D. White, University of Nottingham, UK, Hilary Charlesworth, Judge, International Court of Justice, University of Melbourne, Australia, Helmut Philipp Aust, Freie Universität Berlin, Germany, Giulio Bartolini, Università degli studi Roma Tre, Italy, Veronika Fikfak, University College London, UK, Monica Hakimi, Columbia University, USA This important series will present high-quality monographs that analyse current thinking and research across the field of international law, rigorously examining key concepts as well as provoking debate and questions for further research. Some volumes will draw on insights from disciplines other than law, such as economics and politics, in an attempt to arrive at a genuinely inter-disciplinary perspective. Seeking to attract original thinking and new, challenging research, proposals are encouraged that primarily engage with new and previously under-developed themes in the field, or alternatively offer an innovative analysis of areas of uncertainty in the existing law. For a full list of Edward Elgar published titles, including the titles in this series, visit our website at www​.e​-elgar​.com.

Treaties in Parliaments and Courts The Two Other Voices

Felix Lange Professor of Public Law, International and European Law, Law Department, University of Cologne, Germany

ELGAR INTERNATIONAL LAW

Cheltenham, UK • Northampton, MA, USA

© Felix Lange 2024 Cover image: Chidi Kwubiri, Talking, 2009 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2023952709 This book is available electronically in the Law subject collection http://dx.doi.org/10.4337/9781035324354

ISBN 978 1 0353 2434 7 (cased) ISBN 978 1 0353 2435 4 (eBook)

EEP BoX

To Jakob, Martha and Moritz

Contents Acknowledgmentsix List of abbreviationsx 1

Introduction to Treaties in Parliaments and Courts: The Two Other Voices1

PART I

PARLIAMENTS

2 Vetoing

25

3 Promoting

53

4 Shaping

84

5 Translating

93

PART II

COURTS

6

Consistent interpretation

128

7

Direct application

173

8

Evidence for custom

194

9 Rejection

204

10 Non-self-execution

224

11 Non-justiciability

237

PART III THEIR PROPER PLACE 12

Towards shared treaty powers

258

13

Towards judicial engagement

294

14

Conclusion to Treaties in Parliaments and Courts: The Two Other Voices327 vii

viii

Treaties in parliaments and courts

Index333

Acknowledgments The book is a considerably shortened version of my Habilitationsschrift, which was accepted by the law faculty of the Humboldt Universität zu Berlin as Habilitationsleistung in 2021. I conceived, wrote and finalized the manuscript as a post-doctoral fellow at the Kolleg-Forschungsgruppe ‘The International Rule of Law: Rise or Decline?’, funded by the Deutsche Forschungsgemeinschaft. First and foremost, I would like to thank my Habilitationsbetreuer Judge at the International Court of Justice, Georg Nolte. His readiness to thoroughly debate issues of (international) law, politics and history has been captivating. His continuous support allowed me to build an academic career. I am also grateful to Andrew Hurrell, Heike Krieger, Andrea Liese and Andreas Zimmermann for creating such a stimulating intellectual environment at the KFG and bearing with me despite three paternity leaves, two Lehrstuhlvertretungen and a research stay at Princeton University. Moreover, I am thankful to all fellows, doctoral students and student assistants for vivid exchanges during the many Monday meetings and Thursday lunches since October 2015. Last but not least, my gratitude goes to Helmut Aust, Janina Barkholdt, Dana Burchardt, Jean Galbraith, Malcolm Jorgensen, Thomas Kleinlein, Alejandro Rodiles, Alena Rogge, Sophie Schubert and Lukas Wilmer for commenting on parts of the manuscript. PREVIOUS PUBLICATION Substantial parts of Chapter 4 have been published in ‘Foreign Relations Law as a Bargaining Tool?’ in: H. Aust/T. Kleinlein (eds), Encounters between Foreign Relations Law and Public International Law – Bridges and Boundaries (Cambridge University Press 2021), 23–45. Felix Lange Berlin, July 2023

ix

Abbreviations ACHR AfD ANC ATS CAT CCAIL CCP CDU CEDAW CETA CERD COP CPPED CRC CRMW CRPD CSU DA EC ECHR ECJ ECtHR

American Convention on Human Rights Alternative for Germany African National Congress Alien Tort Statute Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Code of Crimes against International Law Code of Criminal Procedure Christian Democratic Union Convention on the Elimination of All Forms of Discrimination against Women Comprehensive Economic and Trade Agreement International Convention on the Elimination of All Forms of Racial Discrimination Conference of the Parties Convention for the Protection of All Persons from Enforced Disappearance Convention on the Rights of the Child Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families Convention on the Rights of Persons with Disabilities Christian Social Union Democratic Alliance European Community European Convention on Human Rights European Court of Justice European Court of Human Rights x

Abbreviations

EPA EU FDP GA GOP IACtHR ICC ICCPR ICESCR ICJ ICTR ICTY ILA ILC INC NATO NDC NGO NGT OP PCIJ PDS PHRA Rome Statute RUDs SADC SC SPD UDHR UN

Environmental Protection Agency European Union Free Democratic Party General Assembly Grand Old Party Inter-American Court of Human Rights International Criminal Court International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Court of Justice International Criminal Tribunal for Rwanda International Criminal Tribunal for the Former Yugoslavia International Law Association International Law Commission Indian National Congress North Atlantic Treaty Organization Nationally Determined Contribution Non-Governmental Organization National Green Tribunal Optional Protocol Permanent Court of International Justice Party of Democratic Socialism Protection of Human Rights Act Rome Statute of the International Criminal Court Reservations, Understandings and Declarations South African Development Community Security Council of the United Nations Social Democratic Party Universal Declaration of Human Rights United Nations

xi

xii

UNFCCC VCCR UNTC VCLT

Treaties in parliaments and courts

United Nations Framework Convention on Climate Change Vienna Convention on Consular Relations United Nations Treaty Collection Vienna Convention on the Law of Treaties

1. Introduction to Treaties in Parliaments and Courts: The Two Other Voices The influence of the executive on a state’s foreign policy concerning treaties can hardly be overstated. Whether in parliamentary or presidential systems, it is the prime minister with her or his cabinet, or the president with her or his advisors, who determines foreign policy, including a state’s perspective on treaties. Because the executive is empowered to negotiate, sign, ratify1 and terminate a treaty on behalf of a state, it develops a state’s position from the early negotiating stages on and maintains control of the decision-making process. Benefiting from privileged access to information as compared to other branches,2 the negotiators, as officials belonging to the executive, set the tone for the respective state’s approach. Furthermore, at least in parliamentary systems, the executive initiates the implementing legislation most of the time and thus strongly influences domestic debates on how to translate a treaty into domestic law. The key role of the executive in foreign affairs and in relation to treaties is often justified with the argument that a state should speak with ‘one voice’ and that the executive is the most fit organ to do so.3 However, at least in constitutional democracies,4 the legislature and courts, as the two other branches of government, also participate in domestic pro-

1 Ratification is sometimes understood to include both the approval act of parliament and the signature of the head of state. This study, however, adopts the understanding according to which ratification consists in a state’s notification of the will to be bound at the international level: C. McLachlan, Foreign Relations Law (CUP 2014), 161. 2 On the information asymmetry between the executive and legislature, T. Raunio and W. Wagner, ‘Towards Parliamentarisation of Foreign and Security Policy?’ West European Politics 40 (2017), 1 (9). 3 Baker v Carr, 369 US 186, 217 (1962), 26 March 1962; J. Nzelibe, ‘The Uniqueness in Foreign Affairs’, Iowa Law Review 89 (2003), 976–9; on this see D. Abebe, ‘One Voice or Many? The Political Question Doctrine and Acoustic Dissonance in Foreign Affairs’, The Supreme Court Review 2012 (2013), 233. 4 C. Bradley, ‘What Is Foreign Relations Law?’ in C. Bradley (ed.), The Oxford Handbook of Comparative Foreign Relations Law (OUP 2019), 4.

1

2

Treaties in parliaments and courts

cesses of treaty-making, treaty implementation and treaty application.5 The Westminster model of exclusive executive competences for treaty-making on the domestic level was successfully challenged in France and the United States in the course of the Atlantic revolutions. Various states have adopted schemes providing for parliamentary participation between the nineteenth century and the present day.6 In the majority of countries, parliaments now need to provide consent before the executive may ratify a treaty on behalf of the state.7 While it seems premature to suggest that parliaments are ‘the primary gatekeepers for international law’,8 the parliamentary role in relation to treaties merits attention. At the least, parliaments are instrumental for controlling the process of domestic compliance with treaty obligations, as they may often determine how treaties enter into the domestic legal system.9 Implementing legislation is regarded as the ‘domestic face’ of the treaty.10 Moreover, domestic courts in various jurisdictions have assertively adjudicated on cases touching upon foreign relations at least since the mid-1990s.11 While courts had often shied away from engaging with foreign affairs during the Cold War,12 domestic courts have increasingly decided on their states’ enforcement of and compliance with treaties in the past 30 years.13 While one

5 On the importance of distinguishing between the three branches see B. Çalı, ‘Comparing the Support of the EU and the US for International Human Rights Law qua International Human Rights Law: Worlds Too Far Apart?’ ICON 13 (2015), 901 (902, 904–8). 6 P.-H. Verdier and M. Versteeg, ‘International Law in National Legal Systems: An Empirical Investigation’, AJIL 109 (2015), 514; Figure 2. 7 Ibid. 8 K. Cope and H. Movassagh, ‘National Legislatures: The Foundations of Comparative International Law’, in A. Roberts, P. Stephan, P.-H. Verdier and M. Versteeg (eds), Comparative International Law (OUP 2018), 271 (272). 9 Ibid, 272. 10 E. Streicher, ‘Taking Treaty-Implementing Statutes Seriously’, in P. Stephan and S. Cleveland (eds), The Restatement and Beyond: The Past, Present, and Future of U.S. Foreign Relations Law (OUP 2020), 97 (97). 11 E. Benvenisti, ‘Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts’, AJIL 102 (2008), 241; H. Aust, ‘Between Universal Aspiration and Local Application: Concluding Observations’, in H. Aust and G. Nolte (eds), The Interpretation of International Law by Domestic Courts (OUP 2016), 333 (333–4). 12 E. Benvenisti, ‘Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts’, EJIL 4 (1993), 159. 13 D. Sloss (ed.), The Role of Domestic Courts in Treaty Enforcement: A Comparative Study (CUP 2009); D. Shelton (ed.), International Law and Domestic Legal Systems: Incorporation, Transformation, and Persuasion (OUP 2011); A. Nollkaemper, National Courts and the International Rule of Law (OUP 2011); H. Aust and G. Nolte (eds), The Interpretation of International Law by Domestic Courts:

Introduction

3

might wonder whether judicial references to foreign and international law generally became the ‘sword by which the government’s […] case is struck down’,14 it seems safe to say that the decisions of domestic courts contribute to a state’s perspective on treaties and their reception in domestic systems. Accordingly, the ‘two other voices’ are increasingly heard. This study focuses on the approach to treaties taken by the ‘two other voices’ and takes a particular angle highlighting the interwovenness between foreign relations law and international law. It assesses how divergent conceptions of foreign relations law affect the respective legislative and judicial engagements with treaties. What role do different thresholds of parliamentary consent play for parliament’s approaches to treaties? How do divergent rules on the status of treaties in the domestic legal order affect domestic courts’ perspectives on and reception of such treaties? And how should the role of ‘the other two voices’ in foreign relations law be conceived theoretically? Instead of treating the state as a monolithic block,15 shining light on the effects of foreign relations law on the perspective taken towards treaties promises intriguing insights about the interplay between domestic law and international law.

1.1

DIVERSE FOREIGN RELATIONS LAWS

I analyse the questions through a comparative lens focusing on the legislative and judicial approaches taken in four states (Germany, India, South Africa and the United States). But are these states, with their different shares of relative power in global politics,16 their disparate degrees of socio-economic development,17 their divergent historical and political traditions and their varying Uniformity, Diversity, Convergence (OUP 2016); International Law Association, Study Group on Principles on the Engagement of Domestic Courts with International Law, ‘Final Report: Mapping the Engagement of Domestic Courts with International Law’, 2016. 14 E. Benvenisti, ‘Democracy’, 243. 15 For critiques of the understanding of the state as a monolithic block see R.K. Ashley, ‘The Poverty of Neorealism’, International Organizations 38 (1984), 225 (238–42). 16 A statistic on the most powerful countries which takes military alliances, international alliances, political influence, economic influence and leadership into account ranks the United States at 1, Germany at 4, India at 13, and South Africa at 28: World Population Review, Most Powerful Countries 2023, https://​w​orldpopula​tionreview​ .com/​country​-rankings/​most​-powerful​-countries (all internet sources last accessed May 2023). 17 The United Nations Human Development Index for 2021 ranks Germany at 9, the United States at 21, South Africa at 109, and India at 132: United Nations Development Programme, Human Development Report 2021/2022, Uncertain Times, Unsettled Lives: Shaping Our Future in a Transforming World (2022) 272–3.

4

Treaties in parliaments and courts

population numbers,18 not too diverse to lend themselves to comparison? Are we comparing apples and oranges, or rather apples, oranges and mangoes?19 As in every qualitative comparative study, the selection of the objects of comparison needs to be justified.20 The choice of the legal systems depends on the objectives of the specific comparative study.21 Accordingly, the choice of the jurisdictions needs to promise to enhance the understanding of the relationship between foreign relations law and treaties. The four states have been selected for three reasons. First, the respective constitutions contain disparate schemes regarding the allocation of the treaty-making competences as well as the reception of treaties in the domestic order. In relation to treaty-making, the 1789 US constitution vests the President with the power to conclude treaties with the ‘Advice and Consent of the Senate’ as long as ‘two thirds of the Senators present concur’ (Article II, Section 2, Clause 2 of the US constitution). While the President may conclude congressional–executive agreements after prior authorization or subsequent approval of a simple majority in Congress, and sole executive agreements on their own,22 the treaties addressed in this study (UN human rights treaties, the Rome Statute of the International Criminal Court and the UN Framework Convention on Climate Change and its protocols)23 are generally regarded to be Article II treaties and thus subject to the two-thirds majority threshold (with the notable exception of the Paris Agreement). In Germany, the Bundestag (and at times the Bundesrat) need to consent to ‘political treaties’ and treaties that ‘regulate the political relations of the Federation or relate to subjects

18 As of 2021 South Africa was reported to have about 59,138,000 inhabitants, Germany 83,390,000, the United States 336,496,000, and India 1,402,808,000, United Nations, ‘Population Decision, World Population Prospects 2022’, https://​population​ .un​.org/​wpp/​Download/​Standard/​Population/​. 19 On the metaphor of apples and oranges see G. Nolte, ‘European and US Constitutionalism: Comparing Essential Elements’, in G. Nolte (ed.), European and US Constitutionalism (CUP 2005), 3 (5); on the metaphor of apples and mangoes see P. Dann, M. Bönnemann and T. Herklotz, ‘Of Apples and Mangoes: Comparing the European Union and India’, Indian Yearbook of Comparative Law 2016, 3. 20 R. Hirschl, ‘The Question of Case Selection in Comparative Constitutional Law’, AJIL 53 (2005), 125. 21 In general on how the purpose of the study affects the design of the comparative approach see R. Hirschl, ‘Comparative Methodologies’, in R. Masterman and R. Schütze (eds), The Cambridge Companion to Comparative Constitutional Law (CUP 2019), 11 (16–18). 22 C. Bradley, International Law in the U.S. Legal System (OUP, 3rd ed. 2021), 80–97. 23 On the reasons for the selection of the treaties see below.

Introduction

5

of federal legislation’ (Article 59(2) Sentence 1 of the Basic Law).24 The Bundestag needs to pass an approval law with a simple majority, while the Bundesrat’s consent is only required if the implementing law on the federal level needs to be adopted with its consent.25 Because the treaties addressed in this study at least relate to subjects of federal legislation, the Bundestag is always involved in the domestic treaty-making process.26 Similarly, in South Africa, international agreements are only binding after approval by resolution of the National Assembly and the National Council of Provinces (Section 231(2) of the constitution).27 While agreements of technical, administrative and executive nature may be concluded solely by the executive (Section 231(3) of the constitution), the treaties addressed in this study are Section 231(2) agreements. In contrast to these forms of parliamentary involvement, Indian constitutional practice vests the power to conclude treaties solely in the executive.28 Article 246 of the Indian constitution addresses the distribution of competences between the Union parliament and the state legislatures and confers ‘exclusive powers’ to the Union parliament for matters contained in the Union list. According to entry 14 of the Union list, the national parliament has the power to legislate on ‘entering into treaties and agreements with foreign countries’. Even though legal scholars stress that the national parliament could activate competences for participation in treaty-making through enacting a law,29 it has not done so. Moreover, because Article 73(1a) of the Indian constitution stipulates that the executive power of the Union ‘shall extend to the matters to which the Parliament has power to make laws’, it is widely assumed that the Union executive may conclude and ratify treaties even without parliamentary 24 On this see A. Paulus, ‘Germany’, in D. Sloss (ed.), The Role of Domestic Courts in Treaty Enforcement: A Comparative Study (CUP 2009), 209 (214). 25 R. Streinz, ‘Art. 59’, in M. Sachs (ed.), Grundgesetz. Kommentar (Beck, 9th ed. 2021), paras 47–50. 26 In contrast, no parliamentary approval is necessary for more technical executive agreements (Verwaltungsabkommen) (Article 59(2) 2 of the Basic Law). 27 J. Dugard, ‘International Law and the South African Constitution’, EJIL 8 (1997), 77 (81–3); H. Strydom, ‘Treaty-Making and Select Foreign Policy Matters under Constitutional and Judicial Scrutiny in South Africa’, in C. Hugo and T. Möllers (eds), Transnational Impacts on Law: Perspectives from South Africa and Germany (Nomos 2017), 247 (248). 28 V.K. Singh, ‘International Treaties and the Indian Legal System: New Ways Ahead’, Italian Yearbook of International Law 26 (2017), 63 (67–8). 29 U. Baxi, ‘Law of Treaties in the Contemporary Practice of India’, Indian Yearbook of International Affairs 1965, 137 (151); L. Rajamani, ‘International Law and the Constitutional Schema’, in S. Choudhry and M. Khosla and P.B. Mehta (eds), The Oxford Handbook of the Indian Constitution (OUP 2016), 143 (156); V.S. Mani, ‘Effectuation of International Law in the India Municipal Legal Order: The Law and Practice in India’, Asian Yearbook of International Law 5 (1995), 145 (161–5).

6

Treaties in parliaments and courts

involvement.30 The respective constitutional schemes on treaty-making thus provide for sole executive treaty-making power in India, shared competences in Germany and South Africa, and an exceptionally high threshold for the consent of the US Senate to treaties. Moreover, the four jurisdictions represent versions of the classical schemes of dualism and monism when it comes to the reception of treaties in the domestic order. Because the dualist approach regards the domestic and the international sphere as separated legal spheres, only an act of parliament may transform international law into domestic law, and international law has no primacy over domestic law.31 In contrast, the monist approach is premised on the assumption of legal unity, conceiving international law to be directly applicable in the domestic order and potentially even granting it primacy over domestic law.32 In this vein, Article VI, Clause 2 of the US constitution states that ‘all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land’ and that ‘Judges in every state shall be bound thereby’. A plain reading seems to suggest that treaties are directly applicable in the US domestic legal order and hold a supreme position, if only in relation to domestic state law.33 Some observers thus see the US constitution as an example of a (moderate) monist conception,34 even though the Supreme Court adopted a dualist reading of the constitution by broadly interpreting the concept of non-self-executing treaties.35 In contrast,

30 Ministry of External Affairs, Revision of Standard Operating Procedures (SOPs) with respect to MoUs/ Agreements with foreign countries, 2 April 2018, www​ .mea​.gov​.in/​images/​Revised​-SOPs​-with​-forwarding​-letter​-02042018​.pdf; P. Ranjan, ‘The Supreme Court of India and International Law: A Topsy-Turvy Journey from Dualism to Monism’, Liverpool Law Review 43 (2022), 571 (574–5); V. Sehrawat, ‘Implementation of International Law in Indian Legal System’, Florida Journal of International Law 31 (2019) 97 (107–10). 31 H. Triepel, Völkerrecht und Landesrecht (Hirschfeld 1899), 169–210. 32 H. Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechts (Mohr, 2nd ed. 1928). 33 On the relationship between treaties and federal statutory law see Restatement (Fourth) of The Foreign Relations Law of the United States (2018), § 309. 34 L. Henkin, ‘The Constitution and United States Sovereignty: A Century of “Chinese Exclusion” and its Progeny’, Harvard Law Review 100 (1987), 853 (886); T. Buergenthal, ‘Self-Executing and Non Self-Executing Treaties in National and International Law’, RdC 235 (1992-IV), 303 (315–16; 341); M. Waters, ‘Creeping Monism: The Judicial Trend toward Interpretive Incorporation of Human Rights Treaties’, Columbia Law Review 107 (2007), 628 (638, fn 32). 35 C. Bradley, ‘Breard, Our Dualist Constitution, and the Internationalist Conception’, Stanford Law Review [1999], 529; D. Sloss, The Death of Treaty Supremacy: An Invisible Constitutional Change (OUP 2016); D. Zartner, ‘The (Un) common Law: Legal Tradition and the Diverging Policies of the USA and Australia

Introduction

7

the Indian constitution follows the dualist British model. In the seminal 1980 Jolly Verghese v Bank of Chochin case, the Indian Supreme Court stressed that ‘international conventional law must go through the process of transformation into the municipal law before the international treaty can become an internal law’.36 Accordingly, the Court repeatedly referred to the applicability of the ‘doctrine of “dualism”’ in the Indian legal context37 and the need for an ‘act of transformation’.38 The South African and the German constitutional conceptions may be classified as lying in between. In South Africa, Section 231(4) of the constitution seems to follow the dualist model by stipulating that ‘[a]ny international agreement becomes law in the Republic when it is enacted into law by national legislation’. Moreover, the constitution does not vest treaties with precedence over parliamentary legislation. Accordingly, most commentators regard the South African scheme on the reception of treaties in the domestic order to represent a dualist conception.39 However, Section 231(4) of the constitution contains an exception allowing for direct applicability of self-executing treaty provisions without legislative incorporation in case of prior parliamentary approval of the treaty.40 While the German Basic Law does not explicitly determine the rank of treaties in domestic law, the Federal Constitutional Court takes the view that the parliamentary approval law to a treaty grants treaties the same rank as federal legislation.41 In this context, toward International Human Rights Law’, International Political Science Review 34 (2013), 411 (416). 36 Jolly George Verghese v The Bank of Cochin, 4 February 1980; 1980 AIR 470, 1980 SCR (2) 913, 918. 37 State of West Bengal v Kesoram Industries, 15 January 2004, Appeal (civil) 1532 of 1993; Bhavesh Jayanti Lakhani v State of Maharashtra (2009) 9 SCC 551, 7 August 2009; on this see N. Jayawickrama, ‘India’, in D. Sloss (ed.), The Role of Domestic Courts in Treaty Enforcement: A Comparative Study (CUP 2009), 243 (244); A. Chandra, ‘India and International Law: Formal Dualism, Functional Monism’, Indian Journal of International Law 57 (2017), 25 (32–4). 38 Union of India v Agricas Llp, 26 August 2020, Transfer Petition (civil) Nos 496–509 of 2020, para 21. 39 J. Dugard, ‘South Africa’, in D. Sloss (ed.), The Role of Domestic Courts in Treaty Enforcement: A Comparative Study (CUP 2009), 448 (451–3; 475); D. Tladi, ‘Interpretation of Treaties in an International Law-Friendly Framework: The Case of South Africa’, in H. Aust and G. Nolte (eds), The Interpretation of International Law by Domestic Courts (OUP 2016), 135 (139); G. Ferreira and A. Ferreira-Snyman, ‘The Incorporation of Public International Law into Municipal Law and Regional Law against the Background of the Dichotomy between Monism and Dualism’, Potchefstroom Electronic Law Review 17 (2014), 1471 (1473). 40 ‘[B]ut a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament’ (Section 231(4) of the constitution). 41 Federal Constitutional Court, 2 BvL 1/12, 15 December 2015, paras 45–6.

Treaties in parliaments and courts

8

the Court suggests that the German constitution adopted ‘the classic idea that the relationship of public international law and domestic law is a relationship between two different legal spheres’.42 Despite this dualist language, the notion of self-executing treaty provisions, commonly associated with monism, is well entrenched as an interpretative doctrine in German court practice.43 In sum, a strictly dualist Indian constitutional model, mixed monist-dualist German and South African conceptions and a (moderate) monist US model are compared with one another. These differences allow engagement with the question of how disparate schemes on the making and reception of treaties may affect the respective judicial takes on the treaties. Second, India, Germany, the United States and South Africa belong to the major constitutional democracies of the world. As Curtis Bradley rightly suggests, comparative foreign relations law is ‘most salient for constitutional democracies that separate power and have independent judiciaries’.44 Because constitutional democracies generally build their governmental system on three independent branches of government, each branch may at least potentially build an autonomous position on treaties. Even though executives, legislatures and courts in constitutional democracies are not completely separate but rather intertwined,45 some autonomy exists, allowing for divergent views on the benefits of foreign policies associated with treaties. For instance, as empirical evidence suggests, the degree of the independence of courts may explain why domestic courts resort to international law to control executive and legislative power.46 In countries that lack an independent judiciary, domestic courts simply adopt the policy preferences of those in power.47 Only if the US Senate dares to challenge the President on his or her position on treaties, only if the Indian Supreme Court dares to use international agreements to order parliament to take legislative action, do the allocation of foreign relations power and the constitutional rules on the reception of treaties in the domestic order seem to really make a difference. Thus, in constitutional democracies, the question of the relationship between foreign relations law and treaties poses itself with a particular sense of urgency.

Federal Constitutional Court, 2 BvR 1481/04, 14 October 2004, para. 34. See for instance Federal Constitutional Court, 1 BvL 7/66, 9 December 1970, para. 42. 44 Bradley, ‘Foreign Relations’, 2. 45 On different traditions C. Möllers, The Three Branches (OUP 2013), 16–37. 46 Nollkaemper, National Courts, 54–5. 47 D. Sloss and M. van Alstine, ‘International Law in Domestic Courts’, in W. Sandholtz and C. Whytock (eds), Research Handbook on the Politics of International Law (Edward Elgar Publishing 2017), 79 (80). 42 43

Introduction

9

Third, the four states are chosen because they stem from different regions. Even though the impact of foreign relations law on treaties is at the heart of this study, the regional political and historical influences on certain states’ perspectives towards, and reception of, treaties should not be neglected. Comparing two Northern and two Southern states promises to sharpen the understanding of the effects of regional experiences of dominance and decolonization on treaty-making and implementation.48 Moreover, the dominant research tradition situating foreign relations law in some Western states risks ‘fall[ing] into the trap of a self-referential, liberal, and Western mindset which takes discussions in a few jurisdictions of the Global North as being representative of the broader global picture.’49 Instead, broadening the horizon of and pluralizing comparative foreign relations law by including actors from the Global South is crucial for a thorough analysis.50 The regional differentiation promises to reveal how some developments in treaty-making and implementation are related to specific regional or historical experiences, while others might resemble a more universal trend in constitutional democracies.

1.2

HUMAN RIGHTS, THE ICC AND CLIMATE CHANGE TREATIES

The study focuses on three treaty regimes for its analysis of the relationship between foreign relations law and treaties. I examine the respective positions in the four states towards UN human rights treaties,51 the Rome Statute of the

48 For North/South comparison in comparative constitutional law in general see M. Hailbronner, ‘Overcoming Obstacles to North–South Dialogue: Transformative Constitutionalism and the Fight against Poverty and Institutional Failure’, Verfassung und Recht in Übersee 49 (2016), 253. 49 H. Aust, ‘Foreign Affairs’, in Max Planck Encyclopedia of Comparative Constitutional Law (August 2017), para. 6; more generally D. Bonilla Maldonado, ‘Introduction: Toward a Constitutionalism of the Global South’, in ibid. (ed.), Constitutionalism of the Global South: The Activist Tribunals of India, South Africa and Columbia (CUP 2013), 1. 50 M. Riegner, ‘Comparative Foreign Relations Law Between Centre and Periphery: Liberal and Postcolonial Perspectives’, in H. Aust and T. Kleinlein (eds), Encounters between Foreign Relations Law and International Law, Bridges and Boundaries (CUP 2021), 60; for a critique of lack of engagement with Indian foreign relations law, P. Singh, ‘Finding Foreign Relations Law’, in H. Aust and T. Kleinlein (eds), Encounters between Foreign Relations Law and International Law: Bridges and Boundaries (CUP 2021), 86. 51 The Office of the High Commissioner for Human Rights names as the nine core UN human rights treaties the CERD, ICCPR, ICESCR, CEDAW, CAT, CRC, CRMW, CPPED and CRPD: www​.ohchr​.org/​en/​p​rofessiona​linterest/​pages/​coreinstruments​ .aspx.

10

Treaties in parliaments and courts

International Criminal Court and the United Nations Framework Convention on Climate Change (UNFCCC) and its protocols. These multilateral treaties share two features that make their study particularly pertinent. First, the treaties call on all three branches to engage with them. Rather than containing solely state-to-state obligations, the treaties invite legislative implementation and judicial application. Human rights treaties define a standard for states on how to treat the individuals in the respective jurisdictions. This puts pressure on the legislature to bring parliamentary legislation in line with the international standards. The judiciary may use the ratified treaties in its reasoning when controlling whether the political branches properly protect individual rights. Accordingly, the Venice Commission of the Council of Europe emphasizes the ‘joint responsibility between the executive, the legislative and the judiciary in implementing international human rights treaties’.52 The Rome Statute is based on the principle of complementarity, placing on national legal systems the primary responsibility to prosecute atrocity crimes.53 The International Criminal Court (ICC) may only exercise its jurisdiction when the case is not prosecuted at the national level or when the national level purports to act but is unwilling and unable to genuinely carry out proceedings (Article 17(1)(a) of the Rome Statute). Accordingly, there exists an incentive to create national procedures through legislative action for effectively prosecuting atrocity crimes. The judiciary then may rely on such procedures to adjudicate on atrocity crimes and live up to the state’s primary responsibility.54 The objective of international climate change treaties is to mitigate climate change by reducing greenhouse gas emissions. While executive programmes may contribute to addressing the issue, legislative action promises to be particularly effective. The legislature may adopt legislation enabling a state to comply with the targets accepted under the Kyoto Protocol or the nationally determined contributions (NDCs) under the Paris Agreement. Moreover, even though

52 Venice Commission, ‘Report on the Implementation of International Human Rights Treaties in Domestic Law and the Role of Courts’, Doc. CDL-AD(2014)036, 8 December 2014, para. 85. 53 Informal Expert Paper, ‘The Principle of Complementarity in Practice’, (ICC-OTP 2003), www​.icc​-cpi​.int/​nr/​rdonlyres/​20bb4494​-70f9​-4698​-8e30​-907f631453ed/​ 281984/​complementarity​.pdf, 3; M. El Zeidy, ‘The Principle of Complementarity: A New Machinery to Implement International Criminal Law’, Michigan Journal of International Law 23 (2001), 869 (870). 54 On the role of potential of domestic proceedings M. Langer and M. Eason, ‘The Quiet Expansion of Universal Jurisdiction’, EJIL 30 (2019), 789; M. du Plessis, ‘The Future of International Criminal Justice Is Domestic’, 17 September 2014, http://​ ilawyerblog​.com/​future​-international​-criminal​-justice​-domestic/​.

Introduction

11

climate litigation is often based on domestic rules,55 litigators may draw from international agreements to call on states or companies to take more assertive measures combating climate change.56 Because the treaties examined here contain ‘inward looking obligations’,57 the legislature and judiciary are often required to take a position on them. Second, the evolution of these treaties is linked to the success of multilateralism after the end of the Cold War. During the 1990s, the ratification rates of UN human rights treaties like the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of the Child (CRC), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) skyrocketed. The 1998 Rome Statute erected a potentially universal penal system for the most atrocity crimes at the international level.58 The 1992 UNFCCC and its 1997 Kyoto Protocol were the key international responses to the problem of global warming.59 In the absence of the bipolar confrontation of the Cold War, these multilateral regimes seemed to evidence a ‘legalization’ of world politics and a ‘move to law’ on the international level.60 For many observers the evolution of the treaty regimes signalled a paradigm shift towards a more value-based international order in international relations and international law.61 For

55 M. Gerrard, ‘Overview of Climate Change Litigation’, ASIL Proceedings 113 (2019), 194; W. Burns and H. Osofsky, ‘Overview: The Exigencies that Drive Potential Causes of Action for Climate Change’, in ibid. (eds), Adjudicating Climate Change: State, National and International Approaches (CUP 2009), 1. 56 R. Cox, ‘A Climate Change Litigation Precedent: Urgenda Foundation v The State of the Netherlands’, Journal of Energy & Natural Resources Law 34 (2016), 145; J. Carnwath, ‘Climate Change Adjudication after Paris: A Reflection’, Journal of Environmental Law 28 (2016), 5; L. Wegener, ‘Can the Paris Agreement Help Climate Change Litigation and Vice Versa?’ Transnational Environmental Law 9 (2020), 1. 57 ILA, Study Group, 2012, 4. 58 On this M.C. Bassiouni (ed.), The Statute of the International Criminal Court: A Documentary History (Transnational Publishers 1998). 59 On this D. Bodansky, ‘The History of the Global Climate Change Regime’, in U. Luterbacher and D. Sprinz (eds), International Relations and Global Climate Change (MIT Press 2001), 23. 60 J. Goldstein, M. Kahler, R. Keohane and A.-M. Slaughter, ‘Introduction: Legalization and World Politics’, International Organization 54 (2000), 385. 61 Pointing to and criticizing the ‘value-based’ approach to international law: D. Tladi, ‘South African Lawyers, Values and New Vision of International Law: The Road to Perdition Is Paved with the Pursuit of Laudable Goals’, SAYIL 33 (2008), 167 (168); on these developments more generally H. Krieger and G. Nolte, ‘“The International Rule of Law – Rise or Decline?” – Approaching Current Foundational Challenges’, in

12

Treaties in parliaments and courts

instance, Ruti Teitel based her account of the emergence of ‘humanity’s law’ to a large extent on developments in human rights law and international criminal justice.62 Andreas Paulus linked the appeal of the term international community to ‘a more communal idea of a universal community based on common values such as peace, human rights and the preservation of the global commons such as the environment’.63 Moreover, certain norms of human rights law,64 features of climate change law65 and rules of international criminal law66 were interpreted as belonging to the category of jus cogens, the key manifestation of value-based international law.67 Also, in accounts about the constitutionalization of international law, human rights and criminal law – and to a lesser extent climate change law – have taken centre stage.68 Because of climate change law’s goal of addressing climate change as a ‘common concern of mankind’, criminal law’s ambition of ending impunity for perpetrators of atrocity crimes, and human rights law’s objective of protecting the individual, a more community-oriented international law seemed to assert itself. Today, the tide has shifted. For some years now, scholars have detected a stagnation in the creation of multilateral treaties,69 asking whether multilater-

H. Krieger, G. Nolte and A. Zimmermann (eds), The International Rule of Law: Rise or Decline? – Foundational Challenges (OUP 2019), 3 (5–7, 12–13). 62 R. Teitel, Humanity’s Law (OUP 2011). 63 A. Paulus, ‘International Community’, Max Planck Encyclopedia of Public International Law (March 2013), para. 8. 64 E. de Wet, ‘The International Constitutional Order’, ICLQ 55 (2006), 51 (57–9). 65 For instance, it was argued that grave pollution causing climate change and threatening the entire international community violates peremptory rules of international law: J. Brunnée, ‘“Common Interest”: Echoes from an Empty Shell? Some Thoughts on Common Interest and International Environmental Law’, ZaöRV 49 (1989), 791 (804–7). 66 M.C. Bassiouni, ‘International Crimes: “Jus Cogens” and “Obligatio Erga Omnes”’, Law and Contemporary Problems 59 (1996), 63. 67 On jus cogens as manifestation of value-based international law R. Kolb, Théorie du ius cogens international: essai de relecture du concept (Presses Universitaires de France 2001). 68 For human rights see de Wet, ‘Constitutional Order’, 57–60; for international criminal law see M. Weller, ‘Undoing the Global Constitution. UN Security Council Action on the International Criminal Court’, International Affairs 78 (2002), 693; G. Kemp, ‘Constitutionalization and the International Criminal Court: Whither Individual Criminal Liability for Aggression?’ South African Law Journal 125 (2008), 694; for climate change law see M. Schelyi, ‘Der Schutz des Klimas als Prüfstein völkerrechtlicher Konstitutionalisierung?’, Archiv des Völkerrechts 40 (2002), 273 (325–8); for a sceptical position see D. Bodansky, ‘Is There an International Environmental Constitution?’, Indiana Journal of Global Legal Studies 16 (2009), 565. 69 J. Pauwelyn, R. Wessel and J. Wouters, ‘When Structures Become Shackles, Stagnation and Dynamics in International Lawmaking’, EJIL 25 (2014), 733.

Introduction

13

alism’s life cycle is approaching its end,70 or whether the top sedimentary layer of the international legal order is being blown away by current developments.71 More generally, the discipline is debating how to approach foundational challenges to the international legal order in a time of crisis.72 The Russian aggression in Ukraine seems to have contributed to a further weakening of belief in the prospects of an ‘international rule of law’ in international relations.73 Such accounts of the state of international law are partly based on challenges to human rights treaties, the International Criminal Court (ICC) and the climate change regime. While the crisis of international law and the ‘backlash’ against international institutions affect various areas of international law,74 the three issue areas play a pertinent role. The Trump administration’s decision to leave the Human Rights Council in June 2018 demonstrated the scepticism of the world’s leading power towards universal mechanisms for the protection of human rights, at least inside the Republican administration.75 The ICC faced ‘turbulent times’ because Burundi, The Gambia, South Africa and the Philippines declared their withdrawal from the Rome Statute, unhappy with the role the court played in proceedings against them or their neighbours (even though The Gambia and South Africa revoked their notifications of withdrawal).76 The (temporary) US renunciation of the Paris Agreement slowed down initial expectations about a strong global response to climate change.77 H. Cohen, ‘Multilateralism’s Life Cycle’, AJIL 112 (2018), 47. J. Crawford, ‘The Current Political Discourse Concerning International Law’, The Modern Law Review 81 (2018), 1 (21). 72 H. Krieger, G. Nolte and A. Zimmermann (eds), The International Rule of Law: Rise or Decline? – Foundational Challenges (OUP 2019). 73 For a more positive view see however E. Chachko and K. Linos, ‘International Law after Ukraine: Introduction to the Symposium’, AJIL 116 (2022), 124. 74 C. McLachlan, ‘The Assault on International Adjudication and the Limits of Withdrawal’, ICLQ 68 (2019), 499; M.R. Madsen, P. Cebulak and M. Wiebusch, ‘Backlash against International Courts: Explaining the Forms and Patterns of Resistance to International Courts’, International Journal of Law in Context 14 (2018), 197. 75 G. Harris, ‘Trump Administration Withdraws U.S. From U.N. Human Rights Council’, New York Times, 19 June 2018, www​.nytimes​.com/​2018/​06/​19/​us/​politics/​ trump​-israel​-palestinians​-human​-rights​.html; on developments elsewhere, W. Sandholtz, Y. Bei and K. Caldwell, ‘Backlash and International Human Rights Courts. Crisis, Accountability, and Opportunity’, in A. Brysk and M. Stohl (eds), Contracting Human Rights: Crisis, Accountability, and Opportunity (Edward Elgar Publishing 2017), 159; X. Soley and S. Steiniger, ‘Parting Ways or Lashing Back? Withdrawals, Backlash and the Inter-American Court of Human Rights’, International Journal of Law in Context 14 (2018), 237. 76 G. Werle and A. Zimmermann (eds), The International Criminal Court in Turbulent Times (Asser 2019). 77 For some, this was even an indication of a potential ‘breakdown’ of the Paris Agreement: N. Sachs, ‘The Paris Agreement in the 2020s: Breakdown or Breakup’, Ecology Law Quarterly 46 (2019) 865. 70 71

14

Treaties in parliaments and courts

The treaty regimes that were part of the turn to multilateralism and – in the eyes of some observers – even part of the creation of a more value-based international order sailed into rough waters. Against this background, it seems timely to choose such treaties for the study of the interwovenness between foreign relations law and treaties.

1.3

THE POTENTIAL OF THE COMPARATIVE METHOD

The use of the comparative method for descriptive, theoretical or doctrinal ends is not self-understood. Often, scholars distinguish between functionalism and contextualism as the key methodological approaches to comparative law.78 According to the functional approach, a comparative law scholar should analyse how legal doctrines or institutions in different jurisdictions address a certain social issue.79 On this basis, the scholar then should suggest which of the functional equivalents provides the best solution to cope with the social problem.80 Proponents of the contextual approach are more inclined to emphasize the disparate historical, cultural and political traditions of legal doctrines or institutions in different jurisdictions.81 Often, the contextual approach is less application-oriented and linked to a critical stance attacking the functional approach for its assumptions about sameness and its focus on formal rules.82 78 For overviews of other approaches in the rich debate see A.E. Örücü, ‘Methodology of Comparative Law’, in J. Smits (ed.), Elgar Encyclopedia of Comparative Law (Edward Elgar Publishing, 2nd ed. 2012), 560; V. Jackson, ‘Comparative Constitutional Law: Methodologies’, in M. Rosenfeld and A. Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (OUP 2012), 54. 79 K. Zweigert and H. Kötz, An Introduction to Comparative Law (Clarendon, 3rd ed., 1998), 27–48; on this U. Kischel, Comparative Law (OUP 2019), 88–90; for a reconceptualization see R. Michaels, ‘The Functional Method of Comparative Law’, in M. Reimann and R. Zimmermann (eds), The Oxford Handbook of Comparative Law (OUP 2006), 339. 80 Zweigert and Kötz, Law, 27–48. 81 J. Bell, ‘Comparing Public Law’, in A. Harding and E. Örücü (eds), Comparative Law in the 21st Century (Wolters Kluwer 2002), 235; R. Wahl, ‘Verfassungsvergleichung als Kulturvergleichung’, in D. Murswiek, U. Storost and H. Wolff (eds), Staat – Souveränität – Verfassung. Festschrift für Helmut Quaritsch (Duncker & Humblot 2000), 163; I. Spigno, ‘Methodologies of Comparative Constitutional Law: Contextual Approach’, Max Planck Encyclopedia of Comparative Constitutional Law (November 2017), para. 2. 82 G. Frankenberg, ‘Critical Comparisons: Re-Thinking Comparative Law’, Harvard International Law Journal 26 (1985), 411 (434–40); P. Legrand, ‘The Same and the Different’, in P. Legrand and R. Munday (eds), Comparative Legal Studies: Traditions and Transitions (CUP 2003), 240; G. Frankenberg, Comparative Law as Critique (Edward Elgar Publishing 2016); on this see M. Bönnemann and

Introduction

15

This study draws some insights from the functional method but primarily embraces the tradition of the contextual approach. The functional approach convincingly stresses that comparisons need a common point of reference to avoid misleading results.83 Only if one finds a common benchmark for comparison do the findings promise to be meaningful.84 Accordingly, I chose treaties at the international level as the point of reference.85 I examine how parliaments and domestic courts in four states take a position towards certain treaties. Moreover, even though the relationship between the formal rules of foreign relations law and treaties is at its heart, the study does not ignore the political and historical backgrounds of the positions of parliaments and domestic courts. Researchers have highlighted that the relative degree of power,86 regime type,87 historical and legal traditions88 or domestic politics89 might affect a state’s perspective on treaties rather than (or in addition to) the design of the constitutional rules. For instance, a domestic court’s position towards treaties can often not merely be attributed to whether constitutional provisions declare treaties to be directly applicable and supreme or not.90 Against this background, this study neither aims at overstating the impact of foreign relations law on treaties

L. Jung, ‘Critical Legal Studies and Comparative Constitutional Law’, Max Planck Encyclopedia of Comparative Constitutional Law (April 2017), para. 7-10. 83 Zweigert and Kötz, Law, 27–48. 84 Ibid, 27–48. 85 Stressing the potential of international legal rules as benchmark of comparison in comparative international law, see A. Roberts, P. Stephan, P.-H. Verdier and M. Versteeg, ‘Conceptualizing Comparative International Law’, in ibid. (eds), Comparative International Law (OUP 2018), 3 (14). 86 N. Krisch, ‘More Equal that the Rest? Hierarchy, Equality and US Predominance in International Law’, in M. Byers and G. Nolte (eds), United States Hegemony and the Foundations of International Law (CUP 2003), 135 (154–5); R. Kagan, Of Paradise and Power: America and Europe in the New World Order (Atlantic Books 2003). 87 A.-M. Slaughter, ‘International Law in a World of Liberal States’, EJIL 6 (1995), 503; M. Elsig, K. Milewicz and N. Stürchler, ‘Who Is in Love with Multilateralism? Treaty Commitment in the Post-Cold War Era’, European Union Politics 12 (2011), 529 (531–2). 88 D. Zartner, Courts, Codes, and Custom: Legal Tradition and State Policy toward International Human Rights and Environmental Law (OUP 2014); S. Mitchell and E. Powell, Domestic Law Goes Global: Legal Traditions and International Courts (CUP 2011). 89 A. Moravcsik, ‘The Paradox of U.S. Human Rights Policy’, in M. Ignatieff (ed.), American Exceptionalism and Human Rights (Princeton University Press 2005), 147. 90 On the lack of explanatory power of the monism/dualism distinction, Sloss, Domestic Courts, 7–8; D. Bodansky and J. Brunnée, ‘The Role of National Courts in the Field of International Environmental Law’, Review of European, Comparative and International Law 7 (1998), 11 (14).

Treaties in parliaments and courts

16

nor at denying it. Instead, it relates the design of the constitutional rules to the historical and political context in which they operate. But does the embrace of a contextual method conflict with the ambition to make normative arguments about the proper place for the three branches in relation to treaties? Some scholars highlight the genuine difference between legal systems and dismiss the use of comparison for propagating the best legal approach to a certain issue.91 Others reject comparative arguments in the interpretation of constitutional law, precisely because comparative case law sidelines the domestic constitutional and legal traditions and thus the historical and political context of a particular jurisdiction.92 In contrast, this study takes the view that the comparison provides information that might prove beneficial in constitutional theory and doctrine to affirm or challenge entrenched patterns of argumentation.93 In this vein, the descriptive findings may be used to confirm or question underlying assumptions about the proper role of parliament and courts in foreign affairs.94 Even though foreign constitutional doctrines or judgments have no authoritative status in constitutional systems,95 they may inform the interpretation of domestic constitutional law as persuasive authority.96 Because constitutions emerge from specific historical–political contexts,97 comparative interpretation needs to avoid easy transferability. Nonetheless, the ‘other’ may be used to better understand one’s own legal system.98 In this Legrand, ‘Same’, 295–6. See N. Dorsen, ‘The Relevance of Foreign Legal Materials in US Constitutional Cases: A Conversation between Justice Antonin Scalia and Justice Stephen Breyer’, ICON 3 (2005), 519 (521); C. Hillgruber, ‘Die Bedeutung der Rechtsvergleichung für das deutsche Verfassungsrecht und die verfassungsgerichtliche Rechtsprechung in Deutschland’, JöR 63 (2015), 367 (368–70). 93 M.Tushnet, ‘The Possibilities of Comparative Constitutional Law’, Yale Law Journal 108 (1999), 1225 (1308–9); A.-B. Kaiser, ‘“It Isn’t True that England Is the Moon”: Comparative Constitutional Law as a Means of Constitutional Interpretation by the Courts?’ German Law Journal 18 (2017), 293 (294, 307). 94 This study does not suggest to draw conclusions from the ‘is’ for the ‘ought’ but engages with the empirical assumptions of the theoretical debate against the background of the findings; seminal on the ‘is-ought problem’, D. Hume, A Treatise of Human Nature (Clarendon Press 1739), 469–70. 95 On this see M. Tushnet, ‘When Is Knowing Less Better than Knowing More – Unpacking the Controversy over Supreme Court Reference to Non-US Law’, Minnesota Law Review 90 (2005), 1275. 96 S. Fredman, ‘Foreign Fads or Fashions: the Role of Comparativism in Human Rights Law’, ICLQ 64 (2015), 631 (634–5); on ‘dialogical interpretation’, S. Choudhry, ‘Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Law’, Indiana Law Journal 74 (1999), 819 (835–8). 97 Bell, ‘Public Law’, 235; Wahl, ‘Kulturvergleichung’, 163. 98 M. Kotzur, ‘“Verstehen durch Hinzudenken” und/oder “Ausweitung der Kampfzone”? Vom Wert der Rechtsvergleichung als Verbundtechnik’, JöR 63 (2015), 91 92

Introduction

17

sense, constitutional comparison may stabilize existing lines of jurisprudence or uncover doctrinal misconceptions in a specific constitutional system. While a one-size-fits-all approach is implausible, ‘other’ conceptions of foreign relations law invite one to ponder the doctrinal set-up in a particular jurisdiction. Taking a comparative perspective to engage with the impact of the ‘two other voices’ on treaties promises to address open questions. Generally, the study benefits from the scholarly attention that is devoted to comparative approaches to foreign relations law and international law. While the comparative approach has a long tradition in legal scholarship,99 comparison became more popular in the course of the internationalization of legal science in the past 30 years.100 Some influential scholarly collaborations now place the comparative angle at their centre. Comparative foreign relations law and comparative international law aim at comparing how different states or regional organizations devise their foreign relations law and approach international law respectively.101 While comparative foreign relations law compares ‘the domestic law of each nation that governs how that nation interacts with the rest of the world’,102 comparative international law ‘entails identifying, analyzing, and explaining similarities and differences in how actors in different legal systems understand, interpret, apply, and approach international law’.103 While there are many linkages between the two approaches, this study attempts to bring them even closer together. With comparative foreign relations law, it shares the interest in the disparate constitutional rules governing foreign affairs in different countries. On this basis, it explores the respective states’ perspectives towards treaties, a theme of comparative international 355 (356–60; 365); C. Schönberger, ‘Verfassungsvergleichung heute: Der schwierige Abschied vom ptolemäischen Weltbild’, Verfassung und Recht in Übersee 43 (2010), 6 (7). 99 W. Hug, ‘The History of Comparative Law’, Harvard Law Review 45 (1931), 1027; bemoaning too little attention, however, B. Markesinis, ‘Comparative Law – A Subject in Search of an Audience’, Modern Law Review 53 (1990), 1. 100 For the development in public law see M. Tushnet, ‘Comparative Constitutional Law’, in M. Reimann and R. Zimmermann (eds), The Oxford Handbook of Comparative Law (OUP, 2nd ed. 2019), 1193. 101 McLachlan, Foreign Relations; C. Bradley (ed.), The Oxford Handbook of Comparative Foreign Relations Law (OUP 2019); A. Roberts, Is International Law International? (OUP 2017); A. Roberts, P. Stephan, P.-H. Verdier and M. Versteeg (eds), Comparative International Law (OUP 2018); T. Ginsburg, S. Chernykh and Z. Elkins, ‘Commitment and Diffusion: How and Why National Constitutions Incorporate International Law’, University of Illinois Law Review [2008], 201; H. Aust and T. Kleinlein (eds), Encounters between Foreign Relations Law and International Law: Bridges and Boundaries (CUP 2021). 102 Bradley, ‘Foreign Relations’, 3–4. 103 Roberts, Stephan, Verdier and Versteeg, ‘Conceptualizing’, 6.

18

Treaties in parliaments and courts

law. By asking how foreign relations law in four states affects the respective approaches to international (treaty) law it takes comparative foreign relations law as a starting point to answer a key question of comparative international law. Combining the two approaches allows to lay bare direct connections and indirect linkages between the domestic (constitutional) rules and international law in the four states. While ‘scholars in the past have often focused on either foreign relations law or international law’,104 this study emphasizes the interwovenness of the two fields. Furthermore, the study promises to provide insights about the role of parliaments and courts in relation to treaties. In particular, the parliamentary take on treaties seems understudied. No doubt, schemes of the parliamentary treaty-making competences have been comparatively assessed at least since the 1940s.105 However, these studies focus on portraying the differences in parliamentary participation in treaty-making in various jurisdictions. The impact of divergent conceptions of parliamentary participation on a state’s approach to certain treaty regimes has received less attention. While some studies touch on the question of how different domestic rules on the participation of parliament affect a particular state’s prospects of becoming a party to a particular treaty,106 the relationship has not been systematically examined. To address this issue, the first part of this study develops a typology of the legislative approaches to treaties by reference to practices in Germany, India, South Africa and the United States. It distinguishes four roles of the parliamentary chambers or parliamentary groups in opposition. Parliaments act as veto powers, as promoters, as shapers and as translators of treaties. In this context, the study highlights how the two-thirds majority threshold in the US constitution, the simple majority threshold in the German and South African constitution and the non-involvement of parliament in the treaty-making

104 H. Aust and T. Kleinlein (eds), ‘Introduction: Bridges under Construction and Shifting Boundaries’, in ibid (eds), Encounters between Foreign Relations Law and International Law: Bridges and Boundaries (CUP 2021), 1 (6). 105 P. de Visscher, De la conclusion des traités internationaux: Étude de droit constitutionnel comparé et de droit international (Bruyllant 1943); L. Wildhaber, Treaty-Making Power and Constitution: An International and Comparative Study (Helbig & Lichtenhahn 1971); S. Riesenfeld and F. Abbott (eds), Parliamentary Participation in the Making and Operation of Treaties (Martinus Nijhoff 1994); B. Ehrenzeller, Legislative Gewalt und Außenpolitik: eine rechtsvergleichende Studie zu den parlamentarischen Entscheidungskompetenzen des deutschen Bundestages, des amerikanischen Kongresses und der schweizerischen Bundesversammlung im auswärtigen Bereich (Helbing & Lichtenhahn 1993). 106 On the impact of the two-thirds majority threshold on US treaty-making see L. Henkin, ‘US Ratification of Human Rights Conventions: The Ghost of Senator Bricker’, AJIL 89 (1995), 341; Moravcsik, ‘Paradox’, 147.

Introduction

19

process in India contribute to divergent approaches to certain treaties. In particular, it points to the importance of parliamentary participation for allowing the opposition in parliament to develop an alternative model to the executive’s approach to a treaty. At the same time, the study stresses how political factors operate in the context of the respective schemes of parliamentary participation. The theme of domestic courts and international law has received considerable attention in scholarship in the past 20 years. Scholars have assessed the impact of domestic courts on treaty enforcement and incorporation,107 examined their potential role as ‘agents’ of the ‘international rule of law’108 and focused on how domestic courts interpret international law.109 A study group of the International Law Association has systemically mapped divergent perspectives of domestic courts towards international law.110 Building on this research, this study puts a particular focus on how domestic rules on the status of treaties affect judicial decisions concerning treaties. On this basis, Part II of this study proposes an analytical frame for distinguishing between reliance and reluctance in courts’ approaches towards certain treaties focusing on judicial practice from Germany, India, South Africa and the United States. Domestic courts rely on treaties through consistent interpretation, direct application and treating them as evidence for customary international law. At the same time, courts may reject foreign sources or specific decisions by international courts and bodies, dismiss treaty provisions as non-self-executing or employ the concept of non-justiciability in matters of foreign affairs. The study assesses

107 For some key studies see D. Sloss, Domestic Courts; Shelton, Domestic Legal Systems; A. Roberts, ‘Comparative International Law? The Role of National Courts in Creating and Enforcing International Law’, ICLQ 60 (2011), 57. 108 G. Scelle, ‘Règles générales du droit de la paix’, RdC 46 (1933), 331; Nollkaemper, National Courts; A. Tzanakopoulos and C. Tams, ‘Introduction: Domestic Courts as Agents of Development of International Law’, Leiden Journal of International Law 26 (2013), 53; A. Tzanakopoulos, ‘Domestic Courts in International Law: The International Judicial Function of National Courts’, Loyola of Los Angeles International & Comparative Law Review 34 (2011), 133; Y. Shany, ‘“Dedoublement fonctionnel” and the Mixed Loyalties of National and International Judges’, in F. Fontanelli, G. Martinico and P. Carrozza (eds), Shaping Rule of Law through Dialogue: International and Supranational Experiences (Europa Law Publishing 2010), 28. 109 Aust and Nolte, Interpretation. 110 International Law Association, Study Group: Principles on the Engagement of Domestic Courts with International Law, ‘Preliminary Report: Principles on Engagement of Domestic Courts with International Law’, 2012, 9; International Law Association, Study Group on Principles on the Engagement of Domestic Courts with International Law, ‘Final Report: Mapping the Engagement of Domestic Courts with International Law’, 2016, 10; for different terminology see V. Jackson, ‘Constitutional Comparisons: Convergence, Resistance, Engagement’, Harvard Law Review 119 (2005), 109.

20

Treaties in parliaments and courts

how domestic rules on the interpretation and role of international law in the respective domestic legal systems shape these divergent judicial approaches. While the younger literature often dismisses monism and dualism as explanatory models for judicial approaches to treaties,111 this study shows that sometimes it may make a difference whether a constitution contains explicit rules on consistent interpretation or not. At the same time, it warns against overstating the implications of the domestic legal frameworks on the reception of international law, pointing to more political factors which affect the jurisprudence in the respective states. Part III of this study engages with the theoretical and doctrinal discussion about the proper place for parliament and courts in relation to treaties.112 On the basis of the descriptive findings, it rejects the notion that the executive should dominate treaty-making because of its perceived superior expertise since knowledge may often only grow if parliament possesses the competence to participate. In contrast to pointing to the necessity of democratic control over the executive as the traditional justification for parliamentary participation in treaty-making,113 the study underlines the importance of opening discursive space for the opposition to engage with the objectives of the treaty. On the doctrinal level, this study shows that a decision on parliamentary involvement in the treaty-withdrawal process in South Africa provides a model for other states. Moreover, the study rejects the argument that courts should refrain from deciding on the allocation of competences between the political branches in foreign affairs.114 Instead, domestic courts should rely on treaties as an information reservoir for addressing issues of domestic law – also because domestic courts play a pivotal role in enforcing international law. The doctrine of consistent interpretation is key to harmonizing both statutory and constitutional law with a state’s treaty obligations. However, courts should be careful to distinguish between treaty obligations and ‘soft law’ when they develop domestic law. All

111 It has been suggested since the mid-1950s that the debate about monism and dualism is ‘unreal, artificial and strictly beside the point’, G. Fitzmaurice, ‘The General Principles of International Law Considered from the Standpoint of the Rule of Law’, RdC 92 II (1957), 5 (71). 112 For the theoretical discussion see already J. Locke, Second Treatise of Government (1690), sec. 146–8; W. Blackstone, Commentaries on the Laws of England, Book the First (Clarendon Press 1765), 249; C. de Montesquieu, The Spirit of Laws (The Colonial Press 1899), 151 (original published in 1748). 113 See already Publius (A. Hamilton), ‘The Treaty Making Power of the Executive’, The Federalist No. 75; W. Bagehot, The English Constitution (Kegan Paul/Trench/ Trübner Co, 7th ed. 1894), lii, xlvii. 114 For the argument, E. Corwin, The President: Office and Powers, 1787–1948 (New York University Press 1948), 208.

Introduction

21

in all, the study embraces the trend for ‘the two other voices’ to increasingly be heard. It suggests that their voices should even become louder.

PART I

Parliaments When assessing parliamentary perspectives on treaties, one needs to be aware of the institutional and political contexts in which parliaments operate. First, it is important to note that parliamentary committees are imperative to developing the parliamentary stance on issues of foreign affairs.1 In relation to treaties, the parliamentary committee often recommends support or rejection of a treaty and the plenary, most of the time, follows the recommendation. This does not mean, however, that the plenary debate is irrelevant to evaluating the position of parliamentarians towards treaties. In particular in relation to multilateral treaties, different political parliamentary groups may use the occasion of the plenary debate to expose their respective political views on a treaty regime. Accordingly, this part engages with the discussions on the treaties under examination in the respective committees as well as in the plenary. The study draws from full-text search databases of the respective official websites for the plenary debate and committee work of the Bundestag, the plenary debate in the Lok Sabha and the plenary and committee work in the Senate and the House of Representatives (https://​pdok​.bundestag​.de/​; https://​eparlib​.nic​.in/​; https://​www​.congress​.gov/​). In relation to South Africa, I used the database of the Parliamentary Monitoring Group for committee meetings (https://​pmg​.org​ .za/​) and the Hansard for plenary debates (https://​www​.parliament​.gov​.za/​).2

1 McLachlan, Foreign Relations, 181–2; F. Arndt, ‘Völkerrechtsfreundlichkeit und Völkerrechtsskepsis in der politischen Praxis des Deutschen Bundestages’, in T. Giegerich (ed.), Der ‘offene Verfassungsstaat’ des Grundgesetzes nach 60 Jahren: Anspruch und Wirklichkeit einer großen Errungenschaft (Duncker & Humblot 2010), 100 (107–13); more generally on the role of parliaments N. Lupo, ‘Parliaments’, in R. Masterman and R. Schütze (eds), The Cambridge Companion to Comparative Constitutional Law (CUP 2019), 335. 2 On this basis I was able to collect considerable amounts of material in all states, but more on German and US practices. This may partly stem from less legislative pro-

22

Parliaments

23

Second, Germany, India and South Africa are parliamentary systems, whereas the US is a presidential one.3 As a key difference, in a parliamentary system, parliament elects the head of government and may dismiss him or her through a vote of non-confidence, while in a presidential system, the head of government is elected directly and may only be impeached in case of misconduct.4 This means that the political fault line in parliamentary democracies usually does not run between the executive and legislature, but between the governing coalition and the parliamentary opposition.5 In contrast, in the presidential system of the United States, the executive may rather frequently face an opposition majority in parliament because the mid-term elections tend to favour the opposition party.6 These differences need to be kept in mind when assessing parliamentary roles in relation to treaties. The main goal of this part of the study is to develop a typology of how parliaments position themselves towards the treaties discussed here. I suggest that one can distinguish between parliamentary actors as veto players, as promoters, as shapers and as translators. Moreover, I claim that the respective constitutional competences of parliament strongly affect these different roles. First, parliaments may act as veto players, refusing to give consent to treaty projects supported by the executive or lobbying for a limited reach of these treaties in the domestic order. The supermajority threshold in the US, as well as, in rather exceptional cases, the Länder competences in treaty-making under the German constitution explain parliamentary veto player roles (Chapter 2). Second, parliaments and parliamentarians may promote treaty-making by consenting to treaties, by urging joining a treaty regime in a parliamentary debate or by criticizing executive withdrawal action. In Germany and South Africa, and less frequently in the US, the parliamentary chambers pass the approval laws or supportive resolutions on the treaties examined here with broad consent also coming from the opposition. The opposition in parliament becomes particularly important through its push for joining certain treaty duction on the treaties in India and South Africa but also from the fact that the Hansard in South Africa contains no full-text search function and that the committee debates in India are not fully digitalized. 3 See J. Martinez, ‘Horizontal Structuring’, in M. Rosenfeld and A. Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (OUP 2012), 548 (553–60); and the figure in J. Carey, ‘Presidential versus Parliamentary Government’, in C. Ménard and M. Shirley (eds), Handbook of New Institutional Economics (Springer 2005), 91 (93). 4 Martinez, ‘Horizontal Structuring’, 553. 5 T. Jäger, K. Oppermann, A. Höse and H. Viehrig, ‘The Salience of Foreign Affairs Issues in the German Bundestag’, Parliamentary Affairs 62 (2009), 418 (419). 6 Seminal: M. Shugart, ‘The Electoral Cycle and Institutional Sources of Divided Presidential Government’, American Political Science Review (1995), 327.

24

Treaties in parliaments and courts

regimes as an alternative to executive reluctance or by criticizing executive renunciations of treaties. This study shows that parliamentary participation in treaty-making enables the opposition to keep the debate about the advantages of the treaties on the agenda (Chapter 3). Furthermore, under exceptional conditions, a parliamentary chamber’s likely position towards a treaty may even shape the outcome of treaty negotiations at the international level. As the US impact on the Paris Agreement demonstrates, the potential veto player role of a parliamentary chamber (that is, the US Senate) at times limits the options during the international negotiations and dictates the final outcome (Chapter 4). Lastly, parliaments translate treaties into the domestic order through passing implementing legislation with reference to the treaties discussed here. Parliaments may either be prone to take legislative action on the treaties examined in this study as in Germany and South Africa or may opt for a relatively limited translation of the treaties into the domestic order as in the US and India. Once more, the constitutional design partly affects the parliamentary positioning. In Germany and South Africa, the involvement of parliament in treaty-making seems to contribute to considerable legislative implementing action, whereas in India the limited parliamentary debate about the treaties discussed here seems to be connected to its non-involvement in the treaty-making process (Chapter 5). While this study thus suggests that different schemes of parliamentary competences in foreign affairs are crucial for understanding the positioning of the respective states towards the treaties, it warns against overemphasizing the effects of constitutional design. In each chapter, the study points to additional historical and political factors explaining the respective parliamentary approaches.

2. Vetoing Parliaments have the power to render obsolete the executive’s negotiating efforts of on a treaty regime. By blocking the accession to treaties and preventing state membership in a certain treaty regime, a parliament becomes a veto player.1 Because the executive needs the consent of the parliamentary actor in order to change the status quo,2 the actor is in a particularly powerful position and needs to be taken seriously. While the US Senate is known as a veto player par excellence in relation to treaties, vetoes by the Indian, the South African and the German parliament have almost3 never occurred.

2.1

THE QUALIFIED MAJORITY THRESHOLD IN THE US

2.1.1

The Tradition of Senate Rejection

In the US, the strong veto player role of the Senate can be explained through the constitutionalized blocking minority entailing a ‘threshold [for approval of a treaty] higher than that in nearly all other advanced industrial democracies’.4 According to Article II, Section 2, Clause 2 of the constitution, the President has the power to conclude treaties with the ‘Advice and Consent of the Senate’ as long as ‘two thirds of the Senators present concur’. This empowers a minority of 34 of the 100 Senators to block consent to treaties. Ever since the US Senate refused to consent to the Versailles Treaty in 1919, the difficulty of receiving a two-thirds majority for approval of treaties has been a constant theme in US politics. This also applies to the treaties discussed here. As early as the 1950s, some members of Congress successfully prevented US participation in the nascent human rights regime. While binding human rights treaties were negotiated at the UN level, Republican Senator John Bricker sponsored

1 K. Oppermann and K. Brummer, ‘Veto Player Approaches in Foreign Policy Analysis’, in C. Thies (ed.), The Oxford Encyclopedia of Foreign Policy Analysis, Vol II (OUP 2018), 807. 2 G. Tsebelis, ‘Veto Players and Law Production in Parliamentary Democracies: An Empirical Analysis’, American Political Science Review (1999), 59. 3 For a single example see Arndt, ‘Praxis’, 109. 4 Moravcsik, ‘Paradox’, 187.

25

26

Treaties in parliaments and courts

the so-called Bricker amendment to the US constitution that was supposed to enshrine that the executive may not enter into treaties in conflict with the constitution, that all treaties need congressional implementing legislation, and that Congress could reject executive agreements.5 According to his own words, Bricker intended ‘to bury the so-called covenant on human rights so deep so that no-one holding high public office will ever dare to attempt its resurrection’.6 Bricker suggested that ‘reactionary one-worlders [are] trying to vest legislative powers in non-elected officials of the UN and its satellite bodies with a socialist-communist majority’.7 Moreover, like other Republicans and Southern Democrats, Bricker feared that human rights treaties might be used to extend the federal government’s competences for addressing racial segregation in the South.8 Bricker’s opposition was partly successful. Even though the Eisenhower administration rejected Bricker’s proposal and the required amendment majority was not reached, the 52 votes in favour and 40 against demonstrate that a majority of Senate members was concerned about the impact of human rights treaties on the domestic legal order. Secretary of State Dulles needed to promise that the US would not join binding human rights treaties to appease conservative Republicans and Southern Democrats.9 A state department circular stressed that ‘[t]reaties are not to be used as a device for the purpose of effecting internal social changes or to try to circumvent the constitutional procedures established in relation to what are essentially matters of domestic concern’.10 Accordingly, the Eisenhower administration stopped participating in the negotiations on the Covenants.11 The senatorial opposition to human rights treaties remained a standard trope of US foreign policy. When in the 1970s President Jimmy Carter attempted 5 D. Tananbaum, The Bricker Amendment Controversy: A Test of Eisenhower’s Political Leadership (Cornell University Press 1988), 32–49; C. Bradley and J. Goldsmith, ‘Treaties, Human Rights, and Conditional Consent’, University of Pennsylvania Law Review 149 (2000), 399 (412–13). 6 Cited after Tananbaum, Bricker, 25. 7 Cited after N. Kaufman and D. Whiteman, ‘Opposition to Human Rights Treaties in the United States Senate: The Legacy of the Bricker Amendment’, Human Rights Quarterly 10 (1988), 309 (313). 8 D. Golove, ‘Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power’, Michigan Law Review 98 (2000) 1075 (1273–4); O. Hathaway, ‘Treaties’ End: The Past, Present, and Future of International Lawmaking in the United States’, Yale Law Journal 117 (2008), 1236 (1303). 9 See Statement by Secretary of State Dulles, in Treaties and Executive Agreements: Hearings Before a Subcomin. of the Senate Comm. on the Judiciarv 825 (1953). 10 U.S. State Department Circular No. 175, 13 December 1955, 2, reprinted in AJIL 50 (1956), 784 (785). 11 K. Sikkink, Mixed Signals: U.S. Human Rights Policy and Latin America (Cornell University Press 2018), 41–2.

Vetoing

27

to morally reground US foreign policy in response to the Watergate scandal and the Vietnam War and submitted the ICCPR, ICESCR, CERD and the American Convention on Human Rights (ACHR) to the Senate, none of these treaties received Senate approval. Even though Secretary of State Cyrus Vance promised to attach broad reservations, understandings and declarations (RUDs) to ‘harmonize the treaties with existing provisions of domestic law’,12 the Senate Foreign Relations Committee did not take action after the hearing.13 2.1.2

The ‘Gingrich Revolution’, the ‘Culture Wars’ and Human Rights Treaties

This changed somewhat with the end of the Cold War. During the presidency of George H.W. Bush and Bill Clinton, the Senate provided consent to the ICCPR, CAT and CERD. Nonetheless, despite promising a turn to international human rights at the 1993 Vienna Conference,14 the Clinton administration was only able to receive Senate consent to CERD shortly after the conference. CERD came to be the last major UN human rights treaty that was ratified by the US. In contrast, CEDAW and the CRC did not receive the required two-thirds majority approval by US Senators. The senatorial reluctance to endorse CEDAW and CRC stemmed from the growing Republican scepticism towards human rights treaties since the mid-1990s, which exacerbated the prospects of passing the two-thirds majority threshold. In this context, the impact of the so-called Gingrich Revolution or Republican Revolution during the first term of Bill Clinton’s presidency can hardly be overstated. Based on the ‘Contract with America’, a Republican legislative agenda written by House Members Newt Gingrich and Dick Armey, Republicans won control of both the Senate and the House of Representatives for the first time since the 1950s.15 Even though the ‘Contract’ mostly pertained to shrinking the size of government, promoting lower taxes and enabling entre12 W. Christopher, ‘Letter of Submittal to the President of the United States’, in Four Treaties Pertaining to Human Rights, S. Exec. Doc. C, D, E, & F, 95th Cong., 2d Sess. (23 February 1978), vi; see also J. Parry, ‘Torture Nation, Torture Law’, Georgetown Law Journal 97 (2008), 1001 (1035–6). 13 Kaufman and Whitman, ‘Opposition’, 329–34; D. Sloss, ‘The Domestication of International Human Rights: Non-Self-Executing Declarations and Human Rights Treaties’, Yale Journal of International Law 24 (1999), 129 (139–40); D. Weissbrodt, ‘United States Ratification of the Human Rights Covenants’, Minnesota Law Review 63 (1978), 35 (36). 14 Christopher, ‘Human Rights’, 72. 15 A. Royden, ‘U.S. Climate Change Policy Under President Clinton: A Look Back’, Golden Gate University Law Review 32 (2002), 415 (423); L. Gould, The Republicans. A History of the Grand Old Party (OUP 2014), 320–2; D. Critchlow,

28

Treaties in parliaments and courts

preneurship, it helped to bring more conservative Republicans such as Jim Inhofe and Rick Santorum to the Senate. Holding traditional views on social issues such as abortion, homosexuality and the role of women, they supported key issues for evangelical Republican voters in the ongoing ‘culture wars’ between ‘traditionalists’ and ‘progressives’.16 Also, these Republicans were often supported by grassroots organizations that advocated non-ratification of human rights treaties. For instance, conservative religious and pro-family groups successfully lobbied Senators to not consent to the CRC.17 These groups criticized the CRC as ‘the most dangerous attack on parents’ rights in the history of the United States’18 or as a ‘grab [by the UN] for power over education’.19 Anti-feminist Phyllis Schlafly, founder of the pro-life Eagle Forum, explicitly praised certain members of Congress for taking an assertive stance in opposing the treaty.20 With the 1994 mid-term election, Republicans won the majority in the Senate Foreign Relations Committee, which guides the senatorial decision-making process on Article II treaties. With Jesse Helms as the new chairman of the Committee, one of the fiercest critics of human rights treaties was in a position to determine the legislative agenda on them. In the 1991 hearings on the ICCPR, Helms was among the few members in attendance who dismissed the convention as ‘seriously flawed’ for exposing the US to criticism by autocratic regimes and being at odds with the US constitution.21 The election of Helms to the Foreign Relations Committee as chairman, and that of more conservative politicians to the Senate, turned the tide for human rights treaties. In spring 1993, 68 Senators promised in a letter to Clinton that they would ratify CEDAW – if submitted – signalling that a two-thirds majority requiring 67 votes had formed.22 The Foreign Relations Committee approved CEDAW with 13 votes in favour to five opposed after the Senate hearings in 1994, but the treaty was not passed on to the full Senate, because Republican

The Conservative Ascendancy: How the GOP Right Made Political History (Harvard University Press 2009), 243–7. 16 J. Hunter, Culture Wars: The Struggle to Define America (Basic Books 1991). 17 S. Kilbourne, ‘Placing the Convention on the Rights of the Child in an American Context’, Human Rights 26 (1999), 27 (28–9). 18 Cited after L. Blanchfield, ‘The United Nations Convention on the Rights of the Child’, Congressional Research Service, 1 April 2013, 1 fn 88. 19 P. Schlafly, ‘The New World Order Wants Your Children’, The Phyllis Schlafly Report 26 (1993), https://​eagleforum​.org/​psr/​1993/​mar93/​psrmar93​.html. 20 Ibid. 21 International Covenant on Civil and Political Rights: Hearing Before the Senate Committee on Foreign Relations, 102d Cong., 1st Sess., 21 November 1991, 1. 22 L. Baldez, Defying Convention: US Resistance to the UN Treaty on Women’s Rights (CUP 2014), 167.

Vetoing

29

Senators planned to decide the matter after the mid-term elections.23 With the ‘Gingrich Revolution’, the domestic treaty-making process on CEDAW was brought to an end. The newly elected eight Republicans in the Senate did not signal any inclination to support the treaty. More importantly, in his time as chairman of the Senate Foreign Relations Committee from 1995 to 2001, Senator Helms prevented consideration of the treaty.24 As a reaction against pro-ratification activism, Senator Helms sponsored Senate Resolution 307 ‘expressing the sense of the Senate with respect to mother’s day that the United States should reject [CEDAW] as it demeans motherhood and undermines the traditional family’.25 CEDAW would be ‘incompatible with the tradition and policy of the United States to uphold motherhood and to regard motherhood with the highest degree of honor and respect’.26 In a statement, he criticized the treaty for having been ‘clearly negotiated by radical feminists with the intent of enshrining their radical anti-family agenda into international law’, stressing that the treaty ‘will never see the light of day on my watch’.27 Moreover, Helms lobbied against CRC ratification with similar assertive language. In 1995, Helms introduced Resolution 133 together with 26 Republican cosponsors declaring the CRC to be ‘incompatible with the God-given right and responsibility of parents to raise their children’ and urging the President not to sign the treaty.28 In a statement, Senator Helms condemned the CRC as ‘yet another attempt, in a growing list of United Nations ill-conceived efforts, to chip away at the U.S. Constitution’ and stressed that the treaty would not receive a hearing during his chairmanship in the Foreign Relations Committee.29 Even after Helms retired in the early 2000s, ratification efforts failed. While the Bush II administration did not push for the ratification of major UN human rights treaties, the Obama administration declared it would prioritize human rights treaty ratifications and support US ratification of the CRC, CEDAW and the Convention on the Rights of Persons with Disabilities (CRPD). However, the linking of UN human rights treaties to the ‘culture wars’ and the long-term effects of the ‘Gingrich Revolution’ continued to forestall US ratification of such treaties.30 Even though the Obama administration closely Ibid, 169–70. Ibid, 172–6. 25 S. Res. 307, Congressional Record, 11 May 2000, p.S3926. 26 Ibid. 27 Cited after Baldez, CEDAW, 175. 28 S. Res. 133, 104th Congress (1995–6), 14 June 1995. 29 Cited after S. Kilbourne, ‘Closing Remarks’, Journal of Civil Rights and Economic Development 14 (2000), 457 (465). 30 Generally, on the influence of party politics on treaty-making during the Obama administration, J. Peake and G. Krutz and T. Hughes, ‘President Obama, the Senate, and the Polarized Politics of Treaty Making’, Social Science Quarterly 93 (2012), 1295. 23 24

30

Treaties in parliaments and courts

monitored which reservations, declarations and understandings might soothe concerns in the Senate,31 the efforts did not lead anywhere. The Christian organization ‘Concerned Women for America’ staged a successful campaign against the ratification of CEDAW under the slogan ‘Save Mother’s Day From the UN!’32 ‘Concerned Women for America’ claimed that the CEDAW Committee had criticized states for celebrating Mother’s Day, asked for the decriminalization of prostitution, spoken out in favour of facilitated access to abortion and proposed to include non-stereotypical gender roles in school books.33 Because CEDAW would ‘impact every aspect of life and place Americans under the supervision of a U.N. committee of “gender experts”’,34 supporters should ‘[t]ell [their] senators to oppose CEDAW’.35 In a hearing on CEDAW in the Senate in 2010, the Republican witness Steven Groves from the Heritage Foundation, a conservative think tank, built on these arguments. Groves put forward that Americans should not trust ‘gender experts sitting on the CEDAW Committee’ who ‘for 30 years established a consistent record of promoting gender-related policies that do not comport with existing American legal and cultural norms’.36 The fate of the CRC was similar. Anti-CRC groups mobilized select states with Republican majorities to adopt anti-CRC resolutions to counter growing support for children’s rights under the Obama administration.37 In May 2010, 30 Republican Senators sponsored Resolution 519 calling on President Obama not to send the CRC to the Senate for ratification, because the CRC ‘undermines traditional principles of law in the United States regarding parents and children’.38 In 2008, some Republicans had proposed the adoption of a Parental Rights Constitutional Amendment stressing the ‘liberty of parents to direct the upbringing, education, and care of their children’ and highlighting that ‘[n]o

31 On the CRC Hearing before the Committee on Foreign Relations, ‘Nomination of Hon. Susan E. Rice to be U.N. Representative’, S. Hrg. 111-257, 15 January 2009, 39. 32 Concerned Women for America, Legislative Action Committee, ‘Save Mother’s Day From the UN!’, 12 May 2010, https://​concernedwomen​.org/​save​-mothers​-day​ -from​-the​-un/​. 33 Ibid. 34 Ibid. 35 Ibid. 36 Hearing before the United States Senate, Committee on Foreign Relations on CEDAW, Prepared Statement of Steven Groves, 18 November 2010, 1; 3, www​ .judiciary​.senate​.gov/​imo/​media/​doc/​10​-11​-18​%20Groves​%20Testimony​.pdf. 37 Tennessee House Joint Resolution 369, 3 March 2010; Oklahoma House Concurrent Resolution 1033, 13 May 2009. 38 S. Res. 519, 111th Congress (2009–10), 10 May 2010; see also S. Res. 99, 112th Congress (2011–12), 10 March 2011.

Vetoing

31

treaty may be adopted nor shall any source of international law be employed to supersede, modify, interpret, or apply to the rights guaranteed by this article’.39 According to press reports, Michael Farris, the founder of the influential Home Schooling Defense League, helped draft the Amendment.40 While CEDAW and the CRC were not even voted on, a minority in the Senate successfully blocked the CRPD. The President had submitted the CRPD to the Senate in May 2012 on the basis of a federalism reservation limiting the US obligations to the federal level, a private conduct reservation excepting private conduct from the CRPD’s reach and a non-self-execution declaration.41 The Senate Committee on Foreign Relations passed the CRPD to the full Senate by a vote of 13 to 6.42 The Committee agreed to propose additional understandings according to which the CRPD Committee has no authority to compel action by state parties, and the CRPD has to be understood not to provide health services (meaning abortion related services) and may not be construed to change the interpretation of the ‘best interest of the child’ standard under US law.43 Also, the Foreign Relations Committee suggested to add a declaration according to which US law ‘generally fulfills or exceeds’ the Convention’s obligations.44 Despite these broad RUDs, the CRPD fell five votes shy of receiving the necessary 66 votes in the Senate.45 The support of all 55 Democratic and 6 Republican Senators was not enough to cross the supermajority threshold.46

39 H.J. Res 97, 110th Congress (2007–8), 26 June 2008; House Joint Res. 110, 112th Congress (2011–12), 5 June 2012; Senate Joint Resolution 42 112th Congress (2011–12), 5 June 2012. S.J. 36, 114th Congress (2015–16), 29 June 2016. 40 The Politico, ‘Parental Rights: The New Wedge Issue’, 8 April 2009, www​ .cbsnews​.com/​news/​parental​-rights​-the​-new​-wedge​-issue/​. 41 Message from the President of the United States, Convention on the Rights of Persons with Disabilities, Treaty Doc. 112-7, 17 May 2012; L. Blanchfield and C. Brown, ‘The United Nations Convention on the Rights of Persons with Disabilities: Issues in the US Ratification Debate’, Library of Congress, Congressional Research Service (21 January 2015), 5–6. 42 Committee on Foreign Relations, Press, In Bi-Partisan Vote, Foreign Relations Committee Passes Disability Treaty, 26 July 2012. 43 112th Congress, Senate Exec. Report 112-6, ordered to be printed 31 July 2012, 13–16; Blanchfield and Brown, ‘CRPD’, 8. 44 Ibid, 14, 17. 45 61 senators voted in favour, while 38 opposed the treaty (with one not voting),US Senate, Roll Call Vote 112th Congress – 2nd Session, 4 December 2012, www​.senate​ .gov/​legislative/​LIS/​roll​_call​_lists/​roll​_call​_vote​_cfm​.cfm​?congress​=​112​&​session​=​2​ &​vote​=​00219. 46 Ibid; for another failed attempt in 2014 containing a home schooling reservation, 113th Congress, Senate Exec-Rept 113-12, ordered to be printed 28 July 2014, 11; 23; 26.

32

Treaties in parliaments and courts

In the Senate hearing on the CRPD, Steven Groves from the Heritage Foundation linked the treaty to the issue of abortion because it protects the ‘sexual and reproductive health’ of persons with disabilities (Article 25 of the CRPD). He argued that an ‘“international” opinion on the matter [of abortion] from a group of disability experts ensconced in Geneva is unlikely to resolve or advance the debate in the United States’.47 Accordingly, the Republican minority in the Senate Committee on Foreign Relations recalled that ‘[a]bortion remains a highly controversial issue in the United States’ that should not be ‘determined […] at an international level’.48 The other Republican witness Michael Farris suggested on behalf of the Home School Legal Defense Association that the CRPD will lead to ‘the loss of educational freedom for all parents in the Nation with disabled children’.49 Instead, ‘[g]overnment, not parents, will decide what form of education is best for children’.50 The failed ratification of the CRPD is also linked to the ‘Gingrich Revolution’. In the debate about the CRPD, Senators who had become members of the Senate in 1994 were key opponents of the treaty. Rick Santorum, Senator for Pennsylvania from 1995 to 2007, argued prior to the vote that the treaty’s ‘best interest of the child standard’ could mean that parents could no longer decide what is best for their children with disabilities.51 Jim Inhofe, Senator of Oklahoma since 1994, stressed that the ‘treaty threatens U.S. sovereignty through the establishment of the unelected U.N. bureaucratic bodies’.52 The CRPD Committee would pass ‘so-called “recommendations” that would be forced upon the U.S. as a signatory’.53 Despite pleas by Republicans like Senator Bob Dole and Senator John McCain for the approval of the treaty, Inhofe’s views were shared by 37 Republicans who voted against CRPD approval.54 More generally, the ‘Gingrich Revolution’ changed the perspective of the Grand Old Party (GOP) on human rights treaties. While the 1992 Republican Party Platform had been silent on multilateral treaties, the 1996 version prom47 Hearing before the United States Senate, Committee on Foreign Relations on CRPD, Prepared Statement of Steven Groves, 21 July 2012, 9, www​.foreign​.senate​ .gov/​imo/​media/​doc/​Steven​_Groves​_Testimony​.pdf. 48 Minority views of Senators Corker, Risch, Rubio and Johnson, Senate Executive Report 113-12, 113th Congress, 2nd session, 28 July 2014. 49 Senate Executive Report 113-12, 113th Congress, 2nd session, 28 July 2014. 50 Ibid. 51 R. Sanatorum, ‘This Treaty Crushes U.S. Sovereignty’, World Net Daily, 2 December 2012, www​.wnd​.com/​2012/​12/​this​-treaty​-crushes​-u​-s​-sovereignty/​. 52 J. Inhofe, ‘Inhofe Praises Senate Rejection of CRPD’, 4 December 2012, www​ .inhofe​.senate​.gov/​newsroom/​press​-releases/​inhofe​-praises​-senate​-rejection​-of​-crpd. 53 Ibid. 54 Blanchfield and Brown, ‘CRPD’, 9.

Vetoing

33

ised that a ‘Republican president will withdraw from Senate consideration any pending international conventions or treaties that erode the constitutional foundations of our Republic and will neither negotiate nor submit such agreements in the future’.55 From then on, scepticism towards certain treaties became a common theme in the party manifestos. The 2008 Republican Party Platform explicitly rejected CEDAW and the CRC arguing that ‘the UN has no mandate to promote radical social engineering’.56 Similarly, the 2016 Republican Party Platform (which was reused for 2020)57 explicitly dismissed CEDAW, the CRC and the CRPD.58 The sceptical view remained prevalent among Republican lawmakers during the Trump presidency. Republican Senator Risch of Idaho, chairman of the Senate Foreign Relations Committee since 2019, had expressed his reluctance to join multilateral treaties already in 2012. Risch suggested that new multilateral treaties ‘seek to subject U.S. laws and citizens not to the U.S. Constitution, but to the judgments of international courts, appointed commissions and U.N. bureaucracies’.59 Such international oversight would ‘undermine […] the freedom of all Americans’.60 All in all, there exists ample evidence that the two-thirds majority threshold is one of the key reasons for the poor US ratification record on human rights treaties. A minority of conservative Senators blocked ratification of the CRC, CEDAW and CRPD. The Senate reluctance stems from the perceived link between these treaties and the US ‘culture wars’.61 Christian conservative lobby groups successfully claimed that ratifying human rights treaties meant taking the side of the ‘progressive’ or ‘liberal’ position in that debate. According to the groups, the ‘undemocratic’ and ‘progressive’ UN bodies should not have a say on social issues such as home schooling, abortion and the self-emancipation of women from traditional gender roles. The two-thirds majority threshold provided the entry point for conservative lobby groups to be heard by the Senate minority, which then exercised its veto power.

55 Republican Party Platform, 12 August 1996, www​.presidency​.ucsb​.edu/​ documents/​republican​-party​-platform​-1996. 56 Republican Party Platform, 1 September 2008, www​.presidency​.ucsb​.edu/​ documents/​2008​-republican​-party​-platform. 57 R. Epstein, ‘The G.O.P. Delivers Its 2020 Platform. It’s From 2016’, 25 August 2020, www​.nytimes​.com/​2020/​08/​25/​us/​politics/​republicans​-platform​.html. 58 Republican Party Platform, 18 July 2016, www​.presidency​.ucsb​.edu/​documents/​ 2016​-republican​-party​-platform. 59 J.E. Risch, ‘Treaties Must Not Harm America’s Sovereignty’, 30 November 2012, www​.risch​.senate​.gov/​public/​index​.cfm/​2012/​11/​treaties. 60 Ibid. 61 On the culture wars, A. Hartman, A War for the Soul of America: A History of the Culture Wars (University of Chicago, 2nd ed. 2019).

Treaties in parliaments and courts

34

2.1.3

The Rome Statute, the Kyoto Protocol and Bipartisan Scepticism

The election of Senator Helms as chairman of the Foreign Relations Committee also left its mark on the senatorial debate on the ICC. Helms was a fierce critic of the idea of a permanent criminal court. Already in January 1994, Helms had sponsored an amendment to the Foreign Relations Authorization Act that was supposed ‘to strike all language […] relating to support for an International Criminal Court’.62 According to Helms, the ICC was an ‘unwise and very dangerous proposal’ because it would conflict with US sovereignty as an ‘constitutionally impermissible assault on the basic liberties’ of the American people.63 His amendment, which failed but garnered the support of 45 Senate members,64 foreshadowed his future rejection of the ICC. After his election as chairman, Helms made clear that the Senate would not give its advice and consent to the Rome Statute. In a letter to Secretary of State Madeleine Albright written two months before the Rome Conference, Helms stated that he was ‘unalterably opposed to the creation of a permanent U.N. criminal court’, which would be ‘dead-on-arrival’ in the Foreign Relations Committee.65 After the Clinton administration’s decision not to support the final document negotiated at the Rome Conference, Helms criticized the ‘irreparably flawed’ Rome Statute for enabling the Court ‘to sit in judgment of the United States foreign policy’.66 Since the Court would supposedly threaten US military personnel and US national interests, assertive action should be taken such as reconsidering the stationing of forces in signatory states, concluding bilateral treaties prohibiting the extradition of US citizens to the ICC and not allowing US soldiers to participate in peacekeeping operations.67 In an article in the

S. Amdt.1254 to S.1281, 103rd Congress (1993–4), 26 January 1994. 140 Cong Rec. S96-01, S101, 26 January 1994, 215. 64 Roll Call Vote 103rd Congress – 2nd Session, 26 January 1994, www​.senate​ .gov/​legislative/​LIS/​roll​_call​_lists/​roll​_call​_vote​_cfm​.cfm​?congress​=​103​&​session​=​2​ &​vote​=​00003. 65 Cited after B. Crossette, ‘Helms Vows to Make War on U.N. Court’, The New York Times, 27 March 1998, www​.nytimes​.com/​1998/​03/​27/​world/​helms​-vows​-to​ -make​-war​-on​-un​-court​.html. 66 Hearing Before the Subcommittee on International Operations of the Committee on Foreign Relations of the United States Senate, 105th Cong. 2nd. Sess., S. Hrg. 105-724, 23 July 1998, 9, www​.govinfo​.gov/​content/​pkg/​CHRG​-105shrg50976/​html/​ CHRG​-105shrg50976​.htm. 67 Ibid. 62 63

Vetoing

35

Financial Times, Helms suggested that the US should ‘bring [the Court] down’ and ‘slay this monster’.68 When the Clinton administration hesitantly signed the Rome Statute in early 2001,69 Helms declared that ‘reversing this decision, and protecting America’s fighting men and women from the jurisdiction of this international kangaroo court [will be] one of my highest priorities in the new Congress’.70 For him, the ‘brazen assault on the sovereignty of the American people is without precedent in the annals of international treaty law.’71 The rejection of the Rome Statute, however, was not limited to Republican lawmakers.72 While Helms and some of his party colleagues targeted the ICC with especially dismissive rhetoric, Democratic Senators opposed the Rome Statute as well. In the 1998 hearing on the Rome Statute, Democratic Senator Joe Biden expressed his support for the US negotiators’ rejection of the statute and warned of potential consequences of the ICC’s jurisdiction over non-parties for US soldiers.73 Biden proposed that the US government should start discussions with its allies about the respective status of forces agreements to pressure them to take seriously US concerns about the Court.74 Democratic Senator Dianne Feinstein critically inquired whether the provision declaring the deportation of civilian population by an occupying power to be a war crime was directed against Israel.75

68 J. Helms, ‘We Must Slay This Monster: Voting Against the International Criminal Court Is Not Enough. The U.S. Should Try to Bring It Down’, Financial Times, London, 31 July 1998. 69 The Clinton administration signed the Rome Statute in the 1990s with no intention to submit it to the Senate, President Clinton, ‘Statement on the Rome Treaty on the International Criminal Court’, 31 December 2000, Weekly Comp. Pres. Doc. 37 (8 January 2001) 4, www​.govinfo​.gov/​content/​pkg/​WCPD​-2001​-01​-08/​pdf/​WCPD​-2001​ -01​-08​-Pg4​.pdf. 70 T. Ricks, ‘U.S. Signs Treaty on War Crimes Tribunal’, 1 January 2001, Washington Post, www​.washingtonpost​.com/​archive/​politics/​2001/​01/​01/​us​-signs​ -treaty​-on​-war​-crimes​-tribunal/​b87dbd25​-9b41​-42df​-aa26​-c7bbb484f142/​?noredirect​=​ on. 71 J. Helms, ‘Towards a Compassionate Conservative Foreign Policy’, Address before the American Enterprise Institute, 11 January 2001, www​.aei​.org/​research​ -products/​speech/​towards​-a​-compassionate​-conservative​-foreign​-policy/​. 72 On this see J. Goldsmith, ‘The Self-Defeating International Criminal Court’, The University of Chicago Law Review 70 (2003), 89 (97–8). 73 Hearing Before the Subcommittee on International Operations of the Committee on Foreign Relations of the United States Senate, 105th Cong. 2nd Sess., S. Hrg. 105-724, 23 July 1998, 9, www​.govinfo​.gov/​content/​pkg/​CHRG​-105shrg50976/​html/​ CHRG​-105shrg50976​.htm. 74 Ibid, 9. 75 Ibid, 9.

Treaties in parliaments and courts

36

Congress soon passed bipartisan legislation that was supposed to shield US soldiers from the ICC’s jurisdiction. Since June 2000, Congress had debated the American Servicemembers’ Protection Act.76 The Act passed both houses after the election of President George W. Bush and was signed into law in August 2002. The Act prohibited government officials from cooperating with the ICC, allowed US participation in peacekeeping missions only if the concerned state exempted US soldiers from persecution, banned military assistance to parties of the Rome Statute (with the exception of major allies) and authorized the use of ‘all means necessary and appropriate’ to free US government employees from detainment in ICC facilities.77 While the Act had been introduced in the Senate by Helms and in the House by his Republican colleague Tom DeLay, a substantial number of Democratic members of Congress endorsed the law. In the Senate, the Act received 75 votes in favour (among them 30 from Democratic Senators) and 19 against.78 In Bush’s second term the relationship of the US administration to the ICC started to evolve from resistance to hesitant engagement (in particular in relation to the situation in Sudan).79 The Republican Party nonetheless continued to explicitly position itself against the institution. The 2008 Republican Party Platform argued that US soldiers need to be shielded from ‘ideological prosecutions’.80 Two years later, Republican Senate and House members sponsored a ‘Sense of Congress’ resolution suggesting that the US should neither sign the Rome Statute nor participate in the Kampala Review Conference because the Rome Statute ‘undermines the sovereignty of the United States, hinders its ability to defend itself and its allies with military force, and conflicts with the principles of the United States Constitution’.81 The 2016 Republican Party 106th Congress, 2nd Session, H.R. 4654; S. 2726. American Servicemembers’ Protection Act, Public Law No. 107-206, sec 2001-2015, 116 Stat 899-909, 2 August 2002; L. Faulhaber, ‘American Servicemembers’ Protection Act of 2002’, Harvard Journal on Legislation 40 (2003), 537; S. Murphy, ‘American Servicemembers' Protection Act’, AJIL 96 (2002), 975. 78 Roll Call Vote 107th Congress – 2nd Session, 6 June 2002, www​.senate​.gov/​ legislative/​LIS/​roll​_call​_lists/​roll​_call​_vote​_cfm​.cfm​?congress​=​107​&​session​=​2​&​vote​ =​00140. 79 On this see M. Jorgensen, American Foreign Policy Ideology and the International Rule of Law (CUP 2020), 191–219; D. Bosco, Rough Justice: The International Criminal Court in a World of Power Politics (OUP 2014), 108–38; M. Groenleer, ‘The United States, the European Union, and the International Criminal Court: Similar values, different interests?’ ICON 13 (2015), 923 (931). 80 Republican Party Platform, 1 September 2008, www​.presidency​.ucsb​.edu/​ documents/​2008​-republican​-party​-platform. 81 S. Con. Res. 59, 111th Congress (2009–10), 21 April 2010; H. Con. Res. 265, 111th Congress (2009–10), 21 April 2010; the Resolution was supported by three other Republican Senators, among them Senator Inhofe and 35 members of the House. 76 77

Vetoing

37

Platform continued to reject the jurisdiction of the ICC since ‘our service members must be subject only to American law’.82 The Trump administration’s orchestration of an attack against the ICC in response to a potential investigation of the situation in Afghanistan and war crimes committed by US soldiers fell on fertile ground. The visa restrictions for ICC officials directly engaged with investigating US personnel, including ICC Prosecutor Fatou Bensouda,83 were not challenged by Republican lawmakers. The approach by the Democratic Party was less hostile. Some Democratic members of Congress suggested using the Court as an ad hoc institution for addressing crimes committed, for example, in Syria and in Myanmar.84 But they usually did not urge the executive to work towards US ratification of the Rome Statute. When in 2020 a Democratic House member called for US ratification of the Rome Statute,85 this was a minority position. The 2020 Democratic Party Platform promised reengagement with international institutions after the Trump presidency, but the US relationship to the ICC was not addressed.86 The newly elected Biden administration revoked visa restrictions for ICC personnel but expressed its disagreement with the Office of the Prosecutor’s investigations into the Afghanistan and the Israeli/Palestinian situation and offered to co-operate with the ICC only in ‘exceptional cases’.87 The Russian aggression in Ukraine somewhat improved the relationship with the ICC.88 In a ‘Sense-of-Senate’ resolution condemning the Russian aggression, a bipartisan Congress referred to the ICC as an ‘international tribunal that seeks to uphold the rule of law, especially in areas where no rule of law exists’.89 Congress also added an exception to the American Servicemembers’ 82 Republican Party Platform, 18 July 2016, www​.presidency​.ucsb​.edu/​documents/​ 2016​-republican​-party​-platform. 83 M. Pompeo, ‘Actions to Protect U.S. Personnel from Illegitimate Investigation by the International Criminal Court’, 2 September 2020, https://​2017​-2021​.state​.gov/​ actions​-to​-protect​-u​-s​-personnel​-from​-illegitimate​-investigation​-by​-the​-international​ -criminal​-court/​index​.html; on this J. Galbraith, Contemporary Practice of the United States Relating to International Law, AJIL 114 (2020), S. 757 (775–7). 84 H. Res. 229, 113th Congress (2013/14), 21 May 2013; Senate Resolution 360, 115th Congress, 13 December 2017. 85 H. Res. 855, 116th Congress (2019–20), 12 February 2020. 86 2020 Democratic Party Platform, 18 August 2020, https://​democrats​.org/​where​ -we​-stand/​party​-platform/​. 87 S. Lewis, ‘Biden Administration to Review Sanctions on International Criminal Court Officials’, 26 January 2021, www​.reuters​.com/​article/​us​-usa​-biden​-icct​ -idUSKBN29V2NV. 88 T. Buchwald, ‘Unpacking New Legislation on US Support for the International Criminal Court’, 9 March 2023, www​.justsecurity​.org/​85408/​unpacking​-new​ -legislation​-on​-us​-support​-for​-the​-international​-criminal​-court/​. 89 S. Res 546, 117th Congress (2021–2), 15 March 2022.

Treaties in parliaments and courts

38

Protection Act enabling the United States to ‘render […] assistance to the International Criminal Court to assist with investigations and prosecutions of foreign nationals related to the Situation in Ukraine, including to support victims and witnesses’.90 In 2023, a bipartisan resolution was introduced in the House and the Senate condemning the alleged kidnapping of Ukrainian children by Russia with reference to the ICC’s arrest warrant against Vladimir Putin.91 However, looking beyond the special situation of the Ukraine, it seems that scepticism towards the Afghanistan investigation remains pertinent. In relation to the international climate protection efforts, the opposition to the Kyoto Protocol did likewise not stop at party lines.92 The Clinton administration’s support of the 1995 Berlin Mandate, which envisioned legally binding rules on climate mitigation for developed countries only, triggered a dismissive bipartisan Senate reaction. In July 1997, five months before the Kyoto meeting, the Senate adopted the Byrd–Hagel resolution signalling opposition to the state of the international negotiations. The Byrd–Hagel resolution held that the United States should not be a signatory to any protocol which would (A) mandate new commitments to limit or reduce greenhouse gas emissions for the Annex I Parties, unless the protocol also mandates new specific scheduled commitment for Developing Country Parties within the same compliance period, or (B) result in serious harm to the economy of the United States.93

A Senate report on the ‘Conditions Regarding U.N. Framework Convention on Climate Change’ described the objective of the bill as being to ‘sen[d] a clear and unambiguous signal’ as to the US terms for ratification of the treaty.94 Even though the resolution was not legally binding for the executive, the 95–0 roll call votes in favour are evidence of the Senate consensus on the matter.95 Three months after the Kyoto Protocol was adopted in December 1997, the Senate Committee on Foreign Relations held a hearing on the implications of the treaty. Republican Senator Chuck Hagel stressed that the Protocol ‘fails to meet the minimum criteria set unanimously by the U.S. Senate’.96 Similarly, H.R. 2617 – Consolidated Appropriations Act, 2023 117th Congress (2021–2). H. Con. Res. 29, 118th Congress (2023–4), 28 March 2023. 92 M. Pollack, ‘Who Supports International Law, and Why? The United States, the European Union, and the International Legal Order’, ICON 13 (2015), 873 (899). 93 105th Congress (1997–8), S. Res 98. 94 105th Congress, Senate 105-54, 21 July 1997, www​.congress​.gov/​congressional​ -report/​105th​-congress/​senate​-report/​54/​1​?overview​=​closed. 95 Roll Call Vote 105th Congress, 205, 25 July 1997. 96 Hearing before the Committee on Foreign Relations United States Senate, Implication of the Kyoto Protocol on Climate Change, S. Hrd. 105-457, 11 February 1998, 2. 90 91

Vetoing

39

Democratic Senator Joe Biden emphasized that ‘there will be no ratification of this treaty’ unless the issue of developing countries’ participation was solved.97 Accordingly, the 2000 Democratic Party Platform promised to ‘dramatically reduce climate-disrupting and health-threatening pollution in this country, while making sure that all nations of the world participate in this effort’.98 The experience of the Byrd–Hagel resolution has informed US international climate change policy ever since. In the context of the Paris negotiations, the Obama administration could not count on Senate or Congress approval for its international climate change policy. After the Republican success at the midterm elections of 2014, Republican majorities in the Senate and the House of Representatives attempted to block the legal basis for the EPA’s domestic climate protection action, which was only averted through a presidential veto. Thus, the Obama administration pushed for the inclusion of non-binding mitigation obligations into the Paris Agreement, allowing for it to be treated as a sole executive agreement not requiring Senate (or Congress) participation in the domestic treaty-making process.99 For the Obama administration, turning its back on the Senate and Congress appeared to be the only viable way to achieve its multilateral policy objective. In any case, it should be stressed that Republican rejection of international climate change policies in Congress often went further than Democratic disapproval. In 2003, Republican Senator Inhofe, one of the strongest critics of domestic and international climate protection efforts, suggested that ‘the claim that global warming is caused by man-made emissions is simply untrue and not based on sound science’ and that the Kyoto Protocol ‘would impose huge costs on Americans, especially the poor’.100 Twelve years later, Inhofe dismissed the Obama administration’s ratification of the Paris Agreement as irrelevant since ‘Senate leadership has already been outspoken in its position that the United States is not legally bound to any agreement setting emissions targets or any financial commitment to it without approval by Congress’.101 Three days after the Paris Agreement had been adopted, several Republican members of Congress expressed that the agreement should not be ‘signed,

Ibid, 15. 2000 Democratic Party Platform, 14 August 2000, www​.presidency​.ucsb​.edu/​ documents/​2000​-democratic​-party​-platform. 99 On this see Chapter 4. 100 J. Inhofe, ‘The Science of Climate Change’, 29 July 2003, www​.epw​.senate​.gov/​ public/​index​.cfm/​2003/​7/​post​-5222db62​-e758​-437a​-9b37​-47bee0d3339a. 101 US Senate Committee on Environment and Public Works, ‘Inhofe Statement on Final COP21 Climate Deal’, 12 December 2015, www​.epw​.senate​.gov/​public/​index​ .cfm/​2015/​12/​inhofe​-statement​-on​-final​-cop21​-climate​-deal. 97 98

Treaties in parliaments and courts

40

ratified, acceded to or adopted by the United States’.102 In light of the Obama administration’s use of executive agreements to conclude the Paris Agreement, the 2016 Republican Party Platform promised to ‘restore the treaty system’ and to declare all executive agreements ‘null and void as mere expressions of the current President’s preferences’.103 In 2017, Senator Inhofe – together with six other Republican Senators and House members – co-sponsored a concurring ‘Sense of Congress’ resolution suggesting that the US should withdraw from the Paris Agreement because it may create ‘serious harm to the United States economy, including significant job loss [and] increased energy and consumer costs’.104 On this basis, Inhofe co-drafted a letter of 22 Republican Senators, among them chairman of the Foreign Relations Committee Risch, urging President Trump to ‘make a clean break from the Paris Agreement’.105 The Republican Senators pointed to the risk that the Paris Agreement could be used as a defence in courts against the roll-back of the Obama administration’s Clean Power Plan.106 After the notice of withdrawal, a Republican member of the House once again heavily criticized the ‘flawed Paris accords’ as privileging China and denounced the decision not to involve the Senate in the treaty-making process in the first place.107 In response to the Biden administration’s re-acceptance of the Paris Agreement in January 2021, 15 Republican House members supported the Paris Agreement Constitutional Treaty Bill according to which ‘[n]o action may be taken to carry out the goals of the Paris Agreement, […] unless the Senate first adopts a resolution of advice and consent to ratification of the Paris Agreement’.108 Eight House members suggested that the US should again withdraw from the agreement.109 All in all, while Republican rejection of international climate change action was more thorough, even Democratic members of Congress were not willing to accept a treaty like the Kyoto Protocol that

H. Con. Res.105, 114th Congress (2015–16), 18 December 2015. Ibid. 104 S. Con. Res.17, 115th Congress (2017–18), 22 May 2017; H. Con. Res.55, 115th Congress (2017–18), 18 May 2017. 105 United States Senate, Letter to President Donald Trump, 25 May 2017, www​ .inhofe​.senate​.gov/​imo/​media/​doc/​Paris​%20letter​.pdf; Associated Press, ‘22 GOP Senators Want US to Pull Out of Paris Climate Accord’, 25 May 2017, https://​web​ .archive​.org/​web/​20170603183319/​https://​www​.nytimes​.com/​aponline/​2017/​05/​25/​us/​ politics/​ap​-us​-united​-states​-climate​-change​.html. 106 Ibid. 107 House of Representatives, 116th Congress, 1st session, 30 April 2019, H3330. 108 H.R. 376 – 117th Congress (2021–2), 21 January 2021; see also H.R. 59, 117th Congress (2021–2), 21 January 2021. 109 H.R. 113 – 117th Congress (2021–2), 11 February 2021. 102 103

Vetoing

41

differentiated between developed and developing countries in the binding character of its climate mitigation obligations. 2.2

The Vote of Non-Confidence in India

For the Indian Lok Sabha and Rajya Sabha, it is particularly difficult to challenge the executive’s position on a treaty. While the constitution theoretically allows parliamentary involvement in treaty-making if parliament adopts a law providing for such a procedure, parliament has not passed such a law.110 Accordingly, the constitutional practice privileges executive decision-making. Since the times of Prime Minister Jawaharlal Nehru, the treaty-making power has belonged to the domain of the executive and proposals for change have proven fruitless.111 Accordingly, the Lok Sabha and Rajya Sabha have largely been sidelined from the discussion process about the advantages and disadvantages of Indian participation in the treaty regimes. Only India’s repositioning towards subscribing to (non-binding) climate mitigation goals triggered some parliamentary debate.112 Some months before the Paris Agreement was negotiated, opposition politicians in the Lok Sabha criticized the government for not taking the interests of India as a developing country sufficiently seriously. A member of a regional party in Tamil Nadu deplored that the equity principle of the Kyoto Protocol ‘will be seriously eroded and the developed countries will escape from the hook and evade from their historical responsibility for ever’.113 After the adoption of the Paris Agreement, a member of the communist party of India challenged the negotiating outcome as a ‘huge loss’ for developing countries since the strict principle of differentiation between developed and developing countries was not maintained despite the fact that the US and European Union (EU) are largely responsible for climate change.114 According to the politicians, the agreement would put high pressure on India to reduce its consumption of coal, ‘hit[ting] our economy, poverty eradication

Rajamani, ‘Constitutional Schema’, 155. See Report of the National Commission to Review the Working of the Constitution, 2002, Summary of Recommendations, 77; S. Badatya, ‘Parliament and Foreign Policy Decision Making in India: Extent, Instruments and Impediments’, Journal of Governance & Public Policy 9 (2019), 2 (10). 112 On parliament in the context of the Copenhagen Conference, N. Dubash and L. Rajamani, ‘Multilateral Diplomacy on Climate Change’, in D. Malone, C. Mohan and S. Raghavan (eds), The Oxford Handbook of Indian Foreign Policy (OUP 2015), 663 (667); S. Prabhu, ‘Climate Change and Parliament’, in N. Dubash (ed.), Handbook of Climate Change and India: Development, Politics and Governance (OUP 2012), 230. 113 Lok Sabha Debates, Sixteenth Series, Vol. IX, 28 April 2015, 291. 114 Lok Sabha Debates, Sixteenth Series, Vol. XIV, 22 December 2015, 13. 110 111

Treaties in parliaments and courts

42

and urbanization’.115 However, these critical voices did not have any chance to affect the decision-making process inside the executive. In fact, to prevent a treaty from being adopted, the parliamentary bodies need to employ the constitutional tools available to change the government. Since Blackstone’s time, replacement of the government has been regarded as the valid political instrument enabling parliament to challenge a government’s foreign policy.116 There have been attempts to use this power in India. When the United Progressive Alliance government signed the ‘123 Agreement’ between the United States and India on the peaceful uses of nuclear energy in 2007 on behalf of India,117 Prime Minister Manmohan Singh of the Congress party barely survived a vote of non-confidence in the Lok Sabha because parties in an alliance from the left of the political spectrum withdrew their support of the government.118 Moreover, in the past, parliamentary participation has become crucial when a treaty requires a constitutional amendment. In 1960, the Supreme Court decided that Indian parliament would need to adopt a constitutional amendment to implement the border agreement concerning the exchange of certain enclaves between India and Pakistan (Nehru–Noon agreement of 1958).119 Because no such amendment has been passed to date, the exchange has not become effective.120 Apart from these exceptional cases, the executive has an unlimited say in questions of treaty-making, leaving no space for parliament to act as a veto player. 2.3

The Single-Party-Dominated South African Parliament

In South Africa, parliament may in theory stop the treaty-making process by not granting the required majority approval in both parliamentary chambers to treaties that require consent (Section 231(2) and (3) of the constitution). However, the National Assembly and National Council of Provinces never vetoed a treaty. In post-apartheid South Africa, parliamentary chambers – dom Ibid, 13. Blackstone, Commentaries, 249. 117 The ‘123 Agreement’ of 2008 contains the United States–India Nuclear Cooperation Approval and Nonproliferation Enhancement Act and an Agreement for Cooperation between the Government of the United States of America and the Government of India Concerning Peaceful Uses of Nuclear Energy. 118 BBC News, ‘Indian Government Survives Vote’, 22 July 2008; http://​news​.bbc​ .co​.uk/​2/​hi/​south​_asia/​7519860​.stm. 119 The Berubari Union and Exchange of Enclaves AIR 1960 SC 845; V. G. Hegde, ‘Indian Courts and International Law’, Leiden Journal of International Law 23 (2010), 53 (63). 120 R. Chaudhuri, ‘The Parliament’, in D. Malone, C. Mohan and S. Raghavan (eds), The Oxford Handbook of Indian Foreign Policy (OUP 2015), 219 (225). 115 116

Vetoing

43

inated by the African National Congress (ANC) – provided consent to human rights treaties (ICCPR, CEDAW, CAT, CERD, CRC, CRPD, ICESCR), the Rome Statute, the Kyoto Protocol and the Paris Agreement without much debate.121 While some parliamentarians take great interest in matters of foreign policy, the informal influence on the executive negotiating position has been rather limited.122 In any case, whenever the executive transmitted a negotiated treaty to the National Assembly and National Council of Provinces, the competent committees suggested approval to the plenary.123 The reluctance to challenge the executive’s approach may be partly explained by the inner workings of South Africa’s political system. In this parliamentary democracy, the President is elected by parliamentary majority in the National Assembly, which generally backs the policies of the administration.124 Rather than being separated, the two branches are closely intertwined or even ‘fused’.125 Moreover, in South Africa the direction of foreign policy is shaped almost exclusively by the leaders of one party. Because the ANC has received more than 50 per cent of the seats in the National Assembly and the National Council of Provinces in each election since the end of apartheid, the foreign policy views of the ANC leaders have rarely been seriously challenged. Rather rigid ANC party discipline keeps ANC parliamentarians’ potential critique of ‘their’ government’s foreign policy under control. Especially since the Mbeki administration took power, the ANC has used the collocation of the party list for elections to discipline its members.126 Accordingly, the single-party domi-

See Chapter 3.1.1. J. Siko, Inside South Africa’s Foreign Policy. Diplomacy in Africa from Smuts to Mbeki (Tauris 2014), 178. 123 On the process National Assembly Rules as of June 1999, 306–7, https://​pmg​.org​ .za/​page/​narules. 124 S. Schmidt, ‘Das südafrikanische Parlament: Eine zweitrangige Institution?’ in D. de la Fontaine and F. Müller and C. Hofmann and B. Leubolt (eds), Das politische System Südafrikas (Springer 2017), 99 (99); on South Africa as a parliamentary democracy see H. Klug, The Constitution of South Africa: A Contextual Analysis (Hart 2010), 153–85. 125 In the nineteenth century, Walter Bagehot described ‘the close union, the nearly complete fusion, of the executive and legislative powers’ as the ‘efficient secret of the English Constitution’: W. Bagehot, The English Constitution (Kegan Paul/Trench/ Trübner Co, 7th ed. 1894, first published 1873), 10. 126 Siko, Inside, 173–5; see also J. Barkan, ‘Emerging Legislature or Rubber Stamp? The South African National Assembly after Ten Years of Democracy’, CSSR Working Paper No. 134 (2005), 6–7; L. Masters, ‘South Africa’s Emerging Parliamentary Diplomacy and Soft Power’, Strategic Review for Southern Africa 37 (2015), 74 (79). Schmidt, ‘Parlament’, 116–19; some political scientists criticize that the South African parliament often defers to the executive in questions of foreign policy even though the constitution might allow a stronger role: A.K. Ahmed, ‘The Role of Parliament in 121 122

44

Treaties in parliaments and courts

nated parliament usually supports the policy of the President and party leader.127 The mutual dependency between the executive leader and the single-party dominated parliament makes it rather unlikely that parliament will act as a veto player in the future. While these factors induce parliamentary support for the government’s position, the relative foreign policy consensus in the South African parliament also contributes to the lack of attempts to veto treaties. Because of the agreement between different parties on the benefits of South Africa’s endorsement of the treaties examined in this study, challenges to the executive’s treaty policy are rare.128 Only under exceptional circumstances may parliamentary participation in treaty-making slow down ratification of a treaty. The treaty on the Establishment of an African Court on Human and Peoples’ Rights was ratified four years after the Mandela administration’s signature in 1998. According to observers, debates in the Department of Justice and the Justice Portfolio Committee of the South African National Assembly about the proper relationship between the African Court and the South African Constitutional Court reduced the speed of ratification.129

2.4

THE INTRICACIES OF GERMAN FEDERALISM

2.4.1 The Bundestag’s Support of the Government Similar to the situation in South Africa, the German Bundestag may prevent the ratification of treaties in theory by denying simple majority consent to treaties that regulate the political relations of Germany or relate to subjects of federal legislation (Article 59(2) Sentence 1 of the Basic Law). However, as in South Africa, the Bundestag granted consent to human rights treaties (CERD, ICCPR, ICESCR, CEDAW, CAT, CRC, CRPD and the Convention for the Protection of All Persons from Enforced Disappearance (CPPED), the Rome South Africa’s Foreign Policy Development Process. Lessons from the United States’ Congress’, South African Journal of International Affairs 16 (2009), 291. 127 For a critical assessment of single-party dominance in South Africa see S. Sibanda, ‘Parliament and the Separation of Powers: A Critical Analysis in Relation to Single-Party Domination’, in H. Corder and V. Federico (eds), The Quest for Constitutionalism: South Africa since 1994 (Routledge 2014), 39. 128 For the controversy about the withdrawal from the Rome Statute see, however, Chapter 3.3. 129 T. Maluwa, ‘The African Union, the Southern African Development Community, and the New Partnership for Africa's Development: Some Observations on South Africa’s Contribution to International Law-Making and Institutional-Building in Africa, 1994–2004’, SAYIL 29 (2004), 5 fn 71.

Vetoing

45

Statute (and its amendment), the Kyoto Protocol and the Paris Agreement.130 In fact, it seems that only once has the Bundestag withheld its approval of a treaty signed by the government on behalf of Germany.131 As in South Africa, the rare use of the veto power may be explained with the features of the German parliamentary system. In the German parliamentary democracy, the government – whose chancellor has been elected by the Bundestag – and the parliamentary majority in the Bundestag build a ‘political community of action’.132 The interlinkages between the two branches are reinforced by the fact that the cabinet consists of leading party figures sitting in parliament.133 As in South Africa, the incentive for parliamentarians of the majority parties in the Bundestag to scrutinize the executive’s foreign policy and take a different position is not very high. Despite the free mandate of the individual member of parliament (Article 38(1) Sentence 2 of the Basic Law), majority parties regularly support the policy approach of the government, particularly in foreign affairs.134 Rather than between the executive and legislature, the political dividing line runs between the opposition parties in parliament on the one side and the government and governing coalition in parliament on the other side.135 Moreover, in the rare cases of disagreement, politicians of the government coalition will likely communicate their concerns to the government prior to the debate on the approval law. Because the parliamentarians in support of the government have an interest in saving the executive from embarrassment, such a treaty will likely not be tabled in the Bundestag in the first place.136 Adding to these factors, the multi-partisan endorsement of the treaties examined in this

See Chapter 3.1.2. On the German-French Border Treaty of 31 July 1962 see Arndt, ‘Praxis’, 109. 132 W. Link, ‘Die Auswärtige Gewalt in der deutschen Parteiendemokratie’, in A. Liedhegener and T. Oppelland (eds), Parteiendemokratie in der Bewährung (Nomos 2009), 539 (542); for the German parliament and human rights beyond treaties S. Voß, Parlamentarische Menschenrechtspolitik (Droste 2000). 133 P. Dann, ‘The Gubernative in Presidential and Parliamentary Systems. Comparing Organizational Structures of Federal Governments in the USA and Germany’, ZaöRV 66 (2006), 1 (38). 134 K. Oppermann and A. Höse, ‘Die innenpolitischen Restriktionen deutsche Außenpolitik’, in T. Jäger and A. Höse and K. Oppermann (eds), Deutsche Außenpolitik (VS Verlag, 2nd ed. 2011), 44 (55–7). 135 A. Ingold, Das Recht der Oppositionen (Mohr Siebeck 2015), 28–39; E. Schütt-Wetschky, ‘Gewaltenteilung zwischen Legislative und Exekutive?’, APuZ 26 May 2000, www​.bpb​.de/​apuz/​25526/​gewaltenteilung​-zwischen​-legislative​-und​ -exekutive​?p​=​all. 136 Arndt, ‘Praxis’, 109; V. Pilz, Der Auswärtige Ausschuss des Deutschen Bundestages und die Mitwirkung des Parlaments an der auswärtigen und internationalen Politik (Duncker & Humblot 2008), 121–2. 130 131

Treaties in parliaments and courts

46

study explains the limited veto player role. As will be demonstrated below, opposition parties most often support Germany’s ratification of the treaties.137 Accordingly, one finds little evidence for legislative concerns with the treaties discussed here. During the consent process for CEDAW, the legal committee of the Bundestag expressed disagreement with parts of the treaty’s text. The legal committee indicated that West Germany should not ratify similar treaties in the future if reservations by other states continued to limit the enforceability of the treaty provisions.138 In particular, the Committee criticized reservations against submitting disputes about the treaty to an arbitration procedure (Article 29 of CEDAW). Through this declaration, the Bundestag presumably challenged the reservation that had been submitted by the GDR.139 Moreover, the majority of the Committee members suggested that the ‘demands’ of Article 11 of CEDAW on the right to work would ‘exceed the necessary extent’.140 However, these declarations did not become part of the official German position upon ratification. Instead, the Bundestag approved CEDAW with no dissenting votes.141 If parliamentarians of the majority parties object to the ratification of a particular treaty, this is often in response to motions by the opposition. In 2019, the parliamentary groups of the governing Christian Democratic Union/ Christian Social Union (CDU/CSU) and Social Democratic Party (SPD) coalition rejected the motion of Green Party parliamentarians to ratify the OP to the ICESCR. Even though the coalition had promised Germany’s ratification of the individual communication mechanism to the ICESCR Committee in the 2018 coalition treaty,142 the government took no action. In a 2019 meeting of the Bundestag’s Committee on Human Rights and Humanitarian Aid, the CDU/CSU parliamentary group suggested that in light of the ICESCR Committee’s flawed 2018 report on Germany, no need for more intense cooperation existed.143 In particular, the suggestion that Germany would not provide sufficient financial support for unemployed persons would be unconvincing, also because the Committee’s assessment contradicted with German jurisprudence.144 More generally, the Committee would at times come to one-sided decisions on the basis of questionable sources.145 Thus, rather than vetoing

See Chapter 3.1.2. Bundestag, Drucksache 10/2836, 5 February 1985. 139 United Nations, Treaty Series 1981, 128. 140 Bundestag, Drucksache 10/2836, 5 February 1985. 141 Ibid. 142 Koalitionsvertrag, 19. Legislaturperiode, 155. 143 Bundestag, Drucksache 19/10720, 6 June 2019, 4–5. 144 Ibid, 4–5. 145 Ibid, 4–5. 137 138

Vetoing

47

a decision of the government, the majority parties rejected the motion of the opposition. 2.4.2

Länder Interference with Treaty-Making

The involvement of the Länder in the treaty-making process had stronger repercussions for the German position towards the treaties addressed here. The German constitution provides for the protection of the competences of the Länder in the domestic treaty-making process in two ways. First, Article 32 of the Basic Law regulates the division of the competences between the Federation and Länder (so-called Verbandskompetenz). While Article 32(1) of the Basic Law monopolizes the conduct of foreign relations at the federal level, the Länder are empowered to conclude treaties concerning their legislative competences with the consent of the Federation (Article 32(3) of the Basic Law). When the Adenauer government started to prepare the conclusion of a bilateral agreement with France on cultural relations in the early 1950s, the Länder questioned the national government’s power to conclude treaties on matters of exclusive Länder competences.146 To reconcile competing interpretations of the constitutional powers, the Federation and the Länder adopted the Lindau Agreement in 1957.147 According to the agreement, the federal government is supposed to obtain the consent of the Länder in advance if their exclusive competences are at stake.148 For this purpose, the Permanent Treaty Commission (Ständige Vertragskommission der Länder) was established. The Commission coordinates a unanimous Länder position on a treaty.149 Before ratification, each Land declares its consent in a letter written to the government.150 This power of the Länder thus goes further than the power of its counterparts in South Africa, India, and the United States. Second, according to Article 59(2) Sentence 1 of the Basic Law, which affects the division of competences between the federal government and the federal parliament (so-called Organkompetenz), the Bundesrat must be involved in the treaty-making process for treaties that relate to subjects of federal legislation if the Bundesrat is ‘responsible in such a case for the

146 On the debate and context see F. Lange, Praxisorientierung und Gemeinschaftskonzeption. Hermann Mosler als Wegbereiter der westdeutschen Völkerrechtswissenschaft nach 1945 (Springer 2017), 191–8. 147 Lindau Agreement, 14 November 1957. 148 Ibid, No. 3. 149 C. Bücker and M. Köster, ‘Die Ständige Vertragskommission der Länder’, JuS 2005, 976 (976); W. Busch, Die Lindauer Vereinbarung und die Ständige Vertragskommission der Länder (Schön 1969), 97. 150 Bücker and Köster, ‘Vertragskommission’, 978.

48

Treaties in parliaments and courts

enactment of federal law’. This means that the right of participation of the Bundesrat varies depending on whether the treaty would call for an implementing law necessitating consent of the Bundesrat or only empowering the Bundesrat to object to the treaty (Article 77 of the Basic Law).151 At times, the necessity to involve the Länder in the Ständige Vertragskommission according to the Lindau Agreement and the necessity to involve the Bundesrat according to Article 59(2) of the Basic Law overlap. Of these powers, Bundesrat participation in practice rarely poses a threat to treaty-making. Even though the Bundesrat is more likely to develop a veto position than the Bundestag because the political majority in the Bundesrat at times differs from the government majority,152 the Bundesrat inhibits the treaty-making process only in exceptional cases. In 2011, the Bundesrat prevented the conclusion of a taxation agreement between Germany and Switzerland. While the CDU/CSU and Free Democratic Party (FDP)-led coalition government promoted German ratification of the agreement, the Länder, with government participation by the SPD, Green Party and Left Party – which held a majority in the Bundesrat – prevented its conclusion.153 However, the Bundesrat approved the treaties under examination, if necessary. While the conclusion of the CPPED, the Rome Statute, the Kyoto Protocol and the Paris Agreement did not require Bundesrat consent,154 the Bundesrat approved CERD and CEDAW without demanding any changes.155 In contrast, the necessity to involve the Länder through the Lindau Agreement in the domestic treaty-making process considerably postponed the ratification of CAT and the CRC in the late 1980s and early 1990s and led to the adoption of certain interpretative declarations.156 In the debate on 151 The objection then may be overridden by the Bundestag: W. Kewenig, ‘Bundesrat und auswärtige Gewalt’, Zeitschrift für Rechtspolitik 4 (1971), 238. 152 R. Sturm, ‘Divided Government in Germany: The Case of the Bundesrat’, in R. Elgie (ed.), Divided Government in Comparative Perspective (OUP 2001), 167. 153 P. Hinny, V. Kaiser, S. Bazerkiewicz and M. Lang, ‘Das Verfahren beim Abschluss und bei der Kündigung von Doppelbesteuerungsabkommen in Deutschland, Österreich und der Schweiz’, Internationales Steuerrecht 2020, 317. 154 See for instance Bgbl, 2009, Part II, Nr. 27, 5 August 2009, 932; Bgbl, 2002, Teil II, No 16, 2 May 2002, 966; ibid, 2016, Part II, No. 26, 30 September 2016, 1082. 155 Bundeskanzler and Bundestag on the Drucksache V/3960, 17 March 1969, http://​ dipbt​.bundestag​.de/​doc/​btd/​05/​039/​0503960zu​.pdf; Bundestag, Drucksache 10/955, 2 February 1984, 28; Bgbl, 1992, Part II, 21 February 1992, 121; Bgbl, 2008, Part II, No 35, 31 December 2008, 1419. 156 J. Frowein and M. Hahn, ‘The Participation of Parliament in the Treaty Process in the Federal Republic of Germany’, in S. Riesenfeld and F. Abbott (eds), Parliamentary Participation in the Making and Operation of Treaties: A Comparative Study (Martinus Nijhoff 1994), 61 (63); J. Wolf, ‘Ratifizierung unter Vorbehalten. Einstieg oder Ausstieg der BRD aus der UN-Konvention über die Rechte des Kindes’,

Vetoing

49

CAT, the Bundesrat stressed that, according to the Lindau Agreement, all of the Länder had to formally declare consent with the treaty before it may be ratified.157 Bavaria and Baden-Württemberg expressed concerns about the domestic impact of the non-refoulement rule codified in Article 3 of the CAT.158 In 1986, CSU politician Edmund Stoiber had suggested that CAT would create a new ground for asylum and make West Germany ‘almost inevitably the El Dorado of all foreigners which need to be deported’.159 Both Länder urged the federal government to attach an interpretative declaration highlighting that the non-refoulment provision only obligates states and does not allow individuals to directly rely on it.160 In the context of a political controversy about the substance of German asylum law in the late 1980s, the interpretative declaration was supposed to clarify that victims of torture do not receive a right of entry or residence in West Germany.161 Against this background, the Kohl government at first hesitated to table an approval law even though the majority parties in parliament generally supported CAT.162 Moreover, despite criticism of the Green Party and SPD in opposition,163 the German government attached the requested interpretative declaration upon ratification of CAT. In Germany’s opinion, ‘article 3 as well as the other provisions of the Convention exclusively establish State obligations that are met by the Federal Republic of Germany in conformity with the provisions of its domestic law which is in accordance with the Convention’.164 On this basis, CAT received approval of the Länder and the unanimous support of all parties in the Bundestag.165 The Länder involvement also affected German ratification of the CRC. The federal government had argued for a mere involvement of the Bundesrat Zeitschrift für Rechtspolitik 24 (1991), 374 (375–6); some observers suggest that these interpretative declarations really were reservations because they not merely clarified the content of the treaty but aimed at excluding or modifying the legal effect of a treaty provision in its application in the German order. 157 Bundestag, Drucksache 11/5459, 25 October 1989, 31. 158 Bundestag, Plenarprotokoll 11/194, 8 February 1990, 14903; this critique is somewhat surprising given that the Geneva Refugee Convention which had been ratified by West Germany in 1953 contains the non-refoulement principle and the German Federal Administrative Court had recognized the principle in 1983, Voß, Menschenrechtspolitik, 27. 159 Frankfurter Allgemeine Zeitung, ‘Bayern befürchtet neuen “Asyltatbestand”’, 4 April 1986. 160 Bundestag, Plenarprotokoll 11/194, 8 February 1990, 14903. 161 M. Maier-Brost, ‘Folter – Außenpolitische Ächtung versus innenpolitische “Zurückhaltung” in der Bundesrepublik’, Kritische Justiz 30 (1997), 329, fn 3. 162 Bundestag, Plenarprotokoll 11/194, 8 February 1990, 14903–4. 163 Bundestag, Drucksache 11/6370, 7 February 1990, 4. 164 UNTC, ‘CAT’. 165 Bundestag, Drucksache 11/6370, 7 February 1990.

Treaties in parliaments and courts

50

in the treaty process according to Article 59(2) Sentence 1 of the Basic Law because the domestic application of the CRC would require adaptation of the Länder’s administrative procedures (Article 84 of the Basic Law).166 However, the Länder successfully claimed that the respective Länder themselves needed to formally consent to the CRC on the basis of the Lindau Agreement since matters of exclusive competence of the Länder were affected.167 Subsequently, some Länder conditioned their unanimous consent on certain interpretative declarations.168 In particular, some Länder urged the government to add declarations on articles dealing with family reunification across borders, child custody and migrant children.169 Accordingly, upon CRC ratification in 1992, the Kohl government added declarations that were supposed to clarify that the convention did not alter German law in these particular issue-areas.170 This legislative history came full circle in the debate about the revocation of the German interpretative declarations to the CRC in the early 2000s. The debate focused on the so-called Ausländervorbehalt according to which ‘nothing in the Convention may be interpreted as implying that unlawful entry by an alien into the territory of Germany or his unlawful stay there is permitted’.171 The SPD and Green Party coalition government, in power since 1998, intended to withdraw the declaration/reservation, and politicians from all parties in the Bundestag supported its revocation.172 However, some of the Länder took contrasting views. In particular, the CSU-led Bavaria emphasized the necessity to uphold the declaration/reservation.173 Since the federal government assumed in light of the legislative history that all Länder had to consent to the revocation on the basis of the Lindau Agreement,174 the required unanimous Länder consensus was not reached. By 2007, 12 Länder had declared that renouncing the CRC declaration may lead to ‘misinterpretations, false expectations’ and ‘legal uncertainty’ in the application of asylum law.175 Only

Bundesrat, Drucksache 769/90, 2 November 1990, 5. Bundestag, Drucksache 12/42, 24 January 1991, Denkschrift über das Übereinkommen, 55. 168 Ibid, 32. 169 Ibid, 32. 170 T. Löhr, ‘Gesetzliche Konsequenzen aus der Rücknahme des Vorbehalts zur Kinderrechtskonvention’, ZAR 2010, 378 (379). 171 Bundesgesetzblatt, Jahrgang 1992, Teil II, 990. 172 Bundestag, Plenarprotokoll 14/155, 8 March 2001, 15242–6; Drucksache 15/2419, 28 January 2004. 173 E. Peter, Eine schier unendliche Geschichte. Die deutsche Ratifikationserklärung zur UN-Kinderrechtskonvention im Diskurs (Kindernothilfe e.V., Förderverein PRO ASYL e.V. November 2009), 18. 174 Bundestag, Drucksache 16/6076, 13 July 2007, 3. 175 Ibid, 4. 166 167

Vetoing

51

when the CDU/CSU- and FDP-led Merkel II government signalled support for the revocation of the declaration in 2009176 did the Länder cease to block the process, and one year later the government declared the revocation to the UN Secretary-General.177 The federal element of the German treaty-making power thus for some time forestalled a harmonious course of action by the government and the Länder in relation to CAT and the CRC. Because the Lindau Agreement provides for a veto player role for each Land, the government is not able to conclude treaties affecting the Länder competences without convincing every Land of its benefits. This rather strong veto player potential of the Länder has so far had no major repercussions for the German ability to conclude multilateral treaties. The CAT and CRC cases remain rather exceptional. The relative consensus on the benefits of the treaties discussed here shared by various German parties prevented a strong de facto veto role of the Länder.178

2.5

THE REPERCUSSIONS OF FOREIGN RELATIONS LAW

The differences of the respective foreign relations laws affect parliamentary chambers’ inclination to become veto players. The two-thirds majority threshold in Article II, Section 2, Clause 2 of the US constitution is a key reason why the US Senate is known as the notorious ‘graveyard’179 and ‘cold storage’ facility180 for treaties. In particular in relation to UN human rights treaties, the two-thirds majority threshold limited the ability for US participation in the context of mounting party polarization between treaty-supportive Democrats and treaty-sceptical Republicans.181 Especially since the ‘Gingrich Revolution’ in 1994, the threshold allows conservative interest groups concerned that treaties such as CEDAW, the CRC and the CRPD may affect their domestic policy preferences to lobby for a blocking minority. However, other treaties would likely fail to receive parliamentary approval even if they were concluded as congressional-executive agreements requiring a simple majority in Congress. Löhr, ‘Rücknahme’, 379. Bundesrat, Drucksache 829/09 (Beschluss), 26 March 2010; Löhr, ‘Rücknahme’,

176 177

379.

On the consensus and indications of a demise of the consensus see Chapter 3.1.2. C. Oliver, ‘Getting the Senators to Accept the Reference of Treaties to Both Houses for Approval by Simple Majorities’, AJIL 74 (1980), 142 (143). 180 L. Henkin, ‘Treaties in a Constitutional Democracy’, Michigan Journal of International Law 10 (1989), 406 (411). 181 This rule is not applicable for all multilateral treaties. But often Democrats seem more inclined than Republicans to support treaties concerning human rights, criminal law and environmental law: Pollack, ‘International Law’, 888–9. 178 179

52

Treaties in parliaments and courts

Had US Presidents had submitted the Rome Statute and the Kyoto Protocol to Congress, they likely would not have received majority support. Not only Republicans but also many Democratic members of Congress have been or are sceptical of US ratification of those agreements. While the two-thirds majority threshold exacerbates the prospects of US ratification, a simple majority threshold would be no guarantee of US participation in all the treaty regimes under examination. In contrast to the US, parliamentary chambers in India, South Africa and Germany usually do not act as veto players. This may partly be explained by the respective foreign relations laws. The Indian parliament lacks the power to veto treaty ratification because the parliamentary majority did not pass a law providing for such a competence. Thus, the Indian parliament may impede the treaty-making process only if the parliamentary majority signals that it will not implement a treaty in need of implementation and if the parliamentarians organize a vote of non-confidence to stop the executive’s decision-making on a treaty. In South Africa and Germany, in theory the parliaments may stop the treaty-making process. However, this hardly ever occurs. Because the parliamentary majorities elect the government, they do usually not veto its foreign policy. Moreover, in both parliaments most parties endorse the treaties examined in this study. However, the participation of the German Länder in the treaty-making process on the basis of the Lindau Agreement slowed the full embrace of the CRC and CAT for some time and led to Germany’s ratification of the treaties on the basis of certain interpretative declarations. The federalist intricacies of German foreign relations law provide for a potential veto player role for each Land.

3. Promoting Parliaments may also promote the treaties discussed here by expressing support for a treaty regime that has been negotiated on the international level between representatives of the executives. Basically, three methods of endorsement exist.1 First, parliamentary majorities in support of the government and parliamentary groups in opposition may grant the constitutionally required approval to a treaty in the domestic treaty-making process. Through providing consent, parliamentarians lay the ground for the state’s membership in the treaty regime (section 1). Second, opposition groups in parliament may use inquiries, motions, resolutions and the plenary debate to call on the government to sign or ratify a certain treaty on behalf of the state. Through these means, parliamentary groups may expose an alternative policy view and may assert pressure on a hesitant executive to explain its stance (section 2). Third, parliamentarians may play a role in the context of withdrawal from treaties. Opposition parliamentarians may criticize the executive’s decision to leave a treaty regime and even attempt to prevent the withdrawal through their constitutional powers (section 3).

3.1

UNANIMOUS CONSENT

Through the approval act to a treaty, parliaments promote the respective governments’ supportive approaches towards the treaties addressed here. While in India the practice of sole executive treaty-making prevents such role for the parliamentary chambers, in South Africa, Germany and the United States the constitutionally empowered parliamentary chambers approve treaties through a resolution, an approval law or a vote of consent. 3.1.1

Party Consensus in South Africa

In South Africa, both parliamentary chambers need to consent to treaties unless the agreements are of technical, executive or administrative nature or do not require ratification or accession (Section 231(2) and (3) of the South

1 More generally, parliamentarians may also use their budget power to influence foreign policy decision-making: Chaudhuri, ‘Parliament’, 221–2.

53

54

Treaties in parliaments and courts

African constitution). Since the end of apartheid, parliament has supported the executive foreign policy on the treaties discussed here. The ANC, as the party that supports the government in parliament, shared President Mandela’s understanding of the important role of human rights in foreign affairs. An ANC working group suggested in 1993 that the ‘rise of a non-racial, non-sexist democratic South Africa from the ashes of apartheid will not terminate our quest for human rights’ but rather would inspire South Africa to ‘become a fully-fledged and vital member of the family of nations who hold human rights issues central to foreign policy’.2 Accordingly, during the human rights treaty ratification wave after the end of apartheid (and beyond), no instance was reported in which the National Assembly or the National Council of Provinces denied consent to a human rights treaty that the executive had endorsed. The constitutionally required approval resolution of both chambers seems to be a mere formality. It is important to note that the support for the treaties in the South African parliament does not only stem from the collaboration of the government and the parliamentary majority in a parliamentary democracy. In fact, in South Africa, opposition parties did not protest. During the presidencies of Mandela and Mbeki, various human rights treaties were adopted in both parliamentary chambers without dissenting voices being raised. For instance, the CRPD and its OP received broad support when they were put before parliament in March 2007. ANC parliamentarian Wilma Newhoudt-Druchen emphasized in the National Assembly the necessity of guaranteeing rights to persons with disabilities and the relevance of an oversight mechanism at the international level.3 She highlighted that the competent parliamentary committee suggested attaching no reservations despite the fact that free access to education for children with disabilities might be financially burdensome.4 The National Assembly then approved the CRPD and its OP without a plenary debate.5 Similarly, in the National Council of Provinces, both treaties were approved with no dissenting voices.6 The chairperson of the responsible committee praised the unanimous support for the CRPD and its OP at the committee level.7 Parliamentarians also shared the position of the executive on the ICC. After a briefing of a member of the Department of Justice on the Rome Statute in

2 African National Congress, Department of International Affairs, ANC Foreign Policy, October 1993, www​.africa​.upenn​.edu/​Govern​_Political/​ANC​_Foreign​.html. 3 National Assembly, 5 June 2007. 4 Ibid. 5 Ibid. 6 National Council of Provinces, 5 June 2007. 7 Ibid.

Promoting

55

the Justice Portfolio Committee,8 the Committee unanimously recommended approval to the National Assembly.9 Two days later, the National Assembly adopted the supportive committee report without any debate.10 Similarly, the Committee on Security and Constitutional Affairs of the National Council of Provinces unanimously recommended approval of the Statute, pointing to the crucial role of South Africa in the negotiations of the treaty.11 The chairperson of the Committee, ANC politician Jabulani Mahlangu, highlighted the ‘good co-operation that we got from other political parties’.12 Like the National Assembly, the National Council of Provinces adopted the report without debate.13 All parliamentary groups seemed to share the executive’s policy of support for the ICC.14 The policy on the international climate regime received similar unanimous parliamentary approval. In meetings in the Environmental Affairs and Tourism Portfolio Committee, government officials briefed the parliamentarians about the international climate change regime without receiving many critical questions.15 While some members in parliament raised the criticism that the deliberations on international environmental conventions took place without the involvement of members of parliament,16 the politicians in the committees largely followed the government line. In 2002, the Environmental Affairs and Tourism Portfolio Committee unanimously decided to recommend the National Assembly to approve the Kyoto Protocol.17 Five years later – in line with the shifting position of the administration – the chairperson of the Committee stated that even though developing countries did not carry the main responsibility for climate change, they ‘had to play a role in addressing it’.18 Similarly, parliament supported the Zuma administration’s take on the Paris Agreement. After the Portfolio Committee on Environmental Affairs 8 Justice Portfolio Committee, Meeting Report, Rome Statute of the International Criminal Court: Briefing, 5 October 2000, https://​pmg​.org​.za/​committee​-meeting/​95/​. 9 National Assembly, 1 November 2000. 10 National Assembly, 3 November 2000. 11 National Council of Provinces, 10 November 2000. 12 Ibid. 13 Ibid. 14 K. Mills, ‘Bashir Is Dividing Us: Africa and the International Criminal Court’, Human Rights Quarterly 34 (2012), 404 (409). 15 Environmental Affairs and Tourism Portfolio Committee, International Conventions: Briefing, 29 August 1999, https://​pmg​.org​.za/​committee​-meeting/​3252/​. 16 Environmental Affairs and Tourism Portfolio Committee, International Conventions: Hearings, 29 August 2000, https://​pmg​.org​.za/​committee​-meeting/​33/​. 17 Environmental Affairs and Tourism Portfolio Committee, Kyoto Protocol and Cartagena Protocol, 19 February 2002, https://​pmg​.org​.za/​committee​-meeting/​1174/​. 18 Environmental Affairs and Tourism Portfolio Committee, Climate Change: Department Briefing, 6 August 2007, https://​pmg​.org​.za/​committee​-meeting/​9020/​.

Treaties in parliaments and courts

56

unanimously recommended supporting ratification of the Paris Agreement, the National Assembly approved the treaty in November 2016.19 In the plenary debate, members of parliament from the ANC as well as the Democratic Alliance (DA) and Economic Freedom Fighters (EFF) in opposition expressed their full support for the process.20 Some days earlier, the National Council of Provinces had already declared its unanimous approval.21 While the reluctance to challenge the executive approach towards the treaties discussed here might at times be linked to a lack of capacity and limited resources to scrutinize treaties in the South African parliament,22 opposition members in South African parliament often share the generally supportive view of these treaties.23 3.1.2

Multi-Partisan Endorsement in Germany

In Germany, the laws of parliamentary approval of the treaties discussed here mostly received unanimous support on the floor of the parliamentary chambers.24 Parliamentarians from the opposition did not question German participation in the various human rights treaties, the Rome Statute, the Kyoto Protocol and the Paris Agreement because such participation was regarded as a common objective of all members of the Bundestag (and often also the Bundesrat). As early as the 1970s and 1980s, the Bundestag unanimously supported ratification of the ICCPR and approved CEDAW with no dissenting voices heard.25 In the 2000s, the approval acts to the CRPD and to the CPPED received unanimous support.26 Not only the Social Democratic and Christian Democratic parliamentarians that had elected Chancellor Merkel in 2005, but also members from the Green, Left and FDP opposition parties, endorsed both treaties. Even National Assembly, 1 November 2016, 45–82. Ibid, 45–82. 21 National Council of Provinces, 27 October 2016, 5. 22 Siko, Inside, 169–80; in the Committee meetings on the treaties in question, the parliamentarians often received information by government officials without critically assessing it, for instance Environmental Affairs and Tourism Portfolio Committee, Kyoto Protocol and Cartagena Protocol, 19 February 2002, https://​pmg​.org​ .za/​committee​-meeting/​1174/​. 23 For the divergent opinions on the withdrawal from the ICC see Chapter 3.3. 24 Generally, approval laws receive broad support in the Bundestag: W. Ismayr, ‘Bundestag’, in S. Schmidt, G. Hellmann and R. Wolf (eds), Handbuch zur deutschen Außenpolitik (Verlag für Sozialwissenschaften 2007), 175 (181–2). 25 Bundestag, Drucksache 7/1092, 17 Oktober 1973, 1; Bundestag, Drucksache 10/2836, 5 February 1985. 26 Bundestag, Drucksache 16/11234, 3 December 2008, 2; Plenarprotokoll 16/193, 4 December 2008, 20855; Drucksache 16/13029, 13 May 2009; Plenarprotokoll 16/222, 14 May 2009, S. 24362. 19 20

Promoting

57

the constitutionally required involvement of the Bundesrat and Länder in the approval process to the CRPD did not become a stumbling block for the government. The Bundesrat participated in the approval of the CRPD because the approval law partly needed to be executed through the Länder (Article 84 of the Basic Law).27 After a representative of Rhineland-Palatinate had praised the CRPD’s ‘tailwind for participation, equalization and self-determination for persons with disabilities’,28 the Bundesrat granted its consent to the approval act in December 2008.29 The Länder, which were involved in the treaty-making process according to the Lindau Agreement, declared their unanimous consent in the Permanent Treaty Commission.30 The support for human rights treaties in the German parliament is built on broad multi-partisan agreement.31 The executive embrace of the emerging system of international criminal law received similarly broad support in parliament. When the Kohl government pondered transferring Duško Tadić as the first accused to the newly established International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1995, German law lacked a legal basis for such action.32 To remedy the situation, the German parliament quickly adopted the 1995 ICTY Cooperation Act, with a large majority.33 Only the parliamentary group of the Party of Democratic Socialism (PDS) abstained from voting for the law, because its members questioned the competence of the UN Security Council (SC) to create ad hoc tribunals.34 Similarly, the Cooperation Act on the International Criminal Tribunal for Rwanda (ICTR) was adopted three years later with a large majority, with the PDS parliamentary group abstaining.35 Shortly before the Rome negotiations started in July 1998, some parliamentarians demonstrated a keen interest in the outcome of the deliberations. The parliamentary group of the Green Bundesgesetzblatt, Teil II 2008 Nr. 35, 31 December 2008, 1419. Bundesrat, Plenarprotokoll 853, 19 December 2008, 460. 29 Ibid, 460. 30 While no official publication documents the approval, the Permanent Treaty Commission declared, upon request, that the consent was granted in due time: T. Bernhard, Anforderungen an ein inklusives Bildungssystem nach der UN-Behindertenrechtskonvention: Eine Untersuchung der Rechtslage im Freistaat Bayern (Nomos 2016), 112. 31 In general on the foreign policy consensus in the German parliament see Arndt, ‘Praxis’, 104. 32 P. Wilkitzki, Jugoslawien-Strafgerichtshof-Gesetz (Nomos 2008), paras 9–11. 33 Bundestag, Plenarprotokoll 13/24, 9 March 1995, 1758-1763; Drucksache 13/716, 8 March 1995; Bundesgesetzblatt I 1995, Nr. 18, S. 485, Gesetz über die Zusammenarbeit mit dem Internationalen Strafgerichtshof für das ehemalige Jugoslawien (Jugoslawien-Strafgerichtshof-Gesetz), 10 April 1995. 34 Bundestag, Plenarprotokoll 13/24, 9 March 1995, 1763–4. 35 Bundestag, Plenarprotokoll 13/216, 5 February 1998, 19715 D; Drucksache 13/6165, 15 November 1996. 27 28

Treaties in parliaments and courts

58

Party urged the government to lobby for an independent prosecutor, a limited role of the SC, universal jurisdiction and the inclusion of the crime of aggression – propositions that largely reflected the government’s line.36 The law approving the Rome Statute received unanimous parliamentary support under the incoming SPD and Green Party coalition (1998–2005). After the legal committee of the German parliament had unanimously suggested supporting the act of approval,37 the Bundestag provided consent with no deviation.38 In the parliamentary debate, members of all parties embraced the creation of the Court, demonstrating united support for the new institution.39 Various speakers stressed the importance of reaching out to the United States to participate in the framework to achieve an effective system.40 Also, members of the PDS were now comfortable voting for the approval law, because the ICC was based on a treaty and not on a SC resolution.41 After the adoption of the Rome Statute, parliamentarians continued to support the executive’s position on the ICC. In 2012, the Bundestag unanimously passed an approval law to the reformed Rome Statute that included a definition of the crime of aggression in line with the consensus found at the 2010 review conference in Kampala. In the legal committee, all parliamentary groups praised the insertion of the crime of aggression into the jurisdiction of the Court as a major achievement.42 Furthermore, in response to rising criticism of the ICC by some states, the parliamentary groups of the CDU/CSU, SPD, FDP and Green Party expressed their continued support for the Court.43 In the 2018 parliamentary resolution on ‘Strengthening the International Criminal Court’, the parliamentarians urged the German government to support broader participation, prevent further withdrawals and promote international funding.44 As one parliamentarian accurately observed, Germany’s commitment to international criminal justice represents a ‘common ground of German legal and foreign policy’.45 In recent years, there have been signs of erosion of the consensus. The 2018 resolution on ‘Strengthening the International Criminal Court’ did not receive Bundestag, Drucksache 13/10935, 10 June 1998, 3–4. Bundestag, Drucksache 14/4421, 27 October 2000. 38 Bundestag, Plenarprotokoll 14/128, 27 October 2000, 12362A. 39 Ibid, 12348–62. 40 Ibid, 12350, 12356, 12357. 41 However, the PDS parliamentary criticized the failure to introduce the use of atomic, chemical and biological weapons as a crime: Bundestag, Plenarprotokoll 14/128, 27 October 2000, 12358. 42 Bundestag, Drucksache 17/11583, 22 October 2012, 4. 43 Bundestag, Drucksache 19/2983, 26 June 2018; Plenarprotokoll 19/42, 28 June 2018, 4307B/C. Reden in Anhang 7. 44 Bundestag, Drucksache 19/2983, 26 June 2018. 45 N. Röttgen, Bundestag, Plenarprotokoll 14/233, 25 April 2002, 23268. 36 37

Promoting

59

the support of the parliamentary groups of the Left Party and Alternative for Germany (AfD).46 A parliamentarian from the Left Party criticized the resolution as too weak, since the SC with its special powers may use the ICC as a ‘toggle and power instrument by Great Powers against small states’.47 While the Left Party supported the ICC in principle but challenged the role of the SC in relation to the Court, the tone of the AfD parliamentarian was more dismissive: lacking a Realpolitik view, the resolution would not mean anything and only represent ‘left-green hyper morality’.48 The ICC would be ‘a beautiful example of a desired world governed by a world government and where everyone loves each other’.49 Nonetheless, all in all the Bundestag’s support for the ICC is built on a rather firm foundation. In 2022, the Bundestag voted for an act of approval concerning amendments to the Rome Statute. With these amendments, the deliberate use of starvation of civilians as a method of warfare in non-international armed conflict was recognized as a war crime recognized under the Statute. Despite severe critique voiced by the AfD, the Bundestag adopted the act unanimously.50 Similarly, the parties in the Bundestag in principle supported the international climate change policy of the respective governments. In the early 1990s, the Kohl government’s efforts at the international level were based on a broad parliamentary consensus. In the Environmental Committee, all parties praised the relevance of international efforts to fight the greenhouse effect, pointing to the UNFCCC as a key tool to further this objective.51 While the opposition parties criticized low ambition and weak implementing measures on the domestic level,52 the international agreement was not challenged. Accordingly, the act of approval to the UNFCCC was adopted with no dissenting voices.53 The different parliamentary groups perceived the 1997 Kyoto outcome as an important step, while pointing to the danger of potential loopholes for developed countries.54 In the context of parliamentary approval of the Kyoto Protocol, some CDU/CSU party members in the Committee of Economy voted against recommending the adoption of the approval law to the plenary, likely because they feared repercussions for Germany’s economic development.55 Bundestag, Plenarprotokoll 19/42, 28 June 2018, 4307. Ibid, 4341; 4343. 48 Ibid, 4330–1. 49 Ibid, 4330–1. 50 Bundestag, Drucksache 20/4088, 19 October 2022; Plenarprotokoll 20/63, 25 March 2022, 7190–5. 51 Bundestag, Drucksache 12/5093, 9 June 1993. 52 Bundestag, Plenarprotokoll 12/165, 23 June 1993, 14254–61. 53 Ibid, 14266. 54 Bundestag, Drucksache 13/10753, 20 May 1998, 2, 5–6. 55 Bundestag, Drucksache 14/8581, 19 March 2002, 3. 46 47

Treaties in parliaments and courts

60

However, in other competent committees CDU/CSU parliamentarians recommended approval and a CDU/CSU parliamentarian in the Committee on the Environment emphasized that the draft law meets an important climate policy objective of all parliamentary groups in the Bundestag.56 Accordingly, the Bundestag unanimously endorsed the act of approval of the Kyoto Protocol in 2002.57 In the context of the plenary debate, environmental minister Jürgen Trittin praised the ‘cross-party consensus’ on the approval law.58 In the 2010s, the parliamentary support continued. In December 2014, the Environmental Committee recommended approval of the Doha Amendment to the Kyoto Protocol, with only the Left Party abstaining.59 The Paris Agreement then received unanimous parliamentary support. In the Environmental Committee of the Bundestag, all parties agreed to support smooth ratification of the treaty.60 In September 2016, the Bundestag adopted the act of approval unanimously in an accelerated procedure.61 While the parliamentarians expressed divergent views on the necessity of implementing measures, all parties praised the treaty as a historic achievement.62 Concluding the plenary debate, one parliamentarian praised the consensus of all parliamentarians as a ‘strong signal for climate protection’.63 3.1.3

Support on the Basis of RUDs in the US

In the US, congressional support for human rights had a first peak in the 1970s when Congress started to call out violations of human rights by other countries.64 In particular, Congress passed legislation tying security and economic

Ibid, 19 March 2002, 3. Bundestag, Plenarprotokoll, 14/228, 22 March 2002, 22615. 58 Ibid, 22599. 59 Bundestag, Drucksache 18/3582, 12 December 2014; in this context the Left Party criticized the international efforts as not ambitious enough: Plenarprotokol 18/73, 4 December 2014, 7010–11. 60 Bundestag, Drucksache 18/9704, 21 September 2016. 61 Bundestag, Plenarprotokoll 18/190, 18844D-18845C; according to the German government, consent of the Bundestag but not of the Bundesrat was required in order to allow for ratification (Article 59(2) Sentence 1 of the Basic Law); Drucksache 18/9650, Gesetzentwurf, 20 September 2016, 1. 62 Ibid, 18836–44. 63 Bundestag, Plenarprotokoll 18/190, 18844D. 64 K. Cmiel, ‘The Emergence of Human Rights Politics in the United States’, The Journal of American History 86 (1999), 1231 (1235); more generally on the use of arguments in favour of compliance with international law in congressional debates K. Cope, ‘Congress’s International Legal Discourse’, Michigan Law Review 113 (2015), 1115. 56 57

Promoting

61

assistance to the human rights record of the receiving countries.65 In 1986, Congress overrode a veto by President Reagan against the Comprehensive Anti-Apartheid Act that introduced sanctions against South Africa for its apartheid policies.66 While these actions related to human rights violations abroad, the Senate also provided consent to some of the treaties discussed here as binding upon the United States. When the Bush I administration submitted the UNFCCC to the Senate in September 1992 for advice and consent,67 the two-thirds majority threshold was passed within a month.68 Democratic Senators endorsed US ratification because some of them increasingly regarded climate change protection as a topic that needed to be addressed internationally.69 Republican Senators were also willing to provide their consent, presumably because US negotiators had successfully prevented the inclusion of more far-reaching obligations for industrial countries in the UNFCCC.70 The Republican Senators likely also intended to support Republican President Bush, who had promoted the treaty as a ‘major step in protecting the global environment from potential adverse effects of climate change’.71 Furthermore, in the early 1990s, the Senate promoted US ratification of the CAT, CERD and ICCPR with broad majorities. For instance, the Senate Foreign Relations Committee proposed senatorial consent to CAT by 10 to 0 votes and to the ICCPR by 19 to 0.72 While the Senators were thus willing 65 B. Keys, ‘Congress, Kissinger, and the Origins of Human Rights Diplomacy’, Diplomatic History 34 (2010), 823; D. Forsythe, ‘Congress and Human Rights in US Foreign Policy: The Fate of General Legislation’, Human Rights Quarterly 9 (1987), 382. 66 On the act see Public Law 99-440, 2 October 1986. 67 G. Bush, ‘Message to the Senate Transmitting the United Nations Framework Convention on Climate Change’, 8 September 1992, Weekly Compilation of Presidential Documents, Vol. 28, No. 27, 1599. 68 Resolution of Ratification of UN Framework Convention on Climate Change, 138 Cong. Rec. 33527, 7 October 1992. 69 On these early efforts see for instance S. Agrawala and S. Andresen, ‘Indispensability and Indefensibility? The United States in the Climate Treaty Negotiations’, Global Governance 5 (1999), 457. 70 S. Andresen, ‘US Greenhouse Policy: Reactionary or Realistic?’, International Challenges 11 (1991), 17; N. Rich, ‘Losing Earth: The Decade We Almost Stopped Climate Change’, 1 August 2018, www​.nytimes​.com/​interactive/​2018/​08/​01/​magazine/​ climate​-change​-losing​-earth​.html; moreover, both Democratic and Republican Senators did not intend to drag the issue in the 1992 election: J. Galbraight, ‘From Treaties to International Commitments: The Changing Landscape of Foreign Relations Law’, The University of Chicago Law Review 84 (2017), 1675 (1732). 71 Bush, ‘Message’, 1599. 72 US Senate Report on Ratification of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or punishment, Executive Report 101-30, 30 August 1990; US Senate Report on ICCPR Ratification, 3.

62

Treaties in parliaments and courts

to enable the executive to ratify the treaties on behalf of the US, the consent came with conditions limiting the impact of the treaties in the domestic order. Various administrations had suggested the adoption of RUDs since the late 1940s, in relation to the Genocide Convention.73 Likewise, the Carter administration attached RUDs when submitting the ICCPR, ICESCR, ACHR and CERD to the Senate in the late 1970s.74 While these concessions did not overcome senatorial opposition at that time, they proved more successful after the mid-1980s. In 1986 the Senate finally consented to the Genocide Convention, which had been signed by President Truman in 1948. The Lugar– Helms–Hatch Sovereignty Package provided for various RUDs limiting the effect of the treaty in the domestic order. Upon ratification, the US government declared that the convention does not authorize actions prohibited by the US constitution and that any dispute before the International Court of Justice (ICJ) involving the United States requires its consent on a case-by-case basis.75 Also, the President agreed not to declare ratification before implementing legislation had been enacted.76 Accordingly, the US only ratified the Genocide Convention after the so-called Proxmire Act (Genocide Convention Implementation Act) had been passed in Congress in 1988.77 This became a pattern in US human rights treaty ratifications. In relation to CAT, the ICCPR and CERD, the Senate endorsed the long lists of RUDs which the Bush and Clinton administration promised to attach upon ratification.78 In particular, the Senate declared its consent ‘to be subject to’ RUDs that highlighted the primacy of US constitutional understandings of free speech

73 W. Korey, ‘The United States and the Genocide Convention: Leading Advocate and Leading Obstacle’, Ethics & International Affairs 11 (1997), 271. 74 International Human Rights Treaties, Hearings Before the Committee on Foreign Relations, United States Senate, 96th Cong., 14, 15, 16 and 19 November 1979. 75 U.S. reservations, declarations and understandings, International Convention on the Prevention and Punishment of the Crime of Genocide, Cong. Rec. S1355-01 (daily ed., 19 February 1986), http://​hrlibrary​.umn​.edu/​usdocs/​genres​.html; on this see L. LeBlanc, The United States and the Genocide Convention (Duke University Press 1991), 7–10. 76 Ibid. 77 Korey, ‘Genocide’, 289–90. 78 U.S. reservations, declarations, and understandings, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Cong. Rec. S17486-01 (daily ed., 27 October 1990), http://​hrlibrary​.umn​.edu/​usdocs/​tortres​.html; U.S. reservations, declarations, and understandings, International Covenant on Civil and Political Rights, 138 Cong. Rec. S4781-01 (daily ed., 2 April 1992), http://​hrlibrary​ .umn​.edu/​usdocs/​civilres​.html; U.S. reservations, declarations, and understandings, International Convention on the Elimination of All Forms of Racial Discrimination, 140 Cong. Rec. S7634-02 (daily ed., 24 June 1994, http://​hrlibrary​.umn​.edu/​usdocs/​ racialres​.html).

Promoting

63

and the admissibility of capital punishment, rejected potential jurisdiction of the ICJ and declared the treaties to be non-self-executing in the domestic order.79 Beyond this, the Senate attached a so-called proviso that obliged the President to notify all parties that ‘nothing in [CAT, the ICCPR and CERD] requires or authorizes legislation, or other action, by the United States of America prohibited by the Constitution of the United States as interpreted by the United States’.80 Furthermore, while CAT had received senatorial consent in 1990, the executive waited to ratify until Congress had introduced implementing legislation during the Clinton presidency in 1994.81 Senatorial consent to human rights treaties was conditioned on a wide array of declarations limiting the effects of the treaties in the domestic order.

3.2

PLEAS FOR PARTICIPATION

Beyond providing the constitutionally required consent to a treaty, parliamentarians may express their support for multilateral treaty regimes through inquiries, motions and resolutions calling for engagement with treaties. In particular, parliamentarians in opposition may use their interpellation rights to receive information, to criticize majority policies and to formulate alternative policy proposals.82 In foreign affairs, this indirect method of oversight seems particularly important to question the joint path of the government and majority parties in parliamentary systems.83 However, also in the US as a presidential system, the ‘sense of’ resolutions emerged as a key means to challenge the President’s foreign policy.84 3.2.1

Garnering Information in India

In India, the legislative bodies possess the right to question the government about its policy, including its foreign policy decision-making.85 Moreover, parliamentarians may propose motions on issues of foreign policy and par Ibid. Ibid. 81 Henkin, ‘Ghost’, 347–8. 82 On the theory of opposition, I. Ley, ‘Opposition Institutionalisieren – Alternativitat und Reversibilitat als Elemente eines völkerrechtlichen Legitimationskonzepts’, Der Staat 53 (2014), 227 (240–3); Ingold, Oppositionen, 590–7. 83 On the ‘community of action’ of the government and parliamentary majority see Link, ‘Parteiendemokratie’, 542. 84 C. Davies, ‘“Sense of” Resolutions and Provisions’, Congressional Research Service Report for Congress, updated 16 October 2019, 1. 85 See for instance Lok Sabha Secretariat, ‘Rules of Procedure and Conduct of Business in Lok Sabha’, 2014, Rule 32 to 54. 79 80

64

Treaties in parliaments and courts

liamentary deliberations may relate to India’s position on treaties.86 On this basis, some parliamentarians in opposition inquired about the reasons for non-ratification of some of the treaties discussed here. Since the early 1990s parliamentarians have asked about the reasons for the lack of CAT ratification, despite India having signed it in 1993.87 In relation to CEDAW, members of parliament inquired into the delay in submitting reports to the CEDAW Committee, the content of the critical reports of the CEDAW Committee and the reasons for maintaining reservations to the treaty.88 After the adoption of the Rome Statute, members of the Lok Sabha pressed the government for information on its position on the crime of terrorism and its general reasons for lack of ratification.89 Parliamentarians also asked the environmental minister about whether the government had signed the UNFCCC and about its implications,90 about a government strategy to implement the convention91 and about the Indian position towards a binding climate mitigation regime.92 In relation to the Kyoto Protocol, questions were posed about the outcome of the negotiations and potential obligations for India,93 whether developed states agreed to make financial contributions to developing states to facilitate the reduction of greenhouse gas emissions94 and how the government positioned itself towards US opposition to the Protocol.95 Moreover, some parliamentarians questioned the government about its measures in relation to the Paris Agreement and its response to the US withdrawal.96 86 On parliamentary influence on foreign affairs see Chaudhuri, ‘Parliament’, 221–2. 87 Lok Sabha, Tenth Series, Vol. I, No. 8, 18 July 1991, 142; Lok Sabha, Thirteenth Series, Vol. XX, No. 3, 21 November 2001, 71; Lok Sabha, Thirteenth Series, Vol. XI, No. 4, 23 November 2000, 438. 88 Government of India, Human Resource Development, Lok Sabha, Unstarred Question No. 3021, 13 August 2003; No. 1305, 2 August 2005; No. 5658, 3 May 2005. 89 Lok Sabha Debates, Twelfth Series, Vol. VI, No. 3, 2 December 1998, 251; Thirteenth Series, Vo. XVI, No. 24, 18 April 2001, 86; Government of India, Lok Sabha, Unstarred Question No. 2918, 18 August 2004. 90 Lok Sabha Debates, Tenth Series, Vol. XX, No. 28, 20 April 1993, 461. 91 Lok Sabha Debates, Tenth Series, Vol. XXIX, No. 13, 15 March 1994, 593. 92 Lok Sabha Debates, Tenth Series, Vol. XL, No. 25, 9 May 1995, 40. 93 Lok Sabha Debates, Twelfth Series, Vol. II, No. 4, 1 June 1998, 205. 94 Government of India, Environment and Forests, Lok Sabha, Unstarred Question No:1746, 3 March 2003. 95 Lok Sabha Debates, Thirteenth Series Vol. XXIV, No. 24, 23 April 2002, 115; Thirteenth Series, Vol. VII, No. 36, 15 May 2000, 30. 96 Government of India, Environment, Forests and Climate Change, Lok Sabha, Starred Question No. 277, 21 March 2017; Unstarred Question No. 195, 2 February 2018; Government of India, Environment, Forests and Climate Change, Lok Sabha, Unstarred Question No. 1490, 25 July 2017; Unstarred Question No. 3166, 5 January 2018.

Promoting

65

At times parliamentarians went beyond inquiries and challenged the government’s position. In 2000, a member of the Indian Union Muslim League criticized the government for not ratifying CAT in the context of a parliamentary debate about violent police action.97 In a parliamentary debate in 2001, a member of a Sikh minority called out the executive’s refusal to endorse the Rome Statute and other treaties as a danger for minorities’ rights.98 Most of the time, however, parliamentary action was aimed at garnering information rather than criticizing the government stance. In any case, the parliamentary debates did not lead to more general pleas for Indian ratification of the treaties discussed here. Parliamentarians did not initiate a general debate about CAT ratification or the Indian oppositional position towards the ICC, even when former government members criticized India’s lack of engagement.99 When some Indian parliamentarians declared their support for the ICC as part of Parliamentarians for Global Action,100 this did not leave traces in the domestic parliamentary debates. Similarly, in the few discussions on the benefits of climate change treaties, parliamentarians did not urge Indian engagement to accept stronger obligations at the international level. While some members in opposition criticized the Paris Agreement as not having been built on a clear distinction between obligations for developing and developed countries,101 no parliamentarian suggested that India should accept further-reaching binding mitigation obligations. Instead, after the Modi government took power, some of the human rights treaties came to be used to challenge certain actions of the government. For instance, when the government majority passed the reformed Juvenile Justice (Care and Protection of Children) Bill in 2015 that allowed for the punishment of juvenile offenders between 16 and 18 as adults in cases of murder and rape,102 various opposition politicians criticized the law as violating human rights.

Lok Sabha, Thirteenth Series, Vol. XI, No. 4, 23 November 2000, 438. Lok Sabha Debates, Thirteenth Series, Vol. XXVI, No. 7, 23 July 2002, 5567; Thirteenth Series, Vol. XXXIII, No. 26, 23 April 2003, 447; for a similar understanding by a Muslim politician see Thirteenth Series, Vol. XXXI, No. 6, 24 February 2003, 447. 99 D. Lahiri, ‘Should India Continue to Stay Out of ICC?’ Observer Research Foundation, 24 November 2010, www​.orfonline​.org/​research/​should​-india​-continue​-to​ -stay​-out​-of​-icc/​. 100 On the support see PGA, India, Campaign for the Rome Statute of the ICC, www​ .pgaction​.org/​ilhr/​rome​-statute/​asia/​india​.html. 101 Lok Sabha Debates, Sixteenth Series, Vol. IX, 28 April 2015, 291; Lok Sabha Debates, Sixteenth Series, Vol. XIV, 22 December 2015, 13. 102 The Juvenile Justice (Care and Protection of Children) Bill, 2014, Bill No. 99 of 2014, www​.prsindia​.org/​uploads/​media/​Juvenile​%20Justice/​Juvenile​%20justice​ %20Bill​,​%202014​.pdf. 97 98

Treaties in parliaments and courts

66

Congress parliamentarian Shashi Tharoor suggested that the Committee on the Rights of the Child would surely call on India for violating CRC provisions.103 Various other opposition politicians also condemned the reform act as violating India’s commitments under the CRC.104 When the Citizenship Amendment Act of 2019, which provided for easy access to citizenship for certain religious groups like Hindi and Christians while excluding Muslims,105 was adopted in the Lok Sabha and Rajya Sabha, some opposition politicians pointed to violations of human rights. In the Lok Sabha debate, one politician relied on the (non-binding) Universal Declaration of Human Rights (UDHR) to criticize the reform law.106 Rather than calling on the government to join certain new treaty regimes, compliance with universal human rights standards became an argument against proposed legislation. 3.2.2

Inquiries in South Africa

In South Africa, parliamentarians may also use interpellation rights as well as committee and parliamentary debates to push the government to support the treaties discussed here.107 The non-ratification of the ICESCR triggered particularly substantial criticism. After the Mandela administration signed the treaty in 1994, no further action was taken for some time. In 2007 various human rights NGOs started a campaign for the ICESCR’s ratification, urging the government and members of parliament to take action.108 In this context, members from small opposition parties such as the Congress of the People and the Freedom Front Plus inquired about the government’s reasons for non-ratification.109 Other examples of executive hesitancy to embrace treaties also received critical scrutiny. In 2008, a member of the ANC inquired about the reasons for delay in ratifying the OP to the CRC on the involvement of

Sixteenth Series, Vol. IX, No. 30, 6 May 2015, 533–4. Ibid., 547, 557, 576, No. 31, 7 May 2015, 112, 127. 105 The Citizenship (Amendment) Bill, 2019, Bill No. 370 of 2019, as introduced in Lok Sabha, http://​164​.100​.47​.4/​BillsTexts/​LSBillTexts/​Asintroduced/​370​_2019​_LS​ _Eng​.pdf. 106 Lok Sabha Debate, Seventeenth Series, Vol. VI, Second Session, 2019/1941, 9 December 2019, 383. 107 Parliament of the Republic of South Africa, Rules of the National Assembly, 9th edition, 26 May 2016, Chapter 7 and 10. 108 Blacksash, ‘Making Human Rights Real, Campaign to Ratify ICESCR’, www​ .blacksash​.org​.za/​index​.php/​15​-campaigns/​archived​-campaigns/​94​-campaign​-to​-ratify​ -icescr. 109 PMG, ‘Questions and Replies: Question No. 1225’, Submitted on 4 May 2010, www​.pmg​.org​.za/​node/​21347; Question & Replies: Justice & Constitutional Development, 15 March 2013, https://​pmg​.org​.za/​question​_reply/​444/​. 103 104

Promoting

67

children in armed conflict.110 In 2017, a member of the Freedom Front Plus posed a question about the government’s reasons for non-ratification of the OP to the ICESCR despite the constitutional obligation to respect human rights.111 Two years later, a member of the DA asked for an explanation for the duration of the ratification of the OP to CAT, which South Africa ratified 13 years after signing it.112 At times, the international treaty regimes played a more indirect role in parliamentary debates. For instance, a parliamentary member of the DA in opposition attacked the relatively late submission of reductions pledges to the UNFCCC Secretariat prior to the Paris meeting as an indication of ‘fail[ure] to take global warming and the impact it has on communities seriously’.113 Some years later a member of the DA suggested that the Department of Environment’s authorization of two coal plants would be contrary to South Africa’s NDC under the Paris Agreement.114 However, because South Africa was rather quick to ratify the key human rights treaties, the Rome Statute and the Paris Agreement, parliamentarians often did not have many reasons to push for further action. Only in the context of withdrawal from the ICC did parts of the opposition become active promoters of the Court.115 3.2.3

The German Opposition and the Push for Ratification

In Germany, parliamentarians may pose questions to the government about a certain policy that needs to be answered.116 While the primary function is to decrease the information gap between the government and legislature, it may also be used to control and criticize government action or inaction.117 Moreover, parliamentary groups from the majority as well as the minority may table motions urging the Bundestag to make a decision on a particular

110 PMG, ‘International Treaties on Children and the Disabled: Department of Foreign Affairs briefing’, 13 June 2008, https://​pmg​.org​.za/​committee​-meeting/​9274/​. 111 PMG, Question NW2718 to the Minister of Justice and Correctional Services, 5 January 2017, https://​pmg​.org​.za/​committee​-question/​4497/​. 112 NCOP Security and Justice, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: briefing, with Deputy Minister, 19 March 2019, https://​pmg​.org​.za/​committee​-meeting/​28159/​. 113 PMG, National Assembly, 2 September 2015, https://​pmg​.org​.za/​hansard/​28396/​ 114 Question NW2550 to the Minister of Environmental Affairs, 21 September 2018, https://​pmg​.org​.za/​committee​-question/​10040/​. 115 Chapter 3.3. 116 A. Deutelmoser and J. Pieper, ‘Das parlamentarische Fragerecht – eine hypertrophe Entwicklung?’, NVwZ [2020], 839. 117 H.H. Klein and Schwarz, ‘Art. 43’, in G. Dürig, R.Herzog and R. Scholz (eds), Grundgesetz-Kommentar (Beck, 96. Ergänzungslieferung 2021), para. 76.

68

Treaties in parliaments and courts

topic. On this basis, parliamentary groups in opposition may attempt to trigger debate and advance an alternative policy vision, also in relation to foreign affairs.118 Furthermore, the parliamentary groups in opposition may introduce an approval bill on a treaty from the floor of the Bundestag to put the government under pressure and speed up the decision-making process.119 Inquiries, motions and draft bills have been used to push for ratification of the treaties discussed here in the rather rare cases when the German government did not support them. In the early 1990s, the parliamentary group of the SPD in opposition tabled an approval law to the OP to the ICCPR in the Bundestag providing for an individual communications procedure to the Human Rights Committee.120 The government had not signed the OP on behalf of Germany and challenged the competence of the Bundestag to introduce bills from the floor of the Bundestag on approval laws as a violation of the proper separation of powers.121 This led to an exceptional alliance of the majority and minority parliamentary groups. The legal committee of the Bundestag suggested that the jurisprudence of the Constitutional Court would not forestall parliamentary initiatives on approval laws.122 Moreover, in relation to the substantive question, the parliamentary majority in the legal committee supported the opposition bill against the government, highlighting that ratification of the OP to the ICCPR would send a strong signal to the world.123 In October 1992 the Bundestag unanimously adopted the approval law on the OP, which had been initiated by the opposition.124 However, such initiatives by the opposition are most of the time unsuccessful. When the Social Democratic parliamentary group in opposition tabled an approval law to CAT,125 the treaty was only ratified after the parliamentary majority had tabled its own approval law including an interpretative declaration.126 Similarly, the parliamentary group of the SPD’s motion to ratify the

118 Ismayr, ‘Bundestag’, 184–5; J. Krause, ‘The Role of the Bundestag in German Foreign Policy’, in W.-D. Eberwein and K. Kaiser (eds), Germany’s New Foreign Policy: Decision-Making in an Interdependent World (Palgrave 1998), 157 (158). 119 Article 76(1) of the Basic Law; on the functions of the right of initiation see J. Kersten, ‘Art. 76’, in G. Dürig, R.Herzog and R. Scholz (eds), Grundgesetz-Kommentar (Beck, 86. Ergänzungslieferung 2019), paras 1–3; on the role of the opposition in relation to international law more generally Arndt, ‘Praxis’, 105–6. 120 Bundestag, Drucksache 12/556, 16 May 1991. 121 Bundestag, Drucksache 12/2388, 7 April 1992, 4; see also Plenarprotokol 12/113, 15 October 1992, 9594; 9597–8. 122 Bundestag, Drucksache 12/2388, 7 April 1992, 4. 123 Ibid., 5. 124 Bundestag, Plenarprotokoll 12/113, 15 October 1992; 9593–600. 125 Bundestag, Drucksache 11/3668, 7 December 1988. 126 Bundestag, Drucksache 11/6370, 7 February 1990,

Promoting

69

CRC without reservations was rejected by the majority parties, which instead supported their own draft.127 Nonetheless, even if opposition action does not affect the substantive outcome of a treaty, it might accelerate the treaty-making process or force the executive to explain its stance. In fact, acceleration of treaty ratification was a key concern behind a minor interpellation (Kleine Anfrage) of the Green Party on international climate change law. In 2013, the Green Party asked at what point in time the government would table the approval law on the second commitment period of the Kyoto Protocol (Doha amendment) in the Bundestag.128 While it is not clear whether the interpellation contributed to the tabling of an approval law by the majority parties 21 months later,129 the government at least was forced to state the reasons for the perceived slow progress on the matter. At times, the parties in opposition may also promote treaties to show that an alternative policy to the government’s opposition exists. In 2018, the Left Party used a minor interpellation to criticize the Merkel IV government for ‘blocking’ the draft of the Business and Human Rights Treaty and tabled a motion asking the government to support the treaty-making process as a ‘historical opportunity for a binding international agreement’.130 The government should work towards a binding treaty document that obliges multinational corporations to comply with human rights in their supply chains and support the creation of an international court for human rights.131 In the same year, the parliamentary group of the Green Party tabled an (unsuccessful) motion, which was supported by the Left Party, suggesting ratification of the OP to the ICESCR. The opposition groups criticized that the government had taken no action even though it had promised its ratification in the coalition treaty.132 In 2020, in the context of press reports about COVID-19 outbreaks and inhumane working conditions for migrant workers in the meat industries, a Green parliamentarian pointed to the necessity to sign and ratify the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CRMW).133 Through these motions, the opposition attempted to challenge the 127 Bundestag, Drucksache 12/1547, 13 November 1991, 1; Drucksache 12/1535, 12 November 1991, 7. 128 Bundestag, Drucksache 17/12799, 18 March 2013. 129 Bundestag, Drucksache 18/3582, 17 December 2014. 130 Bundestag, Drucksache 19/5746, 13 November 2018; Drucksache 19/961, 27 February 2018. 131 Bundestag, Drucksache 19/961, 27 February 2018. 132 Bundestag, Drucksache 19/4554, 26 September 2018; on the rejection Drucksache 19/10720, 6 June 2019. 133 Bundestag, Drucksache 19/176, 17 September 2020, 22089; for earlier claims Bundestag, Drucksache 16/10208, 10 September 2008; Drucksache 19/13172, 12 September 2019.

Treaties in parliaments and courts

70

government’s foreign policy by pointing to alternative policy avenues. When the Green Party became part of the governing coalition with Chancellor Olaf Scholz, one of these alternatives was put into practice. In November 2022, the Bundestag passed a law on joining the OP to the ICESCR.134 Beyond these pleas for participation, the opposition also criticized executive measures as violating existing human rights treaties. For instance, the Left Party suggested that deportations of underaged refugees would conflict with the CRC and that the high number of homeless people could not be squared with the ICESCR.135 The Green Party insinuated that the government would not do enough to protect refugee children from violence in shared accommodation despite its obligations under Article 3 and 19 of the CRC.136 The Green Party also claimed that the planned reform of the guardianship law would not live up to the German obligations under the CRPD.137 3.2.3

Supportive ‘Sense-of’ Resolutions in the US

In the US, the Senate and the House may use ‘sense of’ resolutions to express an opinion on a particular topic.138 Even though not legally binding, they are a means to signal support for a certain policy position prevailing in the respective chambers of Congress.139 At times, such resolutions will not be adopted by the majority and remain in the draft stage. In any case, ‘sense-of’ resolutions are used to flag the foreign policy views of a chamber of Congress or of certain members of the House or Senate.140 Members of Congress often tabled such resolutions to urge the respective administrations or the Senate to embrace certain human rights treaties. When the Bush I administration did not sign the CRC in the early 1990s on behalf of the US, the Democrat-dominated House passed resolution 312 with various Republican co-sponsors pressing the administration to forward the treaty to the Senate for advice and consent.141 The Senate issued a similar ‘sense-of-Senate’ resolution sponsored by 61 Senators (among them 16 Republicans) emphasizing that ‘the issue of children’s rights and their well-being is important

Bundestag, Drucksache 608/22, 25 November 2022. Bundestag, Plenarprotokoll 18/210, 16 December 2016, 21064. 136 Bundestag, Drucksache 19/27535, 12 March 2021. 137 Bundestag, Drucksache 19/27293, 3 March 2021. 138 Davies, ‘Resolutions’, 1. 139 Ibid. 140 Ibid. 141 H. Res. 312, 101st Congress, 30 January 1990. 134 135

Promoting

71

both to the United States and the world at large’.142 In 1990, 12 Republican Congresswomen urged President Bush to support CEDAW ratification because this would enhance the US’ credibility as an advocate for human rights in international fora.143 The 1991 House Resolution 116, which demanded that CEDAW should be tabled in the Senate, received 374 votes in favour (among them more than 100 by Republicans) and 48 against.144 During the Clinton presidency, 68 Senators urged the administration to submit CEDAW to the Senate, signalling that the two-thirds majority threshold of 67 votes in favour would be crossed.145 After hearings in the Senate Committee on Foreign Relations, the Committee approved the treaty in October 1994 by a vote of 13 to 5.146 Even after the ‘Gingrich Revolution’ had dampened the prospects of certain human rights treaties,147 some members of Congress continued to promote them. In October 1999, 111 members of Congress signed a letter in support of CEDAW challenging the obstructive stance of Senator Helms.148 Around the same time, Democratic Senator Barbara Boxer sponsored a resolution endorsing CEDAW with the support of various Democratic and some Republican Senators.149 After the Democrats had won the Senate majority in the midterms of 2002, Senators Joe Biden and Barbara Boxer successfully lobbied for a CEDAW hearing connecting its ratification to the US fight against the Taliban and the protection of women’s rights abroad.150 However, even though the Senate Foreign Relations Committee voted by 12 to 7 to transmit CEDAW to the Senate,151 the treaty was not considered in the full Senate.152 Members of Congress also supported the CRPD. During the presidency of George W. Bush, the House adopted House Concurrent Resolution 134 urging the administration to ‘play a leading role in the drafting of a United Nations

142 S. Res. 231-101st Congress, 5 April 1990; Cosponsors, S. Res. 231-101st Congress, 5 April 1990. 143 Baldez, CEDAW, 161. 144 H. Res. 116, 102nd Congress, 20 March 1991; Final Vote Results for Roll Call 330 on H. Res. 116, 22 October 1991. 145 Baldez, CEDAW, 167. 146 However, the treaty was not passed on to the full Senate because Republican Senators intended to decide the matter after the mid-term elections: Baldez, CEDAW, 169–70. 147 Chapter 2.1.2. 148 Baldez, CEDAW, 173–4. 149 Ibid, 174–5. 150 Senate, 197th Congress, 2nd Session, Exec. Rept. 107-9, 6 September 2002; on the context see Baldez, CEDAW, 176. 151 Senate, 197th Congress, 2nd Session, Exec. Rept. 107-9, 6 September 2002. 152 Baldez, CEDAW, 178.

Treaties in parliaments and courts

72

[Disability] convention and to work toward its adoption’.153 The House Foreign Affairs Committee even adopted the resolution unanimously in 2004, but Republican majority leader Tom DeLay did not schedule the resolution for a vote on the House floor.154 Generally, between 2007 and 2015, Democratic members of the House tabled a resolution ‘expressing the sense of the House of Representatives that the United States should become an international human rights leader by ratifying and implementing certain core international conventions’.155 Besides these pleas for participation, human rights treaties at times were used to criticize the government’s foreign policy. For instance, members of Congress pointed to violations of UN human rights obligations through US government action during the Bush II presidency. Faced with reports about the Central Intelligence Agency’s (CIA) ‘enhanced interrogation techniques’ during President Bush’s ‘War on Terror’, some members of Congress called out CAT violations. The executive summary of the study of the Senate Select Committee on Intelligence on the Central Intelligence Agency’s interrogation programme critically assessed the debates about potential violations of CAT in the Bush administration.156 Republican Senator Susan Collins highlighted that according to CAT, torture is not justified, even in war.157 Moreover, she stressed that ‘[t]he prohibition against torture in both U.S. law and international law is not based on an evaluation of its efficacy at eliciting information’, but ‘was put in place because torture is immoral and contrary to our values’.158 Even though the debate on CAT concerned compliance with human rights law rather than joining a UN human rights treaty, it demonstrates that some members of Congress regard such treaties as a standard through which one might assess the executive’s action. During the presidency of Donald Trump, some Congress members continued to push for human rights treaty ratification. For instance, in March 2019, two members of the House sponsored a resolution pushing for the ratification H. Con. Res 134, 109th Congress, 19 April 2005. T.J. Melish, ‘From Paradox to Subsidiarity: The United States and Human Rights Treaty Bodies’, Yale Journal of International Law 34 (2009), 389, fn. 54. 155 See for instance H.Res. 285, 114th Congress (2015-2016), 21 May 2015; H. Res. 1169, 110th Congress (2007–8), 1 May 2008. 156 Report of the Senate Select Committee on Intelligence. Committee Study of the Central Intelligence Agency’s Detention and Interrogation Program, 9 December 2014, S. Report 113-288; on the context C. Apodaca, Human Rights and U.S. Foreign Policy (Routledge 2019), 77–81. 157 Press Releases, ‘Sen. Collins Views on Senate Intelligence Committee Report on CIA Interrogation Program’, 9 December 2014, www​.collins​.senate​.gov/​newsroom/​sen​ -collins​-views​-senate​-intelligence​-committee​-report​-cia​-interrogation​-program. 158 Ibid. 153 154

Promoting

73

of CEDAW.159 When the UN Special Rapporteur on extreme poverty and human rights, Philip Alston, released a critical statement on the level of inequality in the United States and its implications on human rights in late 2017,160 Democratic Senator Bernard Sanders and Democratic Representative Terri Sewell together with several other members of Congress urged the administration to transmit the CRC to the Senate and criticized violations of treaty commitments under CERD.161 Also, some Democratic Senators expressed concerns about the establishment of the Commission of Unalienable Rights with its emphasis on natural law, calling it ‘a term sometimes used in association with discrimination against marginalized populations’.162 In response to the Trump administration’s travel ban imposing travel restrictions on nationals of Iran, Yemen, Libya, North Korea, Somalia, Syria and Venezuela,163 the House passed the No Ban Act in June 2020 by 233 to 183 votes.164 The act, which was adopted largely along party lines, was supposed to invalidate the executive order.165 Even though the Act did not directly attack the administration’s policy for violating UN human rights treaties, some members of Congress praised it as demonstrating respect to ‘our nation’s commitment to human and civil rights’.166 Once more, this example shows that some members of Congress assess the President’s policy in the light of international human rights.

159 H. Res. 200, 116th Congress (2019–20), 8 March 2019; for the history see Baldez, CEDAW, 173. 160 Statement on Visit to the USA, by Professor Philip Alston, United Nations Special Rapporteur on Extreme Poverty and Human Rights, 15 December 2017, www​ .ohchr​.org/​EN/​NewsEvents/​Pages/​DisplayNews​.aspx​?NewsID​=​22533. 161 Congress of the United States, Letter to Nikki Haley, U.S. Permanent Representative to the United Nations, 12 June 2018, www​.sanders​.senate​.gov/​press​ -releases/​sanders​-and​-sewell​-call​-on​-trump​-to​-honor​-treaty​-obligations​-in​-response​-to​ -scathing​-un​-report/​. 162 C. Morello, ‘State Department Launches Panel Focused on Human Rights and Natural Law’, 8 July 2019, www​.washingtonpost​.com/​world/​national​-security/​ state​-department​-to​-name​-panel​-focused​-on​-human​-rights​-and​-natural​-law/​2019/​07/​ 06/​3bfe001e​-9f54​-11e9​-b27f​-ed2942f73d70​_story​.html​?noredirect​=​on​&​utm​_term​=​ .c1fd3ae318ed. 163 Executive Order 13780, 6 March 2017, www​.dhs​.gov/​publication/​executive​ -order​-13780​-protecting​-nation​-foreign​-terrorist​-entry​-united​-states​-initial; on the context see H. Koh, The Trump Administration and International Law (OUP 2018), 22–30. 164 H.R. 2214, 116th Congress (2019–20), 10 April 2019, passed in House on 22 June 2020. 165 Only two Republicans voted in favour of the law. 166 For instance Press Release, Congressman Kildee Applauds Passage of No Ban Act, 22 July 2020, https://​dankildee​.house​.gov/​media/​press​-releases/​congressman​ -kildee​-applauds​-passage​-no​-ban​-act.

74

Treaties in parliaments and courts

In relation to the emerging international criminal law, some members of Congress urged the Bush I and Clinton administrations in public hearings to support the establishment of a permanent international criminal court in international negotiations since the early 1990s.167 For instance, Senators and members of the House of Representatives called on the Clinton administration ‘to make every effort to advance’ the cause of an international criminal court, which would ‘strengthen the international rule of law’ and ‘serve the interests of the United States and the world community’.168 In July 1997 – one year before the Rome Conference – some Democratic House members introduced House Joint Resolution 89 calling on the President ‘to continue to support and fully participate in negotiations at the United Nations to conclude an international agreement to establish an international criminal court’.169 After the adoption of the Rome Statute, Democratic members of Congress no longer called for ratification, because – like the Clinton administration – they disagreed with the outcome.170 Some members of Congress, however, endorsed the use of the court via the SC as an ad hoc institution to address atrocity crimes. The Bush II administration supported the SC referral of the situation in Sudan to the ICC, but some members of Congress suggested using the ICC more often. In 2009, some Democratic House members generally urged President Obama to support United Nations Security Council referrals of situations involving genocide, war crimes, and crimes against humanity to the International Criminal Court, to cooperate with investigations and prosecutions conducted by the International Criminal Court, and participate as an observer at meetings of the Assembly of States Parties to the Rome Statute.171

In May 2013, a small number of Democratic and Republican House members suggested to try Syrian President Bashar al-Assad before the ICC for committing war crimes and crimes against humanity in the Syrian civil war and called on the SC to refer the situation of Syria to the ICC.172 After a chemical weapons attack in Damascus five months later, Democratic Senator Cardin

167 On this see M. Scharf, ‘Getting Serious About an International Criminal Court’, Pace International Law Review 6 (1997), 103 (105). 168 Joint Resolution, 103rd Congress, 1st Session, S.J. Res. 32 (103rd), 29 June 1993; see also H.R.2333 – Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, 30 April 1994. 169 H. J. Res. 89, 105th Congress (1997–8), 31 July 1997. 170 On this see Chapter 2.1.3. 171 H. Con. Res. 97, 111th Congress (2009–10), 4 April 2009. 172 H. Res. 229, 113th Congress (2013/14), 21 May 2013.

Promoting

75

submitted a similar resolution to the Senate Foreign Relations Committee.173 During the presidency of President Trump, five Democratic Senators pushed to involve the ICC in the persecution of atrocity crimes committed by the Burmese military against the Rohingya.174 In 2020, one member of the House then went beyond calling for the referral of a particular situation to the ICC. Representative Ilhan Omar referred House Resolution 855 to the Committee on Foreign Affairs, ‘[e]xpressing the sense of the House of Representatives that the United States should ratify the Rome Statute and join the International Criminal Court’.175 Reacting to obstructive measures by the Trump administration, the resolution called on the Department of State to lift ‘any visa restrictions […] on International Criminal Court personnel’.176 More generally, the resolution was part of a foreign policy package reversing previous government’s positions, which Representative Omar claimed to be ‘at odds with our commitment to the rule of law, accountability, and to the principle that no one is above the law’.177 Even though the Trump administration did not take up any of these proposals, they are evidence for some support of a more engaging policy towards the ICC in the US Congress. Similarly, some members of Congress endorsed stronger action to fight climate change on the international level. Already in the debate about the UNFCCC, some Senators had criticized the convention as not being ambitious enough.178 While members of Congress were hesitant to call on the President to work towards US ratification of the Kyoto Protocol,179 one Republican and 25 Democratic House members proposed the International Climate Cooperation Re-engagement Act of 2007 in response to the Bush II administration’s rejection of the international climate change regime.180 The Act proposed binding mitigation commitments by all major emitting countries under the UNFCCC framework as the proper US negotiating approach.181 In a House debate on climate change during the Paris negotiations, a Democratic repre-

Congressional Record, Senate Resolution 219, 9 September 2013, S. 6298–9. Senate Resolution 360, 115th Congress, 13 December 2017. 175 H. Res. 855, 116th Congress (2019–20), 12 February 2020. 176 H. Res. 855, 116th Congress (2019–20), 12 February 2020. 177 P. Goodenough, ‘Ilhan Omar’s “Progressive” Foreign Policy Vision Embraces the International Criminal Court’, 13 February 2020, https://​cnsnews​.com/​article/​ international/​patrick​-goodenough/​ilhan​-omars​-progressive​-foreign​-policy​-vision​ -embraces. 178 Senate, United Nations Framework Convention on Climate Change, Ex. Rept. 102-55, 14 www​.barrasso​.senate​.gov/​public/​Files/​SExecRept​_102​_55onUNFCCC​ _102​_Congress​.pdf. 179 See Chapter 2.1.3. 180 H.R. 2420, 110th Congress, 28 June 2007, Section 102. 181 Ibid. 173 174

Treaties in parliaments and courts

76

sentative called climate change ‘the greatest threat to our planet’ and suggested that ‘Paris must be the floor, not the ceiling, to our ambition’.182 Various Democratic Senators then expressed support for the Paris Agreement in the context of the Trump administration’s withdrawal declaration.183 Even though such resolutions were rarely adopted because they lacked majority support, they indicate the support for the treaties discussed here in some quarters of Congress.184

3.3

CRITIQUES OF WITHDRAWAL

Parliamentarians may also promote a treaty regime by opposing withdrawal. Through interpellations, motions and public letters, parliamentarians may challenge an executive withdrawal policy. Thereby, they provide voters with a different policy option and put pressure on the executive to explain its position. From a constitutional perspective, parliamentary opposition to renouncing a treaty may become particularly effective in the case that parliaments need to be involved in the treaty termination process. If parliament possesses such power, it may stop a withdrawal by denying its consent to the executive’s withdrawal decision.185 The constitutional rules on the separation of powers in foreign affairs thus may affect the outcome of executive withdrawal action.186 While in India and Germany no such practice on the treaties discussed here exists, announcements of withdrawal in the US and South Africa led to parliamentary engagement with the issue. 3.3.1

Challenging Treaty Withdrawal in the US

According to constitutional practice in the US, the executive may withdraw the US from an Article II treaty without prior Senate consent.187 In Goldwater

H9085–9086, 9 December 2015. See Chapter 3.3.1. 184 Davies, ‘Resolutions’, 2. 185 On treaty exit and intra-branch conflict in general L. Helfer, ‘Treaty Exit and Intra-Branch Conflict at the Interface of International and Domestic Law’, in C. Bradley (ed.), The Oxford Handbook of Comparative Foreign Relations Law (OUP 2019), 425. 186 From the perspective of international law, the legality of withdrawal depends on whether the treaty contains withdrawal provisions and on the nature of the treaty, Articles 54 and 56 of the VCLT. 187 Restatement (Fourth), § 313, Comments, b–d; J. Galbraith, ‘The President’s Power to Withdraw the United States from International Agreements at Present and in the Future’, AJIL Unbound 111 (2017), 445; C. Bradley, ‘Treaty Termination and Historical Gloss’, Texas Law Review 92 (2014), 773. 182 183

Promoting

77

v Carter, the Supreme Court held that there exists no jurisdictional base for deciding on whether the Senate needed to provide consent to President Carter’s withdrawal from a mutual defence treaty with Taiwan in 1978/9.188 Even though some scholars promote congressional involvement in treaty termination,189 the mainstream position enshrined in Restatement (Fourth) on Foreign Relations Law holds that ‘the President has the authority on behalf of the United States in […] withdrawing the United States from treaties, either on the basis of terms in the treaty allowing for such action (such as a withdrawal clause) or on the basis of international law that would justify such an action’.190 Accordingly, neither Congress nor the Senate formally participated in the Trump administration’s announcements of withdrawal from Article II treaties such as the Treaty of Amity, Economic Relations, and Consular Rights with Iran; the OP to the 1961 Vienna Convention on Diplomatic Relations; and the Intermediate-Range Nuclear Forces Treaty. Moreover, neither the Senate nor Congress provided consent to the withdrawal from executive agreements such as the Paris Agreement and informal arrangements such as the Joint Comprehensive Plan of Action (‘Iran deal’). Because of the Goldwater precedent, members of Congress did not challenge the legality of these withdrawal actions from a foreign relations law perspective. Rather, opposition politicians used public letters and issued resolutions challenging the executive’s approach. Prior to the withdrawal from the Paris Agreement, 40 Democratic Senators urged President Trump, in a public letter, to keep the US part of the treaty.191 After the announcement of the withdrawal, Democratic members of the House tabled a draft resolution, with 182 Democratic co-sponsors ‘strongly disapprov[ing] of the President’s 188 Goldwater v Carter, 444 U.S. 996 (1979), 13 December 1979; see also Kucinich v Bush, 236 F. Supp. 2d 1 (D.D.C. 2002), 30 December 2002. 189 H. Koh, ‘Presidential Power to Terminate International Agreements’, Yale Law Journal Forum 128 (2018), 432 (454); ibid, ‘Could the President Unilaterally Terminate All International Agreements? Questioning Section 313’, in P. Stephan and S. Cleveland (eds), The Restatement and Beyond: The Past, Present, and Future of U.S. Foreign Relations Law (OUP 2020), 67; B. Ackermann and D. Golove, ‘Can the Next President Repudiate Obama’s Iran Agreement?’, The Atlantic, 10 September 2015, www​.theatlantic​.com/​politics/​archive/​2015/​09/​can​-the​-next​-president​-repudiate​ -obamas​-iran​-agreement/​404587/​; in relation to congressional–executive agreements, A. Sia, ‘Withdrawing from Congressional-Executive Agreements with the Advice and Consent of Congress’, Fordham Law Review 89 (2020), 797. 190 Restatement (Fourth) of The Foreign Relations Law of the United States (2018), § 313; Restatement (Third) of The Foreign Relations Law of the United States (1986), § 339. 191 United States Senate, Letter to President Donald Trump, 24 May 2017, www​ .cardin​.senate​.gov/​imo/​media/​doc/​Dem​%20Paris​%20climate​%20letter​%205​-24​-17​ .pdf.

Treaties in parliaments and courts

78

announcement to withdraw the United States from the Paris Agreement’ and calling on the President to reverse the decision.192 The draft resolution, however, was not adopted with the House majority. More indirectly, in May 2019 the House of Representatives approved the ‘Climate Action Now Act’, sponsored by Democrat Alexandria Ocasio-Cortez, prohibiting the use of funds to withdraw from the Paris Agreement and ‘direct[ing] the President to develop a plan for the United States to meet its nationally determined contribution under the Paris Agreement’.193 The ‘Climate Action Now Act’ received a majority of 231 favourable votes in the House, with 190 Republicans voting against (3 Republicans voted in favour).194 Even though the proposal stalled in the Senate,195 the vote in the House demonstrates that there exists considerable support for the international agreement in Congress. Furthermore, several Democratic members of Congress took part in a Conference of the Parties (COP) meeting in 2019 under the leadership of the Speaker of the House, Nancy Pelosi, to demonstrate that some US politicians aim to remain engaged with the UNFCCC framework.196 In relation to the Trump administration’s withdrawal from the UN Human Rights Council the congressional criticism was less direct, but still present. The UN Human Rights Council has been established by the GA as a subsidiary organ with certain elected member states.197 Six months after the Trump administration declared the US would leave the Council, 46 members of Congress (all but one of whom were Democrats) reaffirmed their commitment to the UDHR on the occasion of its 70th anniversary. House Resolution 1174 stressed that the Human Rights Council was created ‘to promote and protect human rights around the world’.198 Democratic members of Congress thus used public letters, resolutions and draft laws to challenge the executive’s withdrawal policies and point to alternatives.

H. Res. 390 – 115th Congress (2017–18), 16 June 2017. H.R. 9. Climate Action Now Act, 116th Congress, 2 May 2019. 194 Final Vote Results for Roll Call 184, HR 9, 2 May 2019, http://​clerk​.house​.gov/​ evs/​2019/​roll184​.xml; R. Beitsch and M. Green, ‘House Votes to Block Trump from Exiting Paris Climate Accord’, 2 May 2019, https://​thehill​.com/​homenews/​house/​ 441785​-house​-votes​-to​-block​-trump​-from​-exiting​-paris​-climate​-accord. 195 M. McConnell, ‘Ill-Fated Paris Deal Will Go Nowhere in the Senate’, 2 May 2019, www​.republicanleader​.senate​.gov/​newsroom/​remarks/​mcconnell​-ill​-fated​-paris​ -deal​-will​-go​-nowhere​-in​-the​-senate. 196 V. Stracqualursi, ‘Pelosi to Lead Group of Democratic Lawmakers to UN Climate Change Conference’, CNN, 30 November 2019, https://​edition​.cnn​.com/​2019/​ 11/​30/​politics/​nancy​-pelosi​-un​-climate​-change/​index​.html. 197 GA, Res 60/251, 3 April 2006. 198 H. Res. 1174, 115th Congress, 10 December 2018. 192 193

Promoting

3.3.2

79

The DA and the ICC Withdrawal in South Africa

In South Africa, the parliamentary response to the Zuma administration’s announced withdrawal from the ICC went even further. While the ICC had enjoyed the support of all major parties during its inception, the failure of the Zuma administration to detain Sudanese President Omar Al-Bashir during his 2015 visit to South Africa despite existing ICC arrest warrants created considerable rifts between the parties.199 The executive’ failure to prevent Al-Bashir’s exit from South Africa – ignoring an order by the High Court of South Africa to the contrary – triggered a divisive parliamentary debate.200 Members of the ANC government pointed to the need to secure regional peace and criticized the ICC’s alleged double standards.201 Various politicians in opposition challenged the government policies towards the ICC.202 The largest opposition party, the DA, became a supporter of the Court. Stevens Mokgalapa, member of parliament for the DA, posed the rhetorical question: ‘Why did the government flagrantly ignore our own court and abandon our human rights and rule of law-based Constitution and foreign policy?’203 He suggested that ‘Al-Bashir should have been arrested because we are morally, legally, and constitutionally duty bound to comply with domestic law and international obligations’.204 His fellow party member James Selfe said that ‘the government colluded to defy the International Criminal Court and our Courts’ and created a ‘reputation as an unreliable country in the international community – as a country that does not honour its commitments’.205 Two months after the parliamentary debate, Mmusi Maimane, leader of the DA, demanded that a committee be set up to assess whether President Zuma needed to be impeached for disrespecting the rule of law in his handling of the Al-Bashir visit.206 Maimane claimed that the constitution and respect for the rule of law ‘were directly contravened by the executive, under the leadership of President Zuma, when they facilitated the escape of Sudanese President

199 On this F. Boehme, ‘“We Chose Africa”. South Africa and the Regional Politics of Cooperation with the International Criminal Court’, International Journal of Transitional Justice 10 (2016), 50. 200 Southern African Litigation Centre v. Minister of Justice and Constitutional Development and Others (27740/2015), High Court of South Africa, Gauteng Division, Pretoria, 24 June 2015, para. 2. 201 National Assembly, 23 June 2015, 202–10; 243–50. 202 Ibid, 194. 203 Ibid, 195. 204 Ibid, 199. 205 Ibid, 240–1. 206 National Assembly, 4 August 2015, 3.

80

Treaties in parliaments and courts

Omar al-Bashir from South Africa on 15 June’.207 According to Maimane, the executive acts constituted ‘a clear violation of the president’s oath to “obey, observe, uphold and maintain the Constitution and all other law of the Republic”’.208 Thus, Zuma would have to step down, in line with Section 89(1) a of the constitution, which calls for the President’s impeachment in case of a serious violation of the constitution or the law.209 The motion to establish such a committee failed, with 100 votes in favour and 211 against, also because of the consistently strong ANC majority in the National Assembly.210 Even though Maimane stressed that the violation of the separation of powers created the ground for impeachment and did not primarily rely on ignorance of the arrest warrant of the International Court, the DA’s support for the ICC became apparent. Accordingly, in response to the Zuma administration’s decision to announce its withdrawal from the ICC,211 the DA continued its pro-ICC policies. In October 2016, the DA brought a case against the government claiming that it lacked the constitutional basis to withdraw from the Court. For the first time in South African constitutional history, a party took another party to a court over a question of the separation of powers in foreign affairs. According to the DA politician James Selfe, the withdrawal announcement marked ‘a dramatic shift in South Africa’s standing in the international community and the country’s commitment to international justice’.212 The High Court of South Africa ruled in February 2017 that the Zuma administration’s withdrawal notification, without the consent of the South African parliament, violated the South African constitution.213 Because Section 231(2) of the constitution provides for parliamentary involvement in treaty-making, the same would pertain to treaty termination.214 Abiding by the decision, the Zuma adminis207 Statement issued by DA leader, Mmusi Maimane, Al-Bashir: DA moves to impeach Zuma, 4 August 2015, www​.politicsweb​.co​.za/​party/​albashir​-da​-moves​-to​ -impeach​-zuma​-​-mmusi​-maimane. 208 Ibid. 209 Ibid. 210 NA, 1 September 2015, 208–11. 211 See Instrument of Withdrawal, www​.capetalk​.co​.za/​articles/​193225/​south​ -africa​-to​-begin​-exit​-process​-from​-icc; H. Woolaver, ‘International and Domestic Implications of South Africa’s Withdrawal from the ICC’, 24 October 2016, www​ .ejiltalk​.org/​international​-and​-domestic​-implications​-of​-south​-africas​-withdrawal​ -from​-the​-icc/​. 212 G. Nicolson, ‘DA: ConCourt must declare ICC withdrawal illegal’, Daily Maverick, 24 October 2016, www​.dailymaverick​.co​.za/​article/​2016​-10​-24​-da​-concourt​ -must​-declare​-icc​-withdrawal​-illegal/​. 213 High Court of South Africa (Gauteng Division, Pretoria), Case No: 83145/2016, 22 February 2017. 214 Ibid; on the decision see Chapter 6.3.3.

Promoting

81

tration renounced the notification of withdrawal. However, it remained open whether the administration would approach parliament for approval to the renunciation. As discussions from January 2017 in a parliamentary committee on the Implementation of the Rome Statute of the International Criminal Court Act Repeal Bill show, the administration had a majority for its position in the ANC-dominated legislature.215 In the Committee on Justice and Correctional Services, ANC members of parliament criticized the ICC’s focus on Africa as well as its alleged ‘double standards’ given that Tony Blair was not prosecuted by the ICC for crimes committed in Iraq, that three permanent member states of the SC had not even signed the Rome Statute and that the Palestinian situation had not been investigated.216 Other ANC members pointed to the immunity of heads of state under customary international law and the negative repercussions of an Al-Bashir arrest for South Africa’s standing in Africa.217 Similarly, the EFF – the second largest opposition party, founded in 2013 – took a critical take on the ICC. Chief whip Floyd Shivambu condemned the focus of the Court on Africa and suggested that the ICC should instead arrest George Bush and Tony Blair for the Iraq war, Benjamin Netanyahu for Israel’s treatment of Palestinians, Barack Obama and Jacob Zuma for ‘colluding to kill Muammar Gaddafi’ and Cyril Ramaphosa for ‘killing workers in Marikana’.218 Instead of relying on the ICC, Africa should establish its own court to leave no space for ICC prosecutions.219 In contrast, members of the DA criticized the non-arrest of a statesman allegedly responsible for the death of 300,000 people and pointed to negative effects of the decision not to arrest Al-Bashir for the moral standing of South Africa in the world.220 Also, members of other smaller opposition parties expressed concerns about undermining the Court.221 In any case, after the High Court decision of February 2017, the debate lost some traction. The administration decided not to take steps to proceed with the withdrawal policy, in particular after the election of new President Cyril Ramaphosa. The DA continued to express support for the ICC. In its party manifesto for the 2019 elections, the DA promised to ‘[c]ontinue to recognise the importance of multilateralism and a rules-based international system governed by international law which includes reiterating our commitment to the

215 Committee on Justice and Correctional Services, 31 January 2017, https://​pmg​ .org​.za/​committee​-meeting/​23897/​. 216 Ibid. 217 Ibid. 218 National Assembly, 23 June 2015, 211. 219 Ibid, 210; 212. 220 Ibid. 221 Ibid.

82

Treaties in parliaments and courts

International Criminal Court’.222 Moreover, the Zuma administration had introduced the International Crimes Act into parliament, which aims at repealing the Implementation of the Rome Statute Act and emphasizes immunity of heads of state instead.223 When the Act was revived upon the reconstitution of parliament after the 2019 election, a DA politician decried the ‘bad piece of legislation which typifies the legacy of the Zuma administration, when the ANC acted on all of its worst instincts’.224 The Bill would aim at ‘gloss[ing] over the ill-fated decision of the Zuma administration to aid and abet the international criminal by the name of Omar al-Bashir, in the process diminishing our status as a responsible member of the international community’.225 This episode demonstrates that the DA as the parliamentary minority promoted South African engagement with the ICC, building on constitutional rules which, according to the High Court, call for the participation of parliament in treaty withdrawal.

3.4

SHARED TREATY POWERS AS OPPORTUNITY FOR OPPOSITIONAL ENGAGEMENT

Conceptions of the laws of foreign relations have some influence on how parliamentary actors may promote treaties. As the Indian example shows, sole executive treaty-making does not facilitate parliamentary support for treaties. Because the Lok Sabha and Rajya Sabha do not participate in the treaty-making process, Indian parliamentarians are not legally required to take a position on a treaty before its ratification. This means that fewer opportunities for parliamentary engagement exist. Indian parliamentarians may only rely on inquiries and parliamentary debates (for instance in the context of implementation) to question the executive’s position on a particular treaty. As has been shown, in relation to the treaties discussed here in the Indian case, such questions were directed towards garnering information, at times with a critical undertone. Motions to suggest an alternative policy, for instance on India’s stance on the ICC, were rare. This lack of engagement may partly stem from a general foreign policy consensus on such matters and from the strong role of regional parties in the

222 Democratic Alliance, Manifesto for Change. One South Africa for All, 2019, https://​cdn​.da​.org​.za/​wp​-content/​uploads/​2019/​02/​22160849/​A4​-Manifesto​-Booklet​ -Digital​.pdf. 223 International Crimes Bill, B 37-2017, 12 December 2017. 224 National Assembly, 29 October 2019, 5. 225 Ibid.

Promoting

83

Lok Sabha with little interest in foreign policy.226 However, parliamentary non-participation in treaty-making seems to be an additional explanatory factor. In South Africa, Germany and the US, parliamentarians need to engage with the treaties discussed here because the approval procedure requires them to take a position. In this, parliamentary groups discuss the advantages and disadvantages of joining or withdrawing from the particular treaty. The additional opportunity for engagement is often used to develop a policy position on the treaty. Such participation in the treaty-making process also seems to affect the general level of engagement with the treaties discussed here. Groups in opposition in Germany, South Africa and the US used inquiries, motions and ‘sense-of’ resolutions to question the government’s stance rather frequently. Germany’s non-ratification of some treaties received critical scrutiny by parliamentary groups in opposition. The Green and Left opposition groups used motions to urge the government to take action on the CMRW, the OP to the ICESCR and a Business and Human Rights Treaty. The opposition parliamentarians seemed to regard the treaties as validating their policy preferences for facilitated migration to Germany (Green Party), the justiciability of social rights (Green and Left Parties) and the necessity to create human rights obligations for transnational corporations (Left Party). In South Africa, parliamentarians in opposition inquired about why the executive did not take earlier action on the ICESCR. In the US, Democratic members of Congress frequently called on Presidents and the Senate to proceed with the ratification of the CRC, CEDAW and the CRPD and thus proposed an alternative to the weak ratification record on the human rights treaties. Moreover, parliamentary participation in treaty withdrawal enabled effective oppositional support for the ICC in the South African parliament. The DA opposed the Zuma administration’s withdrawal policies, claiming that the administration ‘officially abandoned Nelson Mandela’s commitment to a human rights-based foreign policy’ when not arresting Al-Bashir during his visit to South Africa.227 By taking the administration to court over its renunciation of the Rome Statute, the DA initiated the High Court’s decision, calling for parliamentary involvement in the treaty withdrawal.228 Even though the ANC-dominated parliament could have pushed the withdrawal through, the Zuma administration abandoned its withdrawal path.

226 On the success of regional parties in India see A. Ziegfeld, Why Regional Parties? Clientelism, Elites, and the Indian Party System (CUP 2016), 170–90. 227 NA, 1 September 2015, 138. 228 On this Chapter 6.3.3.

4. Shaping Under exceptional circumstances, parliament’s foreign relations power may even affect and shape the outcome of international negotiations. The potential veto of a legislative body may become a key concern of negotiators. This is the case when two conditions are fulfilled. First, the participation of the state in a multilateral treaty is in the interest of all other potential treaty parties because the treaty enshrines a goal that can only be achieved in a co-operative spirit among all. This is in particular the case if a treaty’s objective cannot be achieved without the participation of powerful states. For instance, China, the US and India seem to be in a beneficial negotiating position in the climate change context because the participation of the world’s strongest emitters is highly important for successful climate mitigation. Second, the state needs to credibly claim that a veto player in the domestic setting will prevent the ratification of the treaty if the treaty does not contain provisions with the preferred outcome for the domestic veto player. This criterion limits the use of foreign relations law as a bargaining tool to actors with a reputation for domestic opposition to international treaty-making. This is true in particular for the US, where the Senate has become the veto player par excellence.1 The experiences of domestic ratification failure make credible the threat of incapability to receive the required two-thirds majority in the Senate. In contrast, most states lack a veto player as strong as the US Senate, with a long history of non-ratification of treaties. In parliamentary systems such as South Africa or Germany, most of the time the legislature supports the foreign policy approach of the government and approves negotiated treaties without much debate. In India, parliament does not even participate in treaty-making. Accordingly, the example for parliament acting as an international law shaper originates from the US.

1 This does not mean that such effects can only be seen in the US. In relation to CETA, it has been suggested that the EU received a large range of concessions from Canada because domestic actors (including parliaments) at different levels indicated that they would only consent to the treaty under certain conditions: D. De Bièvre, ‘The Paradox of Weakness in European Trade Policy: Contestation and Resilience in CETA and TTIP Negotiations’, The International Spectator 53 (2018), 70 (79).

84

Shaping

4.1

85

THE PARIS AGREEMENT AND NON-BINDING TARGETS

During the Paris negotiations, the US negotiating team insisted on non-binding language on climate change mitigation commitments for developed countries and developing countries alike. More than a year before COP 21 in Paris, Todd Stern, the chief US negotiator of the Paris Agreement, highlighted that the US supported a proposal by New Zealand according to which ‘there would be a legally binding obligation to submit a “schedule” for reducing emissions, plus various legally binding provisions for accounting, reporting, review, periodic updating of the schedules, etc. But the content of the schedule itself would not be legally binding at an international level.’2 One month prior to the Paris meeting, Secretary of State John Kerry told the Financial Times that the Paris climate negotiations would not lead to a treaty legally requiring reductions of carbon emissions and would be different from the Kyoto Protocol.3 When the US submitted its Intended Nationally Determined Contribution to demonstrate its commitment to climate change mitigation before COP 21, it did not refer to these contributions as being legally binding.4 The US delegation even explicitly rejected proposals by the EU and small island states calling for the legal bindingness of nationally determined contributions. According to US negotiators, this would prevent high participation with and ambition within the agreement.5 Moreover, the US delegation was willing to risk the adoption of the negotiated document over the issue of the legal character of climate change mitigation commitments. Article 4(4) of the final circulating draft held that ‘[d]eveloped country Parties shall continue taking the lead by undertaking economy-wide absolute emission reduction targets. Developing country Parties should continue enhancing their mitigation efforts and are encouraged to move over time towards economy-wide emission reduction or limitation targets in the light of

2 T.D. Stern, Special Envoy for Climate Change, US Dep’t of State, ‘Seizing the Opportunity for Progress on Climate’, 14 October 2014, https://​2009​-2017​.state​.gov/​s/​ climate/​releases/​2014/​232962​.htm. 3 D. Sevastopulo and P. Clark, ‘Paris Climate Deal Will Not Be Legally Binding Treaty’, 11 November 2015, www​.ft​.com/​content/​79daf872​-8894​-11e5​-90de​ -f44762bf9896. 4 United States, Intended Nationally Determined Contribution, 31 March 2015, www4​.unfccc​.int/​sites/​submissions/​INDC/​Published​%20Documents/​United​%20States​ %20of​%20America/​1/​U​.S​.​%20Cover​%20Note​%20INDC​%20and​%20Accompanying​ %20Information​.pdf. 5 D. Bodansky, ‘The Paris Climate Change Agreement: A New Hope?’ AJIL 110 (2016), 288 (297).

86

Treaties in parliaments and courts

different national circumstances [emphasis added].’6 Article 4(4) of the draft thus clearly distinguished the normative character of the obligations of developed from those of developing countries. This version of the Paris Agreement was not acceptable for the US delegation. John Kerry threatened that the US would not support the deal if the ‘shall’ were not changed to ‘should’.7 According to the US delegation, the wording had been smuggled into the final draft at the last minute despite US rejection of such proposals in earlier drafts.8 In contrast, the delegations of some developing countries claimed that the ‘shall’ was the agreed language and the US challenge represented an unfair last-minute move to better the US position, crossing a red line on differentiation between developing and developed countries.9 In any case, the French Presidency around Laurent Fabius yielded to the American concerns in order to save the adoption of the Paris Agreement. The Secretariat declared the ‘shall’ stemmed from a typographical error. States thus could vote on the basis of a corrected final version incorporating the ‘should’. No new negotiation round, delaying the adoption, had to be opened.10

4.2

US FOREIGN RELATIONS LAW AS A BARGAINING TOOL

According to the Obama administration, the key reason for US insistence on (re-)introducing the non-binding ‘should’ into Article 4(4) of the Paris Agreement was US foreign relations law. In this view, the wording of Article 4(4) determined which actors had to be involved in the treaty-making process 6 Adoption of the Paris Agreement, Proposal of the President, Draft Decision, FCCC/CP/2015/L.9, 12 December 2015, 21, https://​unfccc​.int/​resource/​docs/​2015/​ cop21/​eng/​l09​.pdf. 7 U.S. Department of State, Press Release, John Kerry, Secretary of State, 12 December 2015, https://​2009​-2017​.state​.gov/​secretary/​remarks/​2015/​12/​250590​ .htm; see also L. Friedman, ‘How the World Solved the “Shall” Crisis and Reached a New Climate Accord’, E&E News, 14 December 2015, www​.eenews​.net/​stories/​ 1060029452; M. Eddy, ‘At Climate Talks, a Few Letters that Almost Sank the Deal‘, New York Times, 16 December 2015, www​.nytimes​.com/​interactive/​projects/​cp/​ climate/​2015​-paris​-climate​-talks/​at​-climate​-talks​-three​-letters​-almost​-sunk​-the​-deal; J. Vidal, ‘How a “Typo” Nearly Derailed the Paris Climate Deal’, The Guardian, 16 December 2015, www​.theguardian​.com/​environment/​blog/​2015/​dec/​16/​how​-a​-typo​ -nearly​-derailed​-the​-paris​-climate​-deal. 8 On this D. Bodansky, ‘Reflections on the Paris Conference’, Opinio Juris, 15 December 2015, http://​opiniojuris​.org/​2015/​12/​15/​reflections​-on​-the​-paris​-conference/​ 9 Vidal, ‘Typo’; M. Raman and H. Chiew, ‘Paris Agreement Adopted after Last Minute “Technical Corrections”’, 15 December 2015, https://​twnetwork​.org/​sites/​ default/​files/​TWN​_update17​.pdf. 10 Vidal, ‘Typo’.

Shaping

87

on the domestic level. After the adoption of the Paris Agreement, Kerry linked the drafting of Article 4(4) to the domestic treaty-making procedure. In a press release, he celebrated having ‘a binding agreement with respect to transparency and not having binding targets with respect to emissions or finance’ as the achievement of key US negotiation goals. Otherwise ‘a different kind of agreement’ would have been necessary.11 Kerry also emphasized that by correcting the perceived mistake in relation to the drafting of Article 4(4), the US ‘kept faith with our own negotiating standards and what we promised to Congress and the American people’.12 In an interview, Kerry adopted the argument of a US Senator that ‘this [agreement] doesn’t need to be approved by the Congress because it doesn’t have mandatory targets for reduction, and it doesn’t have an enforcement-compliance mechanism’.13 Other administration officials became even more explicit about the link with US foreign relations law. In a background briefing on the Paris Agreement, officials of the state department stressed that ‘the notion of the targets not being binding was really a fundamental part of our approach from early on’ because only such an agreement does not need to be submitted to the Senate.14 According to press reports, US diplomats were confident that the Senate did not need to be involved, because the targets are non-binding and ‘[t]he elements that are binding are consistent with already approved previous agreements’.15 In this reading, by simply replacing ‘shall’ with ‘should’, the Senate did not have to be involved in the domestic treaty-making process. While one may question whether domestic procedure was the only reason behind the administration’s insistence on non-binding language,16 it is true that the Senate had not been supportive of the development of the UNFCCC regime in the past. When the Clinton administration started negotiating the Kyoto

11 U.S. Department of State, 12 December 2015, https://​2009​-2017​.state​.gov/​ secretary/​remarks/​2015/​12/​250590​.htm. 12 Ibid. 13 J. Kerry, Secretary of State, ‘Interview with Chris Wallace, Fox News’ (12 December 2015), transcript, https://​2009​-2017​.state​.gov/​secretary/​remarks/​2015/​12/​ 250595​.htm. 14 U.S. Department of State, Press Release, Background Briefing on the Paris Climate Agreement (12 December 2015, https://​2009​-2017​.state​.gov/​r/​pa/​prs/​ps/​2015/​ 12/​250592​.htm. 15 E. King, ‘Paris Agreement “Does Not Need Senate Approval” Say Officials’, Climate Home News, 15 December 2015, www​.climatechangenews​.com/​2015/​12/​15/​ paris​-agreement​-does​-not​-need​-senate​-approval​-say​-officials/​. 16 On this see F. Lange, ‘Foreign Relations Law as a Bargaining Tool?’, in H. Aust and T. Kleinlein (eds), Encounters between Foreign Relations Law and International Law. Bridges and Boundaries (CUP 2021), 23.

88

Treaties in parliaments and courts

Protocol, the Senate adopted the (non-binding) Byrd–Hagel Resolution. By 95 to 0 votes, the Senators emphasized that the United States should not be a signatory to any protocol which would (A) mandate new commitments to limit or reduce greenhouse gas emissions for the Annex I Parties, unless the protocol also mandates new specific scheduled commitment for Developing Country Parties within the same compliance period, or (B) result in serious harm to the economy of the United States.17

By unanimously ruling out senatorial support for an agreement which differs in its legal bindingness for targets on greenhouse gas emission reductions between developed and developing countries, the Senators put considerable pressure on the administration’s negotiating position. When the Clinton administration accepted a differentiation scheme between developed and developing countries at Kyoto after an intervention by Vice-President Al Gore,18 it was obvious that the chances of getting the treaty through the Senate were slim. In response to the US signature of the Kyoto Protocol in November 1998, Republican Senator Chuck Hagel suggested that the signature ‘blatantly contradicts the will of the US Senate’.19 It was thus no surprise that the Clinton administration did not submit the Kyoto Protocol to the Senate.20 The Senate was regarded as the Kyoto Protocol’s dead end. Hesitance in Congress remained a well-known theme in US international climate change policy. Prior to the negotiations in Copenhagen, 49 Republicans in the House stressed that the US should not sign an agreement at Copenhagen which would ‘(A) result in significant harm to the economy of the United States; or (B) compromise American sovereignty by requiring the United States to submit to decisions of international inspection, compliance, and enforcement mechanisms’.21 The US should not allow for new mitigation commitments ‘without binding, verifiable, and enforceable commitments to limit or reduce greenhouse gas emissions for Developing Country Parties within the same compliance period’.22 Prior to the Paris negotiations, the chances for congressional acceptance of a binding mitigation scheme were

17 Byrd-Hagel Resolution, 105th Congress, 1st Session, S. RES. 98, https://​web​ .archive​.org/​web/​20100626110143/​http://​www​.nationalcenter​.org/​KyotoSenate​.html. 18 Agrawala and Andresen, ‘United States’, 465. 19 Cited after J. Cushman Jr., ‘U.S. Signs a Pact to Reduce Gases Tied to Warming’, New York Times, 13 November 1998, www​.nytimes​.com/​1998/​11/​13/​world/​us​-signs​-a​ -pact​-to​-reduce​-gases​-tied​-to​-warming​.html. 20 CRS Report for Congress, ‘Global Climate Change: Selected Legal Questions about the Kyoto Protocol’, 1 October 2002. 21 H. Res. 945, 111th Congress (2009–10), 3 December 2009. 22 Ibid.

Shaping

89

rather slim. Especially after the Republican success at the midterm elections of 2014, Republican majorities in the Senate and the House of Representatives signalled that they would support few policy initiatives of the Democratic President before the upcoming presidential elections. Whilst the Obama administration was negotiating the Paris Agreement in early December 2015, the House and Senate disputed the EPA’s competences to regulate climate change emissions under the Clean Air Act and attempted to block the legal basis for such regulations.23 Senate Joint Resolution 24 was based on the Congressional Review Act allowing Congress to over-rule rule-making by federal agencies with a ‘Resolution of Disapproval’.24 The resolution disapproved the rules submitted by the Environmental Protection Agency (EPA) under the Clean Power Plan and declared that the rules ‘shall have no force or effect’.25 After the resolution received a majority in the Republican-dominated Senate (52–46) and in the Republican-dominated House (242–180),26 it was only President Obama’s veto that saved the Clean Power Plan from being rejected.27 However, the adoption of the resolution by a majority of Congress members achieved another objective: to signal to the Paris negotiators that the Congress majority did not support Obama’s environmental policies. Republican Senator Inhofe declared that the ‘message could not be more clear that Republicans and Democrats in both the U.S. Senate and U.S. House do not support the President’s climate agenda, and the international community should take note’.28 Only a presidential veto kept the door open for the implementation of the US NDC at the domestic level.29 Furthermore, Republicans in the Senate highlighted the necessity to conclude the Paris outcome as an Article II treaty – at least in the case that the negotiated document contained stronger binding climate mitigation obliga-

S.J. Res. 23, 114th Cong. (2015); S.J. Res. 24, 114th Cong. (2015). Congressional Review Act, 5 U.S. Code §§801–808. 25 114th Congress, S.J. Res. 24, 17 November 2015. 26 3 Democrat Senators voted for the Resolution, while 3 Republican Senators voted against, Roll Call 360, Bill Number S.J. Res 24, 17 November 2015, www​.senate​ .gov/​legislative/​LIS/​roll​_call​_lists/​roll​_call​_vote​_cfm​.cfm​?congress​=​114​&​session​=​1​ &​vote​=​00306; 4 Democrat House members voted for the Resolution whereas two Republicans voted against, Roll Call 650, Bill Number S.J. Res 24, 1 December 2015, https://​clerk​.house​.gov/​Votes/​2015650. 27 Veto – S.J. Res. 24, 18 December 2015. 28 V. Richardson, ‘Republicans Move to Undermine Obama on Paris Climate Deal’, Washington Times, 7 December 2015), www​.washingtontimes​.com/​news/​2015/​ dec/​7/​republicans​-move​-to​-undermine​-obama​-on​-paris​-clima/​. 29 The White House, Office of the Press Secretary, Memorandum of Disapproval on S.J. Res. 23, 19 December 2015, https://​obamawhitehouse​.archives​.gov/​the​-press​ -office/​2015/​12/​19/​memorandum​-disapproval​-sj​-res​-23. 23 24

Treaties in parliaments and courts

90

tions for the US than for developing countries. In October 2015, Republican Senator Paul introduced a ‘sense-of-Senate’ resolution stressing that any outcome of the Paris Conference ‘will be considered a treaty requiring the advice and consent of the Senate’.30 Two months later, just before the negotiations at Paris started, the Republican Senator submitted a resolution stressing that any negotiated outcome will ‘have no force or effect in the United States […] until that protocol, amendment, extension, or other agreement has been submitted to Senate for advice and consent’.31 The resolution stated that Senate involvement would be called for if the negotiated outcome contained ‘mitigation commitments […] that would put our national industries at a disadvantage compared to the industries of developing countries’ or a financial commitment, or established an oversight mechanism with broad competences.32 The resolution put pressure on the administration not to allow a differentiated scheme of climate mitigation obligations distinguishing between developing and developed countries. Against this background, US negotiators were aware that adopting an accord with binding mitigation obligations at the international level would lead to problems at home. Already during the debate in Copenhagen, Todd Stern had emphasized that ‘[i]t has been my view from the beginning that unlike what happened in Kyoto we need to have our international and domestic postures in sync, so there is domestic and political support for whatever it is we do. We don’t want the cart before the horse this time.’33 At Paris, the US negotiators then successfully inserted the foreign relations law argument in the international debate and thereby limited the potential outcome of the negotiations. Some months before COP 21, French Minister of Foreign Affairs Laurent Fabius stated in a discussion with African delegates at UN climate talks that ‘we know the politics in the US. Whether we like it or not, if it comes to the Congress, they will refuse.’34 Fabius added that ‘[w]e must find a formula which is valuable for everybody and valuable for the U.S. without going to the Congress’.35 Accordingly, the South African Minister of Environmental Affairs underlined in a domestic debate that the matter of legal form was the

S. Res. 290, 114th Congress (2015–16), 20 October 2015. S. Res. 329, 114th Congress (2015–16), 7 December 2015. 32 Ibid. 33 J. Broder and J. Kanter, ‘Europeans Say U.S. Lacks Will on Climate’, New York Times, 20 September 2009, www​.nytimes​.com/​2009/​09/​21/​world/​europe/​21climate​ .html. 34 Associated Press, ‘Climate Deal Must Avoid US Congress Approval, French Minister Says’, The Guardian, 1 June 2015, www​.theguardian​.com/​world/​2015/​jun/​01/​ un​-climate​-talks​-deal​-us​-congress. 35 Ibid. 30 31

Shaping

91

‘determining factor of no backsliding’ to guarantee US participation.36 In the run-up to the final negotiations in Paris, EU Climate Commissioner Miguel Arias Canete stressed that ‘[w]e need the United States on board, and we have to find a solution. […] We understand the concerns they have because of the political situation they have in the Congress.’37 In the context of the debate about the language on Article 4(4) of the Paris Agreement, the foreign relations law argument was also crucial. According to the spokesperson for the like-minded developing countries, the EU lobbied for acceptance of the last-minute change citing US concerns about the involvement of the US Congress.38 The EU apparently internalized the US foreign relations law argument. According to one observer, the US negotiators made ‘the world accept the domestic constraints in the United States as a feature of international climate talks’.39 As has been the case during other treaty negotiations, states agreed to the US negotiating position because they feared the veto of a hesitant Senate.40 Even though the Obama administration successfully pushed for a treaty arguably in line with the Senate’s demands, in the aftermath, the decision not to involve the Senate in the approval of the Paris Agreement was heavily criticized. With a Republican majority, the Committee on the Judiciary in the House of Representatives created the Executive Overreach Task Force to address the Obama administration’s foreign policy measures on climate change.41 In a meeting in May 2016, Republican Representative King decried the decision to ratify the Paris Agreement without Senate consent as ‘a clear example of the executive overreach in the area of foreign affairs’.42 For some Republican lawmakers, even the Paris outcome did not allow to conclude the treaty as a sole executive agreement.

PMG, National Assembly, 2 September 2015, https://​pmg​.org​.za/​hansard/​28396/​ Richardson, ‘Republicans’. 38 Raman and Chiew, ‘Paris Agreement’. 39 R. Clémencon, ‘The Two Sides of the Paris Climate Agreement: Dismal Failure or Historic Breakthrough’, The Journal of Environment & Development 25 (2016), 3 (6). 40 For instance, the US successfully advocated to introduce Article 21 on the Monroe Doctrine into the Covenant on the League of Nations because other states felt it was a conditio sine qua non for US participation. However, in the end the US did not become party to the Covenant anyhow: J. Gardner, ‘The Recrudescence of the Monroe Doctrine’, Political Science Quarterly 45 (1930), 231 (234–9). 41 Executive Overreach in Foreign Affairs, Hearing before the Executive Overreach Task Force of the House Committee on the Judiciary, 114th Cong, 2d Sess 2 (2016), www​.govinfo​.gov/​content/​pkg/​CHRG​-114hhrg20106/​html/​CHRG​-114hhrg20106​ .htm. 42 Ibid. 36 37

Treaties in parliaments and courts

92

All in all, US foreign relations law had an effect on the outcome of the Paris Agreement. Obama’s ‘turn to informality’ can also be interpreted as an attempt to overplay the dwindling foreign policy consensus in the US. The potential veto-power role of the Senate (at least partly)43 explains the non-binding nature of climate mitigation obligations in the Paris Agreement.44

For other reasons see Lange, ‘Bargaining Tool?’ 23. On this see also D. Wirth, ‘Cracking the American Climate Negotiators’ Hidden Code: United States Law and the Paris Agreement, Climate Law 6 (2016), 152; J.E. Vinuales, ‘The Paris Agreement on Climate Change: Less Is More’, German Yearbook of International Law 59 (2017), 11 (18–20). 43 44

5. Translating According to the classical theory of the separation of powers, the main task of parliament is to legislate.1 This power also pertains to legislation implementing or incorporating treaties into the domestic order. In the dualist British constitutional tradition, this competence is considered to guarantee the role of parliament as the ultimate law-making authority and safeguard its participation in the treaty-making process.2 While the executive dominates the treaty-making process, parliament decides how to transform the international legal provision into the domestic order. In constitutional systems that demand parliamentary participation prior to ratification, legislative implementation remains important to specify the scope of the treaties’ obligations on the domestic level. Domestic courts readily apply the implementing laws, while they may be more hesitant to directly apply international provisions.3 From the perspective of international law, states are in principle free to choose how they comply with their international obligations.4 No general duty to pass implementing legislation exists unless the international legal provisions expressly demand such a law.5 Moreover, legislative implementation is by no means the only way to transform international obligations into the domestic system. Governments may implement agreements by setting up administrative programmes aimed at enhancing the goals of a treaty. In reaction to ratifications of human rights treaties, governments have often established administrative mechanisms to oversee effective implementation.6 However, legislative

Montesquieu, Spirit, 151. J. Harrington, ‘Scrutiny and Approval: The Role for Westminster-Style Parliaments in Treaty-Making’, ICLQ 55 (2006), 121 (122). 3 On direct application of treaties see Chapter 7. 4 For the ICCPR see already Human Rights Committee, General Comment No. 3, HRI/GEN/1/Rev.9 (Vol.I), 29 July 1981, para. 1 that was later replaced by General Comment No. 31, C/21/Rev.1/Add.13, 26 May 2004; in general terms P.-M. Dupuy, ‘International Law and Domestic Legal Systems’, in Max Planck Encyclopedia of Public International Law (April 2011), para. 43; G. Staberock, ‘Human Rights, Domestic Implementation’, in Max Planck Encyclopedia of Public International Law (February 2011), para. 14. 5 Dupuy, ‘International Law’, para. 45; Staberock, ‘Human Rights’, para. 14. 6 See for instance the South African National Action Plan for the Protection and Promotion of Human Rights, 1998. 1 2

93

94

Treaties in parliaments and courts

action often promises to be particularly effective and consequential. Even though implementing legislation does not guarantee effective compliance with treaties,7 legislative reform increases the chances of a strong impact of treaties in the domestic order.8 Detailed implementing legislation lends itself to application by executive agencies and courts alike. This legislative implementation may be understood as an act of translation. At times, the legislature may copy the language of a treaty provision and write it into a domestic law. More often, however, the international norms are blended into the domestic legal context and understood to provide inspiration for how to orient a domestic legislation.9 This study uses the term translation in the latter sense, to analyse the different legislative implementation practices.

5.1

THE CCAIL AND CLIMATE PROTECTION LAWS IN GERMANY

In Germany, UN human rights treaties, the Rome Statute and the climate change treaties triggered domestic legislative action and influenced the content of a number of laws. However, differences exist in the respective issue areas. While the ratification of the Rome Statute, Kyoto Protocol and Paris Agreement led to considerable legislative action, the ratification of human rights treaties often did not trigger implementing legislation, at least not immediately. After the ratifications of UN human rights treaties, parliament took the view that no amendments of national laws were necessary to comply with the treaty provisions.10 Parliamentarians did not challenge the assessment of the executive’s memorandum on CEDAW that German laws would provide sufficient protections for women and did not need to be adapted.11 The Bundestag’s Foreign Relations Committee stressed that German legislation is

7 For other factors influencing compliance see E. Neumayer, ‘Do International Human Rights Treaties Improve Respect for Human Rights?’ Journal of Conflict Resolution 49 (2005), 925. 8 C. Heyns and F. Viljoen, The Impact of the United Nations Human Rights Treaties on the Domestic Level (Kluwer 2002), 5. 9 An even broader understanding of translation is used by Sally Engle Merry in considering how international legal provisions are understood in local contexts: S.E. Merry, Human Rights and Gender Violence: Translating International Law into Local Justice (University of Chicago Press 2006); on the difficulty of translation in comparative law, S. Glanert, ‘Translation Matters’, in S. Glanert (ed.), Comparative Law: Engaging Translation (Routledge 2014), 1. 10 For a critique see N. Wenzel, ‘Germany’, in R. Wolfrum, E. de Wet and H. Hestermayer (eds), The Implementation of International Law in Germany and South Africa (Pretoria University Law Press 2015), 308 (323). 11 Bundestag, Drucksache 10/955, 2 February 1984, 21; 10/2836, 5 February 1985.

Translating

95

in compliance with the obligations under CERD.12 The parliamentary majority went along with Germany’s declaration on CAT according to which German domestic law ‘is in accordance with the Convention’.13 Also, the CRC, the CPPED and the CRPD were not considered to call for legislative implementing action.14 The evolution of the debate on the CRPD, however, demonstrates how the perspective on the necessity of implementing legislation may change. During the debate on the law granting approval to the CRPD, different views on the scope of the CRPD obligations had come to the fore. The parliamentary groups of the Green and Left Parties tabled a motion criticizing certain translations of the official document in German (in particular translating ‘inclusive education’ with ‘integrative Bildung’) as weakening the substance of the rights granted in the treaty.15 The motion suggested that domestic legislation would not provide for full equal opportunities of people with disabilities in the German society as envisioned in the CRPD.16 Politicians from the Left Party, the Green Party and the FDP explicitly dismissed the government’s proposition that no implementing legislation was necessary.17 After German ratification of the CRPD, opposition parties linked legislative proposals to the lack of implementation of CRPD obligations. The Green Party proposed a reform of the Equal Opportunities Act for Persons with Disabilities (Behindertengleichstellungsgesetz) and the General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz) in light of the CRPD.18 The Left Party pressed for fast implementation action in relation to the CRPD’s provisions on inclusive education in schools and

Bundestag, Drucksache V/4127, 24 April 1969. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, Declarations and Reservations, Germany, 1 October 1990, https://​ treaties​.un​.org/​pages/​ViewDetails​.aspx​?src​=​TREATY​&​mtdsg​_no​=​IV​-9​&​chapter​=​4​&​ clang​=​_en​#3. 14 Convention on the Rights of the Child, Declarations and Reservations, Germany, 20 November 1989, https://​treaties​.un​.org/​pages/​ViewDetails​.aspx​?src​=​TREATY​&​ mtdsg​_no​=​IV​-11​&​chapter​=​4​&​clang​=​_en​#34; Bundestag, Drucksache 16/12592, 8 April 2009, 33; for a critique see L. von Braun and D. Diehl, ‘Die Umsetzung der Konvention gegen das Verschwindenlassen in Deutschland’, Zeitschrift für internationale Strafrechtsdogmatik 4 (2011), 214; Bundestag, Schriftliche Fragen, BT-Drs. 16/10520, 10 October 2008, 30. 15 Bundestag, Drucksache 16/10841, 12 November 2008, 1–2; Drucksache 16/11244, 3 December 2008, 1–2. 16 Bundestag, Drucksache 16/10841, 12 November 2008, 1–2; Drucksache 16/11244, 3 December 2008, 1–2. 17 Even parliamentarians from the governing CDU/CSU and SPD expressed criticism of the government memorandum and the translation, Bundestag, Plenarprotokoll 16/186, 12 November 2008, 19906–10. 18 Bundestag, Drucksache 18/977, 2 April 2014. 12 13

96

Treaties in parliaments and courts

child care.19 The FDP suggested that more needed to be done to implement the CRPD in relation to the rights of persons with disabilities in sports.20 The three opposition parties also proposed to reform German election laws because denying the voting rights of persons placed under full guardianship would violate persons with disabilities’ participatory rights (Article 29 of the CRPD).21 After the Constitutional Court ruled that the existing law violated the constitution,22 the CRPD became a key argument in the debate about how to implement the ruling.23 The constant pressure from the opposition arguably had some effect on the majority position. In 2016, the parliamentary majority adopted a new Federal Participation Act (Bundesteilhabegesetz).24 According to the government, the new law intended to implement the 2015 recommendations of the CRPD Committee suggesting that the definition of disability had to be broadened, that autonomous decision-making had to be promoted financially and that an inclusive labour market had to be established.25 While the Left and Green Parties demanded further-reaching changes,26 it seems not unlikely that the opposition’s repeated calls for CRPD implementation coupled with the statement of the CRPD Committee had some influence on the position of the government and the majority parties.27 Besides the human rights discussion, the Bundestag (and Bundesrat) passed various pieces of legislation in order to be able to abide by Germany’s

19 Bundestag, Drucksache 16/12043, 13 February 2009; Drucksache 18/12409, 18 May 2017; see also on access to transportation Drucksache 18/11316, 15 February 2017. 20 Bundestag, Drucksache 19/8536, 19 March 2019. 21 Bundestag, Drucksache 19/3171, 3 July 2018; Drucksache 19/4568, 26 September 2018; Drucksache 18/12547, 30 May 2017. 22 Federal Constitutional Court, 2 BvC 62/14, 29 January 2019, on this see Chapter 9.3. 23 Bundestag, Plenarprotokoll 19/101, 16 May 2019, 12319-12325; Drucksache 19/10114, 14 May 2019; Drucksache 19/10245, 14 May 2019. 24 Gesetz zur Stärkung der Teilhabe und Selbstbestimmung von Menschen mit Behinderungen, 23 December 2016, Bgbl, Teil I Nr. 66, 2016, 3234; on the context see L. Schmitt, ‘Das Bundesteilhabegesetz auf dem Prüfstand der UN-Behindertenrechtskonvention’, Neue Zeitschrift für Sozialrecht 2018, 247. 25 Bundestag, Drucksache 18/10523, 30 November 2016. 26 Bundestag, Drucksache 18/9672, 21 September 2016; Drucksache 18/10014, 18 October 2016. 27 Also, in the meantime the legislatures of various Länder passed laws introducing inclusive education in schools pointing to the need to implement Article 24 of the CRPD, for instance in North Rhine Westphalia, Lower Saxony and Rhineland-Palatinate: A. Engels, ‘Herausforderungen der schulischen Inklusion’, Zeitschrift für Gesetzgebung 2015, 128.

Translating

97

obligations under the Rome Statute.28 The parliament even needed to adopt a constitutional amendment. Article 16(2) of the Basic Law prohibited the extradition of German nationals to other countries and thus potentially conflicted with obligations to surrender suspects (of all nationalities) to the ICC.29 After some discussions about the phrasing, all parliamentary groups agreed on an additional sentence to Article 16 of the Basic Law stating that a ‘law may provide otherwise for extraditions to a member state of the EU or to an international court, provided that the rule of law is observed’.30 In the roll-call vote in the plenary, 528 of 531 parliamentarians supported the constitutional change, with only one ‘no’ vote and two abstentions.31 The constitutional amendment also received unanimous support in the Bundesrat.32 The two-thirds majority necessary for a constitutional amendment (Article 79 (2) of the Basic Law) was easily passed. In April 2002, the Bundestag then unanimously adopted the Code of Crimes Against International Law (CCAIL), which was supposed to strengthen the system of international criminal law by transferring the crimes contained in the Rome Statute into German domestic legislation.33 The CCAIL even went considerably further than the Rome Statute by declaring the use of chemical weapons, the use of persons as shields and the use of starvation of civilians in internal conflicts to reflect methods of warfare punishable under German law.34 The ensuing debates in the Bundestag and Bundesrat mostly pertained to side

28 For the act on cooperation with the ICC which granted the German authorities much less discretion in its extradition decision than in cases of cooperation with other states see Bundestag, Plenarprotokol 14/233, 25 April 2002, 23243C; P. Wilkitzki, ‘The German Law on Co-operation with the ICC’, Revue internationale de droit pénal 76 (2005), 97. 29 For the debate see A. Zimmermann, ‘Die Auslieferung Deutscher an Staaten der Europäischen Union und internationale Strafgerichtshöfe,’ JZ 2001, 233. 30 Bundestag, Drucksache 14/4419, 27 October 2000, 3. 31 Bundestag, Plenarprotokoll 14/128, 27 October 2000, 12359C. 32 Bundesrat, Plenarprotokoll 756, 10 November 2000, 448. 33 Bundestag, Plenarprotokol 14/233, 25 April 2002, 23243A; the CCAIL had been prepared by an expert working group under the auspices of the Federal Ministry of Justice: G. Werle and F. Jeßberger, ‘International Criminal Law Is Coming Home: The New German Code of Crimes against International Law’, Criminal Law Forum 13 (2002), 191 (199). 34 A. Zimmermann, ‘Auf dem Weg zu einem deutschen Völkerstrafgesetzbuch - Entstehung, völkerrechtlicher Rahmen und wesentliche Inhalte’, Zeitschrift für Rechtspolitik 2002, 97; T. Dittmann and J. Heinitz, ‘Das Bundesministerium der Justiz und das Völkerstrafrecht’, in C. Safferling and S. Kirsch (eds), Völkerstrafrechtspolitik. Praxis des Völkerstrafrechts (Springer 2014), 191; F. Jarasch and C. Kreß, ‘The Rome Statute and the German Legal Order’, in C. Kreß and F. Lattanzi (eds), The Rome Statute and Domestic Legal Orders, Vol I (Nomos 2000), 91.

98

Treaties in parliaments and courts

issues such as potential phone surveillance of alleged perpetrators or the inclusion of a crime on the use of atomic weapons.35 In the end, all parliamentary groups voted in favour of the legislation. The CCAIL also reshaped the jurisdictional scheme for international crimes in the German order by establishing universal jurisdiction for genocide, crimes against humanity and war crimes ‘even when the offence was committed abroad and bears no relation to Germany’ (§ 1 of the CCAIL).36 While the principle of legality usually obliges the public prosecutor to prosecute (almost) all crimes,37 the newly adopted § 153 f of the German Code of Criminal Procedure (CCP) provided the Federal Prosecutor General with discretion as to whether to open a case if there exists no jurisdictional link other than pure universal jurisdiction for atrocious crimes.38 The exact phrasing of the provision was a matter of controversy between the government and parliament. The government draft favoured the phrasing that the prosecution ‘should’ be stayed in cases of pure universal jurisdiction, meaning that generally the prosecutor would take no action.39 However, the Bundestag’s legal committee succeeded with its proposition that the prosecutor only ‘may’ stay its prosecution in such cases.40 According to the legal committee, § 153 f of the CCP might otherwise be understood as a ‘partial withdrawal’ of the principle of universal jurisdiction.41 The prosecutor should not have to justify starting investigations on the basis of universal jurisdiction.42 The Bundestag thus went even further than the government in its embrace of a universal jurisdiction scheme.43

35 Bundesrat, Plenarprotokol 776, 31 May 2002, 297-298; Bundesrat, Drucksache 537/02, 12 June 2002; Bundestag, Drucksache 14/8919, 25 April 2002; Drucksache 14/8892, 24 April 2002, 3-5; Drucksache 14/8924, 24 April 2002, 1. 36 Werle/Jeßberger, ‘Code’, 213. 37 § 152 (2) Code of Criminal Procedure. 38 B. Burghardt, ‘Zwischen internationaler Solidarität und „not in my backyard“. Eine Bilanz der bisherigen Strafverfolgung von Völkerrechtsverbrechen auf der Grundlage des VStGB’, Kritische Justiz 51 (2018), 21 (22–3). 39 Bundestag, Drucksache 14/1852, 13 March 2002, 10. 40 Bundestag, Drucksache 14/8892, 24 April 2002, 5–6. 41 Ibid., 6. 42 Ibid., 6. 43 For a critique of the lack of investigations in relation to massacres allegedly committed by Uzbek government officials, and in relation to US minister of defence Donald Rumsfeld for torture committed in Abu Ghraib, see Bundestag, Drucksache 16/7137, 21 November 2007; Drucksache 16/11271, 3 December 2008; Drucksache 16/4099, 17 January 2017; Bundestag, Plenarprotokoll 16/136, 17 January 2008, 14416 (zur Protokoll gegebene Reden).

Translating

99

Parliament also voted in favour of the incorporation of the crime of aggression into the CCAIL as a response to the Kampala Review conference.44 While § 13 of the CCAIL adopts the Kampala definition of the crime of aggression with its threshold clause, § 1(2) of the CCAIL requires a link to Germany as a precondition for jurisdiction over the crime of aggression. The parties in opposition criticized the lack of ambition rather than the general direction of the reform. The Green Party suggested that the exemption of the crime of aggression from the universal jurisdiction scheme was sending the wrong signal to the world community,45 whereas the Left Party dismissed the crime’s threshold clause as an impediment for effective prosecution.46 In the end, the parliamentary groups of the majority parties CDU/CSU and SPD supported the legal committee’s proposal, while the Left Party voted against and the Green Party abstained.47 Nonetheless, in general terms, all German parliamentarians endorsed legislative action enabling German cooperation with the ICC and developing a prosecution scheme for atrocity crimes at the domestic level.48 In the context of international efforts to fight climate change, the German parliament adopted various laws to contribute to climate change mitigation. Because the UNFCCC was not regarded as triggering binding mitigation obligations, the domestic debate of the 1990s largely revolved around the question of which voluntary climate protection measures one should take.49 After the adoption of the Kyoto Protocol in 1997, some laws referenced the international commitments. In 2000, the coalition government consisting of the Green Party and the SPD tabled the Renewable Energy Sources Act (Erneuerbare-Energien-Gesetz) in the Bundestag and Bundesrat to encour-

44 The existing §§ 80 and 80a Criminal Code only declare the preparation and instigation of the crime of aggression, but not its committal, punishable: generally see M. Greßmann and U. Staudigl, ‘Die Umsetzung der Beschlüsse von Kampala in Deutschland’, Zeitschrift für internationale Strafrechtsdogmatik 15 (2016), 798; E. Hoven, ‘Der Tatbestand der Aggression – Wege zur Implementierung der Ergebnisse von Kampala in das Völkerstrafgesetzbuch’, in C. Safferling and S. Kirsch (eds), Völkerstrafrechtspolitik: Praxis des Völkerstrafrechts (Springer 2014), 339; S. Oeter, ‘Das Verbrechen der Aggression, die Konferenz von Kampala und das deutsche Strafrecht’, in F. Jeßberger and J. Geneuss (eds), Zehn Jahre Völkerstrafgesetzbuch (Nomos 2012), 101. 45 Bundestag, Drucksache 18/10509, 30 November 2016, 11. 46 Ibid, 11; see already Drucksache 17/1169, 28 November 2012, 2–3. 47 Bundestag, Plenarprotokoll 18/206, 1 December 2016, 20621. 48 For scepticism of the AfD see Chapter 3.1.2. 49 For instance, under the Kohl government, the opposition (the Green Party, the SPD and the PDS) criticized the lack of specific measures to address climate change in Germany: Bundestag, Drucksache 13/10753, 20 May 1998, 2, 5–6.

100

Treaties in parliaments and courts

age the generation of renewable electricity.50 The official memorandum on the law emphasized the link of the law to Germany’s obligations under the burden-sharing agreement of the EU on the Kyoto Protocol.51 While a CSU politician in the Bundesrat criticized the ‘exorbitant’ increase in remuneration for solar power,52 the opposition did not convene the mediation committee, even though the government had lacked a majority in the Bundesrat since April 1999. Other legislation had been initiated at the level of the European Community (EC). Because the Kyoto Protocol contained common binding climate mitigation obligations for the EC,53 the Protocol had considerable influence on EC law.54 Most importantly, Directive 2003/87/EC, which entered into force in 2005, established a scheme for the trade of greenhouse gas emissions at the European level.55 Even though the Directive was adopted shortly before the entry into force of the Kyoto Protocol, it was closely linked to the international efforts. According to its preamble, the Directive aims at ‘fulfilling the [Kyoto] commitments of the European Community and its Member States more effectively, through an efficient European market in greenhouse gas emission allowances, with the least possible diminution of economic development and employment’.56 In 2004, this Directive was incorporated into German law through the Federal Greenhouse Gas Emissions Trading Act.57 After CDU/ CSU politicians in opposition in the Bundesrat voiced scepticism about the bureaucratic burden and costs for companies resulting from the specific design

50 Gesetz für den Vorrang Erneuerbarer Energien, 29 March 2000, BGbl 2000, Teil I Nr. 13, 305. 51 Bundestag, Drucksache 14/2776, 18, 23 February 2000. 52 Bundesrat, Drucksache 749, 17 March 2000, 106–7. 53 On the EU ‘bubble’, C. Damro and P. Méndez, ‘Emissions Trading at Kyoto: From EU Resistance to Union Innovation’, Environmental Politics 12 (2003), 71. 54 Accordingly, some of the German parliamentary climate change legislation was pre-shaped by EC law: W. Durner, ‘International Environmental Law in Germany’, in R. Wolfrum, E. De Wet and H. Hestermayer (eds), The Implementation of International Law in Germany and South Africa (Pretoria University Law Press 2015), 240 (251–3). 55 Directive 2003/87/EC; J. Brunneé, ‘Europe, the United States, and the Global Climate Regime: All Together Now?’ Journal of Land Use & Environmental Law 24 (2008), 1 (16–17). 56 Directive 2003/87/EC. 57 Gesetz zur Umsetzung der Richtlinie 2003/87/EG über ein System für den Handel mit Treibhausgasemissionszertifikation in der Gemeinschaft, 8. July 2004, BGBl 2004, I, Nr. 35, 1578; H.-J. Koch, M. Lührs and R. Verheyen, ‘Germany’, in R. Lord, S. Goldberg, R. Rajamani and J. Brunnée (eds), Climate Change Liability: Transnational Law and Practice (CUP 2011), 376 (381–2); L. Michaelis and C. Holtwisch, ‘Die deutsche Umsetzung der europäischen Emissionshandelsrichtlinie’, NVwZ 2004, 2127.

Translating

101

of the law,58 the mediation committee found a compromise that was adopted in both parliamentary chambers.59 Since then, the Renewable Energy Sources Act and the Greenhouse Gas Emissions Trading Act have been frequently updated.60 In the context of COP 15 at Copenhagen, parliamentarians in opposition pressed the CDU/CSU and FDP coalition government to embrace a comprehensive climate protection law.61 A few days before the start of the Copenhagen Conference in 2009, the Green Party suggested to urge the government to adopt a national climate protection law with clear targets and timetables.62 As an explicit response to the ‘failure’ of Copenhagen, the parliamentary group of the SPD requested that the government push for an ambitious position at the EU level while drafting a climate change law at home.63 The Left Party pointed to the necessity of domestic climate change legislation with binding goals for emissions and rules on financial assistance for developing countries.64 While the government majority rejected these suggestions,65 the idea of a domestic climate change law remained alive. In the context of the Paris negotiations, the Green Party proposed a climate protection law with binding goals at the domestic level to signal German ambition.66 Similarly, the Left Party suggested strengthening national climate protection measures and drafting a climate change law in the light of the Paris Agreement.67 Besides these measures, the Green Party advocated the incorporation of a provision on climate protection into the Basic Law. As the role model for codification, the draft refers to the commitments under the Paris Agreement,

58 Bundesrat, Plenarprotokoll 796, 40–3, 13 February 2004; Plenarprotokoll 15/98, 12 March 2004, 8794–803. 59 Bundestag, Plenarprotokoll 15/112, 28 May 2004, 10254; Bundesrat, Plenarprotokoll 800, 11 June 2004, 260–1. 60 See for instance Gesetz zur Einführung von Ausschreibungen für Strom aus erneuerbaren Energien und zu weiteren Änderungen des Rechts der erneuerbaren Energien, 13 October 2016; Gesetz über den Handel mit Berechtigungen zur Emission von Treibhausgasen, 28 July 2011. 61 As early as the 1990s, Social Democrats and members of the Green Party in the Bundestag had called for the adoption of a ‘climate protection law’: Bundestag, Plenarprotokoll 12/235, 23 June 1994, 20616; Drucksache 13/9602, 14 January 1998; Plenarprotokoll 13/213, 15 January 1998. 62 Bundestag, Drucksache 17/132, 2 December 2012. 63 Bundestag, Drucksache 17/522, 26 January 2010. 64 Bundestag, Drucksache 17/1475, 22 April 2010. 65 Bundestag, Drucksache 17/2318, 18 June 2010. 66 Bundestag, Drucksache 18/6646, 11 November 2015; see also the action after the adoption of the Paris Agreement, Drucksache 18/8080, 13 April 2016, 2; see also Drucksache 19/6103, 28 November 2018, 3. 67 Bundestag, Drucksache 18/10242, 8 November 2016.

102

Treaties in parliaments and courts

stressing that the international legal obligations ‘are of such importance for the German polity, that they must also be anchored in concrete terms on the level of the constitution’.68 According to the draft, all branches, including the legislature, must abide by the international minimal standard.69 More concretely, the reformed Article 20a of the Basic Law should state that ‘the climate protection goals and obligations binding on the Federal Republic of Germany under international law bind all state authority directly’.70 While the governing parties rejected such proposals,71 the SPD and CDU/ CSU coalition proposed its own climate protection law as part on a ‘package’ on climate protection. In the coalition treaty of 2018, the CDU/CSU and SPD coalition had confirmed the climate goals of the Paris Agreement and promised to adopt a law making the climate change goals for 2030 binding.72 The proposal triggered a controversial debate. While parliamentarians of the Green and Left Parties did not regard the measures as going far enough,73 the FDP parliamentary group suggested to focus on market incentives and technology development instead.74 The AfD parliamentary group urged the government to ‘completely revise’ the climate protection policy and stop the climate protection law.75 However, in the end, the majority parties in the Bundestag adopted the climate change law in December 2019 against the voices of the opposition.76 The Bundesrat also supported the federal climate change law while it called in the mediation committee in relation to other parts of the package.77 The adopted law depicts the Paris Agreement’s commitment to limit global temperature rise to 2°C, and if possible 1.5°C, as the ‘basis’ of the domestic legislation (§ 1 of the Federal Climate Protection Law). The law sets a binding target of 55 per cent greenhouse gas emission reductions by 2030 in comparison with the levels in 1990 (§ 3 of the Federal Climate Protection Law). After the March 2021 Klimabeschluss of the Constitutional Court declared parts of the Law to be unconstitutional,78 the Bundestag adopted an even more ambitious trajectory for climate change mitigation.79 This does not mean that there is consensus Bundestag, Drucksache 19/4522, 25 September 2018, 1. Ibid. 70 Ibid. 71 See for intstance Bundestag, Drucksache 19/7273, 23 January 2019; 19/11158, 26 June 2019. 72 Koalitionsvertrag, 19. Legislaturperiode, 17, 142–3. 73 Bundestag, Drucksache 19/135382, 25 September 2019. 74 Bundestag, Drucksache 19/14344, 22 October 2019. 75 Bundestag, Drucksache 19/15255, 15 November 2019, 3. 76 Bundestag, Plenarprotokoll 19/128, 15 November 2019, 16060. 77 Bundesrat, Plenarprotokoll 983, 29 November 2019, 579–80. 78 Federal Constitutional Court, 1 BvR 2656/18, 24 March 2021. 79 For the proposal see Bundestag, Drucksache 19/30230, 2 June 2021. 68 69

Translating

103

on how to implement the Paris Agreement. In 2023, the AfD even proposed a ‘moratorium for climate change policy and the Paris Agreement’.80 However, all other parties took a different view. The parliamentarians highlighted the relevance of Germany’s contribution to the Paris Agreement as a key argument for rejecting the proposal.81

5.2

BROAD INCORPORATION IN SOUTH AFRICA

The South African constitution stresses that an international agreement usually becomes domestic law after the legislature has passed an implementation law (Section 231(4) of the constitution). On this basis, the South African parliament adopted various laws relating to the treaties discussed here. After the ratification of CEDAW, in 1996 the National Assembly and National Council of Provinces set up a Joint Committee on the Improvement of Quality of Life and Status of Women tasked with monitoring and evaluating progress on the implementation of CEDAW.82 The Committee contributed to the drafting of domestic statutes on domestic violence and sexual offences against women.83 The preamble of the 1998 Domestic Violence Act refers to ‘international commitments and obligations of the State towards ending violence against women and children, including obligations under the United Nations Conventions on the Elimination of all Forms of Discrimination Against Women and the Rights of the Child’.84 Moreover, both chambers of parliament passed comprehensive anti-discrimination legislation in 2000 prohibiting hate speech and sexual harassment by private parties and government agencies with references to human rights treaties. With the adoption of the Promotion of Equality and Prevention of Unfair Discrimination Act, the parliamentary chambers partly intended to effectuate Section 9(4) of the constitution according to which ‘national legislation must be enacted to prevent or prohibit unfair discrimination’, but also aimed at implementing obligations under CERD and CEDAW.85 The preamble Bundestag, Drucksache 20/6915, 25 May 2023. Bundestag, Drucksache 20/106, 25 May 2023, 12939–40. 82 PMG, ‘Committee Report on Violence Against Women’, 28 May 2002, https://​ pmg​.org​.za/​committee​-meeting/​1497/​. 83 L. Chenwi, ‘Using International Human Rights Law to Promote Constitutional Rights. The (Potential) Role of the South African Parliament’, Law, Democracy and Development 15 (2011), 1 (14). 84 Government Gazette, Vol. 402, No. 19537, 2 December 1998, Domestic Violence Act, 1998, 20 November 1998; see also Government Gazette, Vol. 510, No. 30599, 14 December 2007, Sexual Offences and Related Matters) Amendment Act, Act 32 of 2007, Preamble. 85 For instance, according to Article 4 of CERD, states need to take steps ‘to eradicate all incitement’ on racial superiority and criminalize the dissemination of racist 80 81

104

Treaties in parliaments and courts

of the Act broadly referenced to international obligations under CEDAW and CERD as inspiration for the legislative measure.86 In the Joint Ad Hoc Committee on Promotion of Equality and Prevention of Unfair Discrimination Bill, the ANC parliamentarians voted for the proposal, while the largest opposition parties at that time – the Democratic Party and the New National Party – abstained.87 Furthermore, the 2013 Prevention and Combating of Torture of Persons Act was supposed to implement CAT by criminalizing torture in the South African legal order.88 The CAT Committee had criticized the absence of a specific offence of torture in South African criminal law.89 In the Act’s preamble, the legislature referred to South Africa’s obligations under CAT, particularly the obligation to ‘take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction’.90 In the Portfolio Committee of Justice and Constitutional Development, the Bill was adopted unanimously and recommended to the National Assembly for adoption.91 Reference to the necessity of implementing UN human rights treaties did not always lead to the adoption of laws. The draft of the 2014 Women Empowerment and Gender Equality Bill, which was supposed to introduce a gender quota of 50 per cent in the public and private sectors in light of CEDAW, did not survive.92 Partly in response to criticism by the CEDAW Committee,93 the National Council of Provinces had adopted the Bill in 2014 with reference to ‘international commitments in the field of human rights’ on

ideas: B. Pityana, ‘Promotion of Equity and Prevention of Unfair Discrimination Act 4 of 2000’, Codicillus XLIV No. 1 (2003), 2 (3). 86 Preamble, Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, www​.gov​.za/​sites/​default/​files/​gcis​_document/​201409/​a4​-001​.pdf. 87 Joint Ad Hoc Committee on Promotion of Equality and Prevention of Unfair Discrimination Bill, Final Discussion & Voting on Bill, 21 January 2000, https://​pmg​ .org​.za/​committee​-meeting/​4458/​. 88 Prevention and Combating of Torture of Persons Act, 2013, Act. No. 13 of 2013, 29 July 2013. 89 Committee Against Torture, CAT/C/ZAF/CO/1, 7 December 2006, paras 13–14. 90 Preamble, Prevention of Combating and Torture of Persons Act, 2013, Act. No. 13 of 2013, 29 July 2013. 91 National Assembly, Justice and Correctional Services, Prevention and Combating of Torture of Persons Bill: Finalisation and Adoption, 6 November 2012, https://​pmg​ .org​.za/​committee​-meeting/​15170/​. 92 Ministry of Women, Children and People with Disabilities, Women Empowerment and Gender Equality Bill, B 50-2013, www​.gov​.za/​sites/​default/​files/​ gcis​_document/​201409/​b50​-201​3womenempo​wermentgen​derequalit​y06nov2013​.pdf. 93 CEDAW/C/ZAF/CO/4 (2011), para. 15.

Translating

105

gender equality.94 More concretely, the Bill was supposed to ‘facilitate compliance with the country’s commitments to international agreements, including [CEDAW]’.95 In the debate in the National Council of Provinces, the ANC parliamentarians in the majority supported the Bill, whereas the representatives of the DA-dominated Western Cape provincial legislature dismissed the proposal as an impediment to job opportunities and business.96 Be that as it may, ANC politicians decided to withdraw the Bill from the parliamentary process and no action has been taken since.97 Nonetheless, all in all, various legislative projects in South Africa highlighted the relevance of bringing domestic law into compliance with UN human rights treaties.98 The South African parliament was also rather active in relation to international criminal law. The so-called ICC Bill of 2002 was supposed to lay the ground for domestic prosecution of atrocity crimes on the basis of universal jurisdiction.99 At the same time, the Bill aims at providing for smooth cooperation with the ICC.100 Thereby, South Africa came to be the first African state party to the Rome Statute to introduce domestic implementing legislation regulating the relationship between South Africa and the ICC.101 More concretely, the Act criminalizes the core crimes of genocide, crimes against humanity and war crimes that were previously classified only as ordinary crimes in the South African domestic legal order.102 In order to determine the scope of the crimes, the ICC Bill adopted the so-called reference model – popular among common 94 Children and People with Disabilities, Women Empowerment and Gender Equality Bill, Preamble. 95 Ibid., Section 3(b). 96 National Council of Provinces, 26 March 2016, 24–37. 97 Information provided by South Africa on the follow-up to the concluding observations of the Committee, CEDAW/C/ZAF/CO/4/Add.1, 25 September 2015. 98 For a critique that this does not go far enough, L. Chenwi, ‘International Human Rights Law in South Africa’, in R. Wolfrum, E. De Wet and H. Hestermayer (eds), The Implementation of International Law in Germany and South Africa (Pretoria University Law Press 2015), 339; and specifically S. Kamga, ‘Disability Rights in South Africa: Prospects for their Realisation under the White Paper on the Rights of Persons with Disabilities’, South African Journal on Human Rights 32 (2016), 569. 99 The Implementation of the Rome Statute of the International Criminal Court Act 27 of 2002 (ICC Bill), 12 July 2002; on this see F. Jeßberger and C. Powell, ‘Prosecuting Pinochets in South Africa – Implementing the Rome Statute of the International Criminal Court’, South African Journal of Criminal Justice 14 (2001), 344; M. du Plessis, ‘South Africa's Implementation of the ICC Statute: An African Example’, Journal of International Criminal Justice 5 (2007), 460; S. Maqungo, ‘Implementing the ICC Statute in South Africa’, in C. Kreß and F. Lattanzi (eds.), The Rome Statute and Domestic Legal Orders, Vol. I (Nomos 2000), 183. 100 Objectives, ICC Bill. 101 Du Plessis, ‘Implementation’, 461. 102 Ibid, 461.

106

Treaties in parliaments and courts

law countries – by directly referencing the Rome Statute’s definitions of the core crimes.103 Thus, in contrast to the German CCAIL, the scope of the crimes is directly modelled after the Rome Statute. In relation to extraterritorial jurisdiction, the Bill went further than the Rome Statute with its nationality and territoriality principle. The ICC Act introduces some form of (limited) universal jurisdiction for prosecution of atrocity crimes.104 According to Section 3 of the ICC Act, it aims at enabling ‘the national prosecuting authority of the Republic to adjudicate in cases brought against any person accused of having committed a crime in the Republic and beyond the borders of the Republic in certain circumstances’. Furthermore, Section 4(3) of the ICC Act provides for extraterritorial jurisdiction not only over South African nationals and residents and if crimes have been committed against them, but also over perpetrators present in South Africa, irrespective of their nationality or residency.105 The adoption of the Bill in parliament did not trigger controversy. After the Mbeki administration introduced the ICC Bill in parliament in July 2001,106 the Portfolio Committee on Justice and Constitutional Development generally endorsed the government draft. The Committee only suggested considering whether South African courts should be provided with even broader universal jurisdiction for atrocity crimes.107 Similarly, the Security and Constitutional Affairs Select Committee of the National Council of Provinces suggested minor changes to the draft.108 In the debate in the National Council of Provinces, parliamentarians from the Democratic Party and New National Party – in opposition at that time – also supported the Bill.109 In the National Assembly, the Bill was agreed to without any debate.110 The Al-Bashir controversy then left some marks on the debate about implementation of the Rome Statute. The Zuma administration introduced the International Crimes Act of 2017 into parliament, which emphasized head-of-state immunity and aimed at repealing the Implementation of the Jeßberger and Powell, ‘South Africa’, 353. Ibid, 359. 105 This is regarded as a key achievement of the ICC Act: Du Plessis, ‘Implementation’, 463. 106 The draft had been developed by an interdepartmental committee under the direction of the justice department: Jeßberger/Powell, ‘South Africa’, 345. 107 Report of the Portfolio Committee on Justice and Constitutional Development on the International Criminal Court Bill [B42-2001] (National Assembly – sec 75), 23 May 2002, https://​pmg​.org​.za/​committee​-meeting/​1471/​. 108 Security and Constitutional Affairs Select Committee, 25 June 2002, https://​pmg​ .org​.za/​committee​-meeting/​1608/​. 109 National Council of Provinces, 25 June 2002, 16–31. 110 National Assembly, 26 June 2002, 30. 103 104

Translating

107

Rome Statute Act.111 In May 2018, the administration briefed the National Assembly Committee on Justice and Correctional Service about the Bill.112 However, the legislative process was not continued, likely also because the new President, Cyril Ramaphosa, took a more supportive view of the ICC than the Zuma administration had.113 More recently, the idea of potential adjustments of the implementing legislation to the Rome Statute was taken up again. In response to critical press reports on Vladimir Putin’s invitation to the 2023 G-20 summit in South Africa despite the Russian aggression in Ukraine, the Ramaphosa administration emphasized that South Africa would remain party to the ICC. The administration declared, however, that ‘South Africa is considering a legislative amendment that would domesticate the Rome statute so that it reflects all the articles of the Rome Statute. This includes provision of article 98 of the statute that requires a waiver of immunities for persons charged by the ICC from third party countries where there is no referral by the United Nations Security Council.’114 As of mid-2023, the original ICC Act is still in force. In relation to climate change law, South African parliamentarians had long supported the executive’s approach, such as the policies included in the Mbeki administration’s 2011 White Paper on Climate Change.115 However, no legislation directly related to the international instruments.116 This changed with the adoption of the Paris Agreement. In 2017, the National Treasury introduced a Carbon Tax Bill to the parliament, pointing to South Africa’s commitments under the Paris Agreement.117 In the briefing before the competent parliamentary committee, the administration highlighted that a carbon tax was an essen International Crimes Bill, B 37-2017, 12 December 2017. PMG, Justice and Correctional Services, 30 May 2018, https://​pmg​.org​.za/​ committee​-meeting/​26535/​. 113 C. du Plessis, ‘Withdrawal from the ICC among Resolutions ANC May Rethink’, 21 November 2020, www​.dailymaverick​.co​.za/​article/​2020​-11​-21​-withdrawal​-from​ -icc​-among​-resolutions​-anc​-may​-rethink/​. 114 The Presidency, Republic of South Africa, South Africa remains a participant in the International Criminal Court, 25 March 2023, www​.thepresidency​.gov​.za/​press​ -statements/​south​-africa​-remains​-participant​-international​-criminal​-court. 115 Report of the Portfolio Committee on Water and Environmental Affairs, ATC130510, 7 November 2012, https://​pmg​.org​.za/​tabled​-committee​-report/​684/​; Report of the Portfolio Committee on Environmental Affairs, ATC141110, 21 October 2014, https://​pmg​.org​.za/​tabled​-committee​-report/​2044/​. 116 See for instance the National Energy Act of 2008 which was supposed to ensure the availability of diverse energy resources in South Africa, Government Gazette, Vol. 521, No. 31638, 24 November 2008, No. 34 of 2008: National Energy Act, 2008. 117 Government Gazette, No. 42483, 23 May 2019, Carbon Tax Act, 2019; on this see also South Africa’s 3rd Biennial Update Report to the United Nations Framework Convention on Climate Change, Department of Environmental Affairs. Republic of 111 112

108

Treaties in parliaments and courts

tial feature for ensuring compliance with South Africa’s NDC.118 Accordingly, in the National Assembly, various members of parliament linked the carbon tax to the Paris Agreement.119 While the ANC parliamentary majority and the EFF in opposition supported the Bill,120 the DA in opposition suggested that what was instead required was to decrease taxes to stimulate the economy.121 Similarly, in the debate in the National Council of Provinces, an ANC politician praised the Bill for ‘ensuring that South Africa will meet the NDC commitments as part of our ratification of the Paris Agreement’,122 while a DA politician rejected the proposal as it would elevate taxes and hamper the ability of corporations to create jobs.123 Nonetheless, because of the ANC majority in the National Assembly and the National Council of Provinces, the Bill was adopted.124 The 2019 Carbon Tax Act highlights in its preamble the necessity ‘to make a contribution to the global effort to stabilize greenhouse gas concentrations in the atmosphere at a level that avoids dangerous anthropogenic interference with the climate system’.125 Since 2018, another climate change-related proposal has been debated. ANC Minister of Environmental Affairs Edna Molewa suggested starting deliberations with civil society about a National Climate Change Bill. As one of the objectives, the draft law intends ‘to make a fair contribution to the global effort to stabilize greenhouse gas concentrations in the atmosphere at a level that avoids dangerous anthropogenic interference with the climate system within a timeframe and in a manner that enables economic, employment, social and environmental development to proceed in a sustainable manner’.126 In 2022, the Climate Change Bill was introduced into parliament. It refers to South Africa’s nationally determined contributions and contains a national

South Africa, March 2019, https://​unfccc​.int/​sites/​default/​files/​resource/​Final​%203rd​ %20BUR​%20of​%20South​%20Africa​%20100​.pdf. 118 Finance Standing Committee, Carbon Tax Draft Bill: National Treasury Briefing, 13 February 2018, https://​pmg​.org​.za/​committee​-meeting/​25778/​. 119 For the debate see National Assembly, 19 February 2019, 53–105. 120 Ibid, 61–4. 121 Ibid, 59–61. 122 National Council of Provinces, 28 March 2019, 113. 123 Ibid, 112. 124 National Assembly, 19 February 2019, 103–5; National Council of Provinces, 28 March 2019, 114. 125 Government Gazette, No. 42483, 23 May 2019, Carbon Tax Act, 2019; on this see also South Africa’s 3rd Biennial Update Report to the United Nations Framework Convention on Climate Change, Department of Environmental Affairs. Republic of South Africa, March 2019, https://​unfccc​.int/​sites/​default/​files/​resource/​Final​%203rd​ %20BUR​%20of​%20South​%20Africa​%20100​.pdf. 126 Government Gazette, No. 41689, 8 June 2018, 14. Comments by 8 August 2018.

Translating

109

greenhouse gas emissions trajectory which needs to be ‘consistent with […] the Republic’s international obligations’ (Chapter 5.21 of the Draft Law).127

5.3

CAT IMPLEMENTATION IN THE US

The US Congress only passed a few laws with the goal of transforming the treaties discussed here into the domestic system.128 The CAT implementing legislation is the exception to this general reluctance.129 In 1994, Congress passed the Federal Torture Act providing the US with extraterritorial jurisdiction over acts of torture committed outside of the US.130 The 1998 Foreign Affairs Reform and Restructuring Act then translated the non-refoulement principle into the domestic order. According to the Act, it ‘shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture’.131 The Act stressed that the ‘heads of the appropriate agencies shall prescribe regulations to implement the obligations of the United States under Article 3 of [CAT]’.132 This led to hundreds of aliens successfully claiming CAT relief before US immigration courts.133 In this context, Congress was keen to ensure that the US view on the CAT would govern the interpretation of the legislation in the domestic order. As in the case of the Genocide Convention,134 the US did not ratify the CAT before Congress had adopted implementing legislation. Even though the Senate had

127 PMG, Tracking the Climate Change Bill in Parliament, 19 February 2023, https://​pmg​.org​.za/​blog/​Trackingth​eClimateCh​angeBillin​Parliament​#:​~:​text​=​ The​%20Climate​%20Change​%20Bill​%20was​,​%2C​%20progressive​%2C​%20and​ %20incremental​%20response. 128 Generally on treaty implementation in the US, D. Stewart, ‘Recent Trends in U.S. Treaty Implementation’, in G. Fox, P. Dubinsky and B. Roth (eds), Supreme Law of the Land? Debating the Contemporary Effects of Treaties within the United States Legal System (CUP 2017), 228. 129 For a critique of the scope of the implementing legislation, P. Venetis, ‘Making Human Rights Treaty Law Actionable in the United States: The Case for Universal Implementing Legislation’, Alabama Law Review 63 (2011), 97 (123–30). 130 18 U.S.C. Section 2340A, www​.justice​.gov/​archives/​jm/​criminal​-resource​ -manual​-20​-torture​-18​-usc​-2340a; Stewart, ‘Trends’, 248–9. 131 The Foreign Affairs Reform and Restructuring Act of 1998, 3 P.L. 105-277, 21 October 1998, sec. 2242 (a). 132 Ibid., sec. 2242 (b). 133 M. Garcia, ‘The U.N. Convention Against Torture. Overview of U.S. Implementation Policy Concerning the Removal of Aliens’, CRS Report for Congress, updated 4 April 2006, 7–8. 134 Korey, ‘Genocide’, 289–90; Venetis, ‘Human Rights Treaty’, 120.

110

Treaties in parliaments and courts

granted its consent during the presidency of George H.W. Bush in 1990, the US only became a party to the treaty during the Clinton presidency in 1994 when the Federal Torture Act was passed. The executive regarded implementing legislation as a precondition for US participation.135 This allowed the legislature to highlight the importance of RUDs. According to the US government, the Federal Torture Act ‘adopts the Convention’s definition of torture, consistent with the terms of United States ratification’.136 The Foreign Affairs Reform and Restructuring Act stresses that the implementing legislation has to be interpreted in light of the terms of the CAT ‘subject to any reservations, understandings, declarations, and provisos contained in the United States Senate resolution of ratification of the Convention’.137 Thus, the various RUDs attached upon ratification became part and parcel of the implementing legislation. Accordingly, US courts rely on the RUDs when interpreting the Act.138 CAT implementation remained an issue, in particular in the context of the Bush administrations’ ‘war on terror’. In 2005, Congress adopted the Detainee Treatment Act aimed at prohibiting torture of individuals in US custody, regardless of where they are held.139 The Act defined ‘cruel, inhuman, or degrading treatment or punishment’ in light of the US constitution and ‘as defined in the United States Reservations, Declarations and Understandings to [the CAT]’.140 By passing implementing legislation before ratification and by pointing to the US RUDs, the political branches aimed at keeping control of the treaty’s application in the domestic order. In contrast, the ICCPR, the CERD and the OPs to the CRC are not regarded as necessitating any changes of domestic law. As shown above, the Senate pushed for far-reaching RUDs on those treaties before it was willing to provide its consent.141 The Bush I administration and the Senate agreed that implementing legislation for the ICCPR would not be necessary since the RUDs guaranteed that no conflict with US domestic law could arise.142 Similarly, the Clinton Henkin, ‘Ghost’, 348. United States of America, Report to the Committee Against Torture, CAT/C/28/ Add.5, 9 February 2000, para. 47. 137 The Foreign Affairs Reform and Restructuring Act of 1998, 3 P.L. 105-277, 21 October 1998, sec. 2242 (f) 2. 138 For an example see United States Court of Appeals, Second Circuit, Pierre v Gonzales, 502 F. 3d 109, 11 September 2007. 139 New York Times, ‘Senate Backs Detainee Treatment Rules’, 6 October 2005, www​.nytimes​.com/​2005/​10/​06/​world/​americas/​senate​-backs​-detainee​-treatment​-rules​ .html. 140 Detainee Treatment Act of 2005, 30 December 2005, Sec. 1003. 141 Chapter 3.1.3. 142 US Senate Report on ICCPR Ratification, 4–5. 135 136

Translating

111

administration signalled that it would not seek implementing legislation on the CERD,143 because, in its view, domestic laws already lived up to the international standard.144 Moreover, the Bush II administration agreed with the Senate that, with one minor exception, no new legislation was required to implement the OPs to the CRC.145 In fact, criticism has been advanced that this approach made the ratification of human rights treaties meaningless. In the words of Louis Henkin, the US ‘is pretending to assume international obligations but in fact is undertaking nothing’.146 Similarly, the UNFCCC did not trigger changes of domestic law. Because the treaty is regarded to entail no binding climate mitigation obligations, the necessity of implementing legislation was not debated in the Senate hearings on the UNFCCC. Rather, US actions on climate mitigation were described as unilateral and voluntary efforts.147 Moreover, even these voluntary attempts to pass domestic laws addressing climate protection saw little success. While in 1988 Democrats lobbied President Reagan into reluctant agreement not to veto the Global Climate Protection Act,148 which obliged the Reagan administration to develop an administrative plan for stabilizing greenhouse gas concentrations on the national level,149 other legislative proposals failed. The Clinton administration’s legislative attempt to pass a tax based on the heat content of fuel (British Thermal Unit tax) failed in the Senate.150 Even in a Democratic-dominated Congress the environmental measure did not muster enough support, partly because the constituency of the Democratic Party consisted not only of environmentalists but also of moderates concerned about the potential economic impacts of environmental action.151 During the Obama presidency, the Clean Energy and Security Act (Waxman-Markey Bill), which aimed at considerable reductions in US emissions by strengthening the renewable energy sector and by establishing a national cap-and-trade system, also did not make it through Congress.152 While the 219 votes in favour (with

Henkin, ‘Ghost’, 348. See the testimony by government officials before the Senate, International Convention on the Elimination of All Forms of Racial Discrimination (Ex.C, 95-2), 11 May 1994, 3. 145 Senate, 107th Congress, Exec. Rpt. 107.4, 12 June 2002. 146 Henkin, ‘Ghost’, 344. 147 Senate Report, United Nations Framework Convention on Climate Change, S. Ex. Rept. 102-55, 12–14. 148 Agrawala and Andresen, ‘United States’, 459. 149 S.420 – Global Climate Protection Act of 1987, 100th Congress, 29 January 1987. 150 Agrawala and Andresen, ‘United States’, 462. 151 Royden, ‘Clinton’, 420. 152 H.R. 2454 – 111th Congress (2009–10), passed House 26 June 2009. 143 144

112

Treaties in parliaments and courts

212 votes against) in the House of Representatives marked ‘the apogee’ of US political support for regulating emissions,153 a draft compromise produced by Senators John Kerry (Democrat), Joe Lieberman (Independent) and Lindsay Graham (Republican) was not scheduled for senatorial debate. The required 60 Senate votes necessary to break a potential filibuster could not be reached.154 The Obama administration’s hope that this domestic legislation would provide a boost for US credibility in international climate change negotiations was shattered.155 Because the November 2010 congressional elections led to Republican control of the House and a much slimmer Democratic majority in the Senate, the chances of climate change legislation waned. Moreover, the Tea Party movement, sceptical of the existence of anthropogenic climate change, came to assert a strong influence over the Republican caucus.156 The 2013 Climate Protection Act, sponsored by Democratic Senator Sanders, which envisioned a carbon pollution fee for producers of CO2 and sought carbon reductions of 80 per cent as compared to 2005 by 2050 on the part of the US, received the support of only one fellow Democratic congresswoman.157 In any case, the Obama administration was aware that it could not rely on Congress for assertive climate change action.158 In August 2015, Obama announced the Clean Power Plan as an executive order aimed at curbing greenhouse gas emissions from power plants by 32 per cent by 2030, relative to 2005 levels.159 During the presidency of Donald Trump, Democrats in Congress attempted to put forward a political alternative to the renunciation of the Paris Agreement. In February 2019, Democratic House member Alexandra Ocasio-Cortez introduced House Resolution 109 with 99 cosponsors, recognizing ‘the duty of the Federal Government to create a Green New Deal’ in order to ‘achieve net-zero 153 M. Gerrard, ‘United States Climate Change Law’, in K. Gray, R. Tarasofsky and C. Carlarne (eds), The Oxford Handbook of International Climate Change Law (OUP 2016), 607 (610); 44 Democrats had voted against the bill, while eight Republicans had supported the draft, Final Vote Results for Roll Call 477, HR 2454, 26 June 2009, http://​ clerk​.house​.gov/​evs/​2009/​roll477​.xml. 154 T. McGarity, ‘The Disruptive Politics of Climate Disruption’, Nova Law Review 38 (2013), 393 (438–57). 155 S. Goldenberg, ‘Barack Obama’s US Climate Change Bill Passes Key Congress Vote’, The Guardian, 27 June 2009, www​.theguardian​.com/​environment/​2009/​jun/​27/​ barack​-obama​-climate​-change​-bill. 156 J. Broder, ‘Climate Change Doubt Is Tea Party Article of Faith’, New York Times, 20 October 2010; http://​chemconnections​.org/​general/​chem120/​Global​%20Warming​ %20Party​%20​-​%20NYT​.pdf. 157 S.332 Climate Protection Act of 2013, 113th Congress, 14 February 2013. 158 Gerrard, ‘United States’, 611. 159 Federal Register, Environmental Protection Agency, 40 CFR Part 60 Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units; Final Rule, 23 October 2015.

Translating

113

greenhouse gas emissions through a fair and just transition for all communities and workers’ through a ten-year national mobilization.160 Moreover, Democratic members of Congress gathered behind the proposed Climate Action Now Act, which calls for US adherence to the NDC promised under the Paris Agreement framework.161 While the Climate Action Now Act received a majority in the Democrat-dominated House,162 the proposal was stalled in the Republican-dominated Senate.163 After President Joe Biden took office in January 2021, domestic implementation legislation became a possibility. The Democrats had a majority in the House. The Senate was split evenly but the tie-breaking vote of Democrat Vice President Kamala Harris seemed to promise that the Democrats could win the necessary majority of 51 votes. Since the policy proposal was framed as a budget reconciliation bill, the filibuster rule (and thus the 60-vote quorum in the Senate) did not apply.164 Nonetheless, the Biden administration’s Build Back Better Act failed due to resistance by Democrat Senator Joe Manchin. Only after Biden had considerably reduced the ambition of the proposal did Manchin agree and Congress passed the Inflation Reduction Act with a Democratic majority (with all Republicans against).165 The Act commits to $370 billion of investment in clean energy and a number of tax incentives. Even though the legislation does not mention the Paris Agreement or other international instruments, its panoply of measures are regarded as bringing the US closer to complying with its NDCs.166 This episode shows that if the US adopts targets on climate mitigation at the international level, the prospects for implementing legislation look slim unless and until the political majorities in the House and Senate are with the Democrats.

H. Res. 109, 116th Congress, 7 February 2019. H.R. 9. Climate Action Now Act, 116th Congress, 2 May 2019. 162 Final Vote Results for Roll Call 184, HR 9, 2 May 2019, http://​clerk​.house​.gov/​ evs/​2019/​roll184​.xml. 163 McConnell, ‘Ill-Fated’. 164 G. Dotson and D. Maghamfar, The Clean Air Act Amendments of 2022: Clean Air, Climate Change, and the Inflation Reduction Act’, Environmental Law Reporter 53 (2023), 10017 (10018). 165 Public Law 117-169, 117th Congress, 16 August 2022. 166 M. Barbanell, A Brief Summary of the Climate and Energy Provisions of the Inflation Reduction Act of 2022, World Resource Instituts, 28 October 2022, www​ .wri​.org/​update/​brief​-summary​-climate​-and​-energy​-provisions​-inflation​-reduction​-act​ -2022. 160 161

114

5.4

Treaties in parliaments and courts

INTEGRATION OF HUMAN RIGHTS TREATIES IN INDIA

In India, the Rome Statute and climate change treaties did not trigger legislative action. However, human rights treaties had some influence on parliamentary debates about domestic legislation. Article 253 of the Indian constitution vests parliament with the power ‘to make any law […] for implementing any treaty, agreement or convention’. In the context of the Vienna Conference in 1993, the Indian parliament adopted the Protection of Human Rights Act (PHRA) establishing an independent national human rights commission to oversee violations of the constitution and international human rights.167 The Act highlights the relevance of the ICCPR and the ICESCR in the domestic order because it states the national human rights bodies’ competence to assess the implementation and compliance with the ICCPR and the ICESCR and potentially other UN human rights treaties.168 Some court decisions suggest that through the Act the legislative chambers implemented UN human rights treaties such as CEDAW, the ICCPR and the ICESCR. In the 1996 C. Masilamani Mudaliar v Idol of Sri Swaminathanswami case, the Indian Supreme Court held that through the 1993 PHRA ‘the principles embodied in CEDAW […] became [an] integral part of the Indian Constitution and the Human Rights Act and became enforceable’.169 In the Mandal case, the High Court of Delhi put forward that the ICCPR and the ICESCR had been translated into the domestic order through the PHRA.170 However, in other key cases of de facto direct application (the Vishaka and Transgender cases), the PHRA did not play a major role.171 The PHRA seems to be primarily directed at setting up national and state human rights institutions that oversee the authorities’ actions in relation to human rights. In any case, Indian accession to the CRC in 1992 and the ratification of CEDAW in 1993 did not trigger more specific immediate implementing laws. When some parliamentarians inquired about the government’s steps

167 The Protection of Human Rights Act, 1993, 8 January 1994; on this see N.S. Gehlot, ‘India and Human Rights: Emerging Realities’, The Indian Journal of Political Science 55 (1994), 381. 168 Chapter I, Section 2(f), The Protection of Human Rights Act. 169 C. Masilamani Mudaliar v Idol of Sri Swaminathanswami, (1996) 8 SCC 525, 30 January 1996; on a similar case ignoring a reservation see DK Basu v State of West Bengal (1997) 1 SCC 416, 42, 18 December 1996. 170 High Court of Delhi, Laxmi Mandal v Deen Dayal Harinagar Hospital & Ors, WP(C) Nos 8853 of 2008, and 10700 of 2009 (2010), 4 June 2010, para. 26; see also High Court of Delhi, Maken v Union of India, W.P.(c) 11616/2015, 18 March 2019. 171 On de facto direct application see Chapter 7.4.

Translating

115

to protect the rights of children after the CRC ratification,172 the government pointed to the 1992 National Plan of Action on Children instead of legislation.173 Similarly, the government developed a National Policy for the Empowerment of Women, which referred to Indian ratification of CEDAW,174 but no legislative implementing measures were adopted. This changed with the turn of the millennium. In 2000, the Vajpayee government emphasized the necessity to bring the Juvenile Justice Act of 1986 ‘in conformity with CRC’ and pointed to various CRC provisions with which India intended to comply.175 Accordingly, the reformed Juvenile Justice (Care and Protection of Children) Act of 2000, which raised the age level for treatment as a juvenile in criminal law from 14 years to 18 years, prominently referred to the CRC as a model behind the Act.176 In the Lok Sabha debate on the law, one delegate of the parliamentary majority pointed to the CRC as inspiration for reform of the criminal system for juveniles.177 While politicians of the Indian National Congress (INC) in opposition suggested widening the protections for children, the majority passed the Act without such amendments.178 Other efforts to increase the protection of children’s rights with reference to human rights were less successful. In 2009, an INC politician introduced a Child Welfare Bill stressing that India should live up to its commitments under the CRC.179 However, no real debate on the issue ensued. Moreover, at times, the protections in implementing laws were even undone. After a public outcry over the low level of punishment of a juvenile who had participated in a gang rape in Delhi in 2012,180 the Juvenile Justice (Care and Protection of Children) Act of 2015 was adopted.181 The Act, which had been proposed by the Modi government, lowered the age for the treatment of juveniles as adults to 16

Lok Sabha, Ninth Series, Vol. VI, No. 42, 16 May 1990, 510. Lok Sabha, Tenth Series, Vol. XXVI, No. 4, 7 December 1993, 253. 174 Eleventh Series, Vol. X., No. 12, 10 March 1997, 81. 175 Lok Sabha Debates, Thirteenth Series, Vol. XII, No. 20, 15 December 2000, 328-329. 176 The Gazette of India, The Juvenile Justice (Care and Protection of Children) Act, 20, Act No. 56 of 2000, 30 December 2000. 177 Lok Sabha Debates, Thirteenth Series, Vol. XIII, No. 21, 18 December 2000, 371–2. 178 Ibid, 386–400. 179 Fifteenth Series, Vol. XI, 13 August 2010, 127. 180 A. Babar, ‘The Law for Juvenile Injustice. Critical Analysis of Juvenile Justice (Care and Protection) Act, 2015’, Journal of Legal Studies and Research 4 (2018), 1 (13). 181 The Juvenile Justice (Care and Protection of Children) Bill, 2014, Bill No. 99 of 2014, www​.prsindia​.org/​uploads/​media/​Juvenile​%20Justice/​Juvenile​%20justice​ %20Bill​,​%202014​.pdf. 172 173

116

Treaties in parliaments and courts

years of age in the case of heinous crimes.182 In the Lok Sabha debate, various politicians in opposition, such as Congress parliamentarian Shashi Tharoor, highlighted that the lowering of the age violated the CRC.183 Nonetheless, the Bharatiya Janata Party (BJP)-dominated parliamentary majority passed the Act.184 Moreover, implementing action on CEDAW followed rather unusual patterns. Quite extraordinarily, at times, implementing legislation was not triggered by executive ratification of a treaty but responded to judgments of the Indian Supreme Court. In its famous 1997 Vishaka v State of Rajastan ruling, the Supreme Court developed guidelines against the sexual harassment of women in the workplace while extensively relying on CEDAW in its reasoning.185 The Court put forward that the lack of legislative action required action on the part of the judiciary.186 Nonetheless, legislation on sexual harassment did not receive priority for some time, even though the women’s movement had long pushed for it.187 Only in 2010 did the Union Cabinet table a draft law in the Lok Sabha.188 In the parliamentary debate, the Committee on Human Resource Development of the Rajya Sabha successfully suggested amending the government’s proposal and broadening the scope of the bill to include domestic workers.189 In 2013, the Rajya Sabha then unanimously passed the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act.190 In its preamble, the Act stresses that ‘the protection against sexual harassment and the right to work with dignity are universally

Ibid. Sixteenth Series, Vol. IX, No. 30, 6 May 2015, 533–4. 184 The Juvenile Justice (Care and Protection of Children) Bill, 2014, Bill No. 99 of 2014, www​.prsindia​.org/​uploads/​media/​Juvenile​%20Justice/​Juvenile​%20justice​ %20Bill​,​%202014​.pdf. 185 Vishaka v State of Rajastan, AIR 1997 SC 3011, 13 August 1997; on this see Chapter 7.4. 186 Ibid. 187 D. Bush, ‘Women’s Movements and State Policy Reform Aimed at Domestic Violence Against Women: A Comparison of the Consequences of Movement Mobilization in the US and India’, Gender & Society 6 (1992), 587. 188 Lok Sabha, Introduction of the Protection of Women Against Sexual Harassment at Workplace Bill, 2010, 7 December 2010. 189 PRS Legislative Research, An Overview of the Sexual Harassment Bill passed by Parliament, 2013, www​.prsindia​.org/​hi/​theprsblog/​overview​-sexual​-harassment​-bill​ -passed​-parliament. 190 The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, Act No. 14 of 2013, 22 April 2013; G. Parsai, ‘Parliament Passes Bill to Prevent Sexual Harassment at Workplace’, 26 February 2013, www​ .thehindu​.com/​news/​national/​parliament​-passes​-bill​-to​-prevent​-sexual​-harassment​-at​ -workplace/​article4455795​.ece. 182 183

Translating

117

recognised human rights by international conventions and instruments such as [CEDAW]’.191 Similarly, the 2019 Transgender Persons (Protection of Rights) Bill builds on the Supreme Court’s 2013 transgender case, which heavily referred to international agreements and international instruments.192 In the parliamentary debate, Congress Party member Shashi Tharoor, in opposition, expressed his support for a comprehensive understanding of the Bill with reference to human rights treaties. The representative emphasized that the Act would simply mean ‘granting people universally recognised rights’ since the current treatment of transgender people would violate the non-discrimination clause of the ICCPR and the obligation under ICESCR to grant everybody the highest attainable health standard.193 While some politicians of the opposition criticized the ‘regressive and half-hearted’ Bill in the Rajya Sabha for stigmatizing transgender persons,194 the Bill was passed with the votes of the Bharatiya Janata Party majority.195 In any case, without the Supreme Court decision, it would presumably have taken years for such a bill to evolve. Furthermore, extensive deliberations on implementing legislation on the CRPD led to the adoption of the Rights of Persons with Disabilities Act of 2016.196 Since Indian ratification of the CRPD in 2007, the domestic disability rights movement had pressed for legislative implementation.197 The Act replaced the existing Persons with Disabilities Act of 1995 in order to ‘give effect to the United Nations Convention on the Rights of Persons with Disabilities’.198 The preamble highlights that harmonizing the domestic laws

Ibid. On the Bill see The Transgender Persons (Protection of Rights) Act, 2019, 5 December 2019; Supreme Court of India, National Legal Service Authorities v India (2014), WP (Civil) No 604 of 2013; on the case National Legal Service Authorities v India (2014), WP (Civil) No 604 of 2013, on this see Chapter 6.2.4. 193 Sixteenth Lok Sabha, Further discussion on the Rights of Transgenders Persons Bill, 2014 as moved by Shri Bajayant 'Jay' Panda, 26 February 2016, Dr. Shashi Tharoor, http://​loksabhaph​.nic​.in/​Debates/​Result16​.aspx​?dbsl​=​7156. 194 The Hindu, ‘Parliament Passes Bill to Protect Rights of Transgenders’, 26 November 2019, www​.thehindu​.com/​news/​national/​parliament​-passes​-bill​-to​ -protect​-rights​-of​-transgenders/​article30087790​.ece; The Wire, ‘Rajya Sabha Passes Controversial Transgender Rights Bill’, 26 November 2019, https://​thewire​.in/​lgbtqia/​ rajya​-sabha​-passes​-criticised​-transgender​-rights​-bill. 195 The Hindu, ‘Parliament’. 196 S. Atrey, ‘India’, in L. Waddington and A. Lawson (eds), The UN Convention on the Rights of Persons with Disabilities in Practice: A Comparative Analysis of the Role of Courts (OUP 2018), 186 (189-190). 197 N. Ghosh, ‘Introduction: Interrogating Disability in India’ in ibid. (ed.), Interrogating Disability in India. Theory and Practice (Springer 2016), 1 (13). 198 The Rights of Persons with Disabilities Act, 2016 (NO. 49 OF 2016), 27 December 2016. 191 192

118

Treaties in parliaments and courts

with the treaty was a key driving force behind the legislative measure.199 The Act broadened the definition of disability from 7 categories to 21, strengthened the regulatory bodies and introduced fines and imprisonment for discrimination.200 In the parliamentary debate, parliamentarians of the government coalition and the opposition generally supported the law. However, an amendment introduced by Congress members and aimed at raising the quota of reservation of government jobs for persons with disabilities was defeated.201 Also, the Act has been criticized for not going as far as earlier draft bills.202 Be that as it may, nine years after Indian ratification of the CRPD, implementing legislation was enacted. Other attempts to pass implementing legislation failed. The Indian government had long declared that it could not ratify the CAT on behalf of India before implementing legislation had been passed.203 Accordingly, the preamble of a 2010 draft Prevention of Torture Bill emphasized India’s signature of the CAT and the necessity ‘to ratify the said Convention and to provide for more effective implementation’.204 In the Lok Sabha debate on the implementing legislation, the INC politician Shashi Tharoor praised the Bill and rejoiced that CAT ratification could no longer be delayed after the adoption of the Bill.205 However, after the Lok Sabha had passed the Bill in May 2010206 and after a select committee of the Rajya Sabha had commented favourably on the legislation,207 the legislative process was discontinued.208 After the Law Commission of India had produced another draft law in 2017 against the background of a Supreme Court judgment,209 some parliamentarians again

Ibid, Preamble. Ibid; on this PRS Legislative Research, Standing Committee Report Summary. The Rights of Persons with Disabilities Bill, 2014, 26 May 2015, https://​www​.prsindia​ .org/​sites/​default/​files/​bill​_files/​SCR​%20summary​%20Disabilities​%20Bill​.pdf. 201 Press Trust of India, ‘Parliament Passes “Rights of Persons with Disabilities” Bill’, 16 December 2016, https://​yourstory​.com/​2016/​12/​parliament​-rights​-of​-persons​ -disabilities​-bill. 202 Atrey, ‘India’, 189–90. 203 Lok Sabha, Fifteenth Series, Vol. IX, No. 31, 6 March 2010, 285. 204 The Prevention of Torture Bill, 2010, as introduced in Lok Sabha, https://​prsindia​ .org/​files/​bills​_acts/​bills​_parliament/​prevention​_of​_torture​_bill​_2010​.pdf, Preamble. 205 Lok Sabha, Fifteenth Series, Vol. IX, No. 31, 6 March 2010, 289. 206 Ibid, 312. 207 Rajya Sabha, Report of the Select Committee on the Prevention of Torture Bill, 2010, 6 December 2010 https://​prsindia​.org/​files/​bills​_acts/​bills​_parliament/​Select​ _Committee​_Report​_Prevention​_of​_Torture​_Bill​_2010​.pdf. 208 G. Bhatnagar, ‘SC Directs All States, UTs to Send Replies on Torture Bill Within Three Weeks,’ 22 January 2019, https://​thewire​.in/​law/​sc​-directs​-all​-states​-uts​-to​-send​ -replies​-on​-torture​-bill​-within​-three​-weeks. 209 Bill No. XXIX of 2017, 15 December 2017. 199 200

Translating

119

introduced the Prevention of Torture Bill in the Rajya Sabha.210 Nonetheless, no legislation has been adopted since. While the record in relation to human rights treaties is mixed here, the Rome Statute and climate change treaties did not trigger implementing legislation. In early Indian environmental legislation such as the Water Act in 1974 and the Air Act in 1981, references to the Stockholm Conference of 1972 and its environmental principles had played a key role. As implementing legislation, the Acts could be passed by the central legislature even though the states enjoyed competences for various areas relating to the environment.211 In contrast, the 1992 Rio summit only left partial traces in domestic legislation. In 2002, the parliamentary bodies passed the Biological Diversity Act to meet certain provisions of the Biodiversity Convention, which had been adopted in Rio.212 In relation to the UNFCCC, the Indian legislature did not take similar action, probably because the main reporting obligations could be performed by executive.213 Also, the Kyoto Protocol did not trigger legislative action, because it does not contain binding mitigation obligations for non-Annex I countries. Instead of legislative action, the executive adopted a National Action Plan on Climate Change in 2008 suggesting various policies in different issue areas.214 Despite criticism, the Paris Agreement is also supposed to be implemented on the basis of executive programmes rather than comprehensive legislation.215

5.5

DIVERGENT RATIFICATION RECORDS, DISPARATE CONSTITUTIONAL DESIGNS AND THE ISSUE OF POLITICAL MAJORITIES

The respective parliaments translated the treaties discussed here into their domestic orders to different extents. Generally, one may contrast relatively far-reaching legislative action in Germany and South Africa with more hesitant legislative practices in the United States and India. In South Africa and Germany, the adoption of the Rome Statute was the impetus for legislation on Ibid. A. Sadat, ‘India’s Treaty Practice in Climate Change’, Journal of the Indian Law Institute 56 (2014), 95 (96); M. Anderson, ‘International Environmental Law in Indian Courts’, Review of European, Comparative and International Environmental Law 7 (1998), 21 (22–3). 212 The Biological Diversity Act, 2002, Act No. 18 of 2003, 5 February 2003. 213 Sadat, ‘Practice’, 99. 214 Government of India, National Action Plan on Climate Change, 30 June 2008. 215 One reason for the lack of comprehensive action seems to be inclarity about the competences between the states and legislation for comprehensive climate change action, P. Kumar/A. Naik, ‘India’s Domestic Climate Policy Is Fragmented and Lacks Clarity’, Engage 54, 16 February 2019. 210 211

120

Treaties in parliaments and courts

cooperation with the ICC and for the establishment of domestic procedures on the prosecution of atrocity crimes. German climate change laws were partly inspired by the Kyoto Protocol and the Paris Agreement, while in South Africa the Paris Agreement triggered debate about legislative action on climate protection measures. Various South African laws refer in their preambles to human rights treaties as inspiration for legislative action. In Germany, the ratification of human rights treaties usually did not generate legislative action but was at times the basis for domestic debate about the shortcomings of implementation. In contrast, the US Congress only adopted a bill implementing CAT and even the Inflation Reduction Act did not refer to the Paris Agreement. In India, the CRC, the CEDAW and the CRPD triggered domestic legislation, but the legislative process often took a rather long time and at times only started after judicial intervention. The reasons for these differences are manifold. First, the disparate ratification records on the respective treaties explain the divergence in legislative activities. Because South Africa and Germany had been key drivers of the negotiations on the Rome Statute at the international level, they were quick to endorse the international regime by adopting domestic legislation. In contrast, the parliamentary chambers in the US and India did not pass any legislation in relation to the Rome Statute because the US and India had not ratified the treaty. Because Germany (and the EC) had pushed for binding obligations to mitigate climate change under the Kyoto Protocol, early German climate change legislation referred to the international scheme. In contrast, because the US did not ratify the Kyoto Protocol and because India and South Africa were under no binding climate mitigation obligations as non-Annex I countries, no legislative action was taken to comply with the Kyoto Protocol. The South African parliament only started to adopt legislation with reference to international climate change law after South Africa had promised its NDC under the framework of the Paris Agreement. Second, the existence or non-existence of political majorities for legislative implementing action obviously contributed to the differences. In single-party-dominated South Africa, the ANC government and the ANC parliamentary majority in both houses are able to push their legislative projects through the parliamentary bodies without needing to compromise. In fact, the executive usually initiated implementing laws and parliament only fine-tuned the legislation.216 Accordingly, the DA’s rejection of the Carbon Tax Bill could not stall the legislative process. In Germany, the majority parties also support the legislative drafts of ‘their’ government. While the ministerial bureaucra-

216 J. Sarkin, ‘The Development of a Human Rights Culture in South Africa’, Human Rights Quarterly 20 (1998), 628 (638).

Translating

121

cies play a key role as the drafters of legislation,217 the majority parties often protect the government’s drafts against criticism by the opposition. However, insufficient implementation may become a key argument for opposition parliamentarians to push for more far-reaching legislative projects. The Green Party and Left Party in opposition pointed to the CRPD and the Paris Agreement as making legislative steps necessary. By passing the federal participation law and the federal climate change law, the government and the majority parties seemed to respond to pressure of the opposition and changed expectations in society. In India, parliament usually follows the executive’s leadership. The parliamentary majority supported the legislation on human rights treaties proposed by the respective coalition governments, at times together with the opposition. When the executive decided to discontinue the legislative process as in the case of CAT implementation, no further legislative action was taken. In the US, the prospects for legislative action on the treaties discussed here generally look slim because of the political divisions in Congress. Because of Republican scepticism, Congress for long was not able to agree on domestic legislation addressing climate change. Third, the respective constitutional designs also affect parliament’s role as a translator. Germany’s embeddedness in the EU plays a crucial role for legislative initiatives on some of the treaties discussed here. As the example of the European emissions trading scheme demonstrates, the necessity to pass implementing legislation to the EC Directive provided the lever for domestic legislation. Moreover, the German legislature did not take action until various EU directives obliged Germany to draft the 2006 General Act on Equal Treatment,218 even though the CERD Committee had criticized the lack of anti-discrimination laws for private actors in Germany since the 1990s.219 Generally speaking, EU law more often triggers legislative action than UN human rights treaties or decisions of UN treaty bodies.220 Furthermore, the German constitutional design allows to overcome disagreement on the scope of implementing legislation. The appointment of the mediation committee under Article 77(2) of the Basic Law aims at reconciling the interests of the Bundesrat and Bundestag, leading to a negotiated solution.221 Even when the opposition disagreed with the scope of the legislative measures on certain

Kersten, ‘Art. 76’, para. 54. Wenzel, ‘Germany’, 324; on the European background of the legislation see J. Wiemann, ‘Obligation to Contract and the German General Act on Equal Treatment (Allgemeines Gleichbehandlungsgesetz)’, German Law Journal 11 (2010), 1131 (1132–4). 219 UN Doc CERD/C/304/Add.24, 23 April 1997, para. 20. 220 Wenzel, ‘Germany’, 324. 221 See Federal Constitutional Court, 2 BvE 3/02, 8 December 2004, para. 58. 217 218

122

Treaties in parliaments and courts

treaties and potentially could have stopped the measure due to the lack of a government majority in the Bundesrat, the mediation committee found a compromise formula. The CCAIL, the Renewable Energy Sources Act and the Greenhouse Gas Emissions Trading Act were passed after such consensus had been reached. In contrast, in the US, the constitutional setting limits the probability of finding a majority on legislation on the treaties discussed here in the parliamentary procedure. As the example of domestic climate action demonstrates, the increasing reliance of the Senate minority on the filibuster triggering a ‘60-vote Senate’ renders consensus on divisive topics such as climate change legislation particularly difficult.222 Only when the filibuster can be avoided, as in the case of the Inflation Reduction Act, can meaningful legislation be adopted. In India, the slow progress on implementing legislation seems to be linked to the non-involvement of parliament in the treaty-making process. While the lack of capacity and the regional outlook of various parties in the Lok Sabha are potential further explanations,223 the sole executive treaty-making in India leaves the parliamentary chambers often ill-informed about the legislative possibilities. Accordingly, legislative action at times is initiated through the Supreme Court. By developing guidelines on the prevention of sexual harassment at the workplace based on CEDAW or on the rights of transgender persons based on UN human rights treaties, the Court compensates for the lack of parliamentary action.

222 On party polarization and the filibuster see F. Lee, ‘How Party Polarization Affects Governance’, Annual Review of Political Science 18 (2015), 261 (269). 223 On the regional outlook of Indian parties, Ziegfeld, Regional, 170–90; generally, on the relevance of capacity for the implementation of (human rights) treaties, W. Cole, ‘Mind the Gap: State Capacity and the Implementation of Human Rights Treaties’, International Organization (2015), 405.

PART II

Courts Before assessing the impact of domestic courts on treaties, one should point to the different institutional and political settings for the judiciary in the respective jurisdictions. First, when it comes to the apex courts, one needs to take note of the rules on the composition and tenure schemes.1 The Indian Supreme Court consists of 31 judges, with mandatory retirement at 65 years of age, usually deciding as a bench of two or three (division bench) but at times as a bench of five or more (constitution bench).2 The ‘polyvocality’ of the Supreme Court makes it difficult to detect a coherent Supreme Court position on treaties in the domestic order.3 In contrast, the US Supreme Court’s setup, with nine judges appointed for life and a culture of writing dissenting

1 The distinction between two supreme courts with general jurisdiction also adjudicating on constitutional matters (India and the United States) and two constitutional courts as specialized courts empowered with constitutional review (Germany and South Africa) does not seem to have strong effects when it comes to the different perspectives on treaties; on such comparison see R. Rogowski and T. Gawron, ‘Constitutional Litigation as Dispute Processing: Comparing the U.S. Supreme Court and the German Federal Constitutional Court’, in ibid. (eds.), Constitutional Courts in Comparison: The US Supreme Court and the German Federal Constitutional Court (Berghahn 2016), 1 (1–2). 2 N. Robinson, ‘Structure Matters: The Impact of Court Structure on the Indian and US Supreme Courts’, The American Journal of Comparative Law 61 (2013), 173 (184–6); M. Khosla and A. Padmanabhanin, ‘The Supreme Court’, in D. Kapur, P.B. Mehta and M. Vaishnav (eds), Rethinking Public Institutions in India (OUP 2017), 104 (126–8). 3 Robinson, ‘Structure Matters’, 184–6; ibid, ‘The Structure and Functioning of the Supreme Court of India, in G. Rosenberg, S. Krishnaswamy and S. Bail (eds), A Qualified Hope: The Indian Supreme Court and Progressive Social Change (CUP 2019), 23 (33–4).

123

124

Treaties in parliaments and courts

opinions, simplifies tracing the different perspectives of particular judges.4 The South African Constitutional Court and the German Constitutional Court are in between the two. At least 8 of the South African Constitutional Court’s 11 judges are appointed for non-renewable 15-year terms,5 whereas the eight justices of the two Senates of the German Federal Constitutional Court are appointed for non-renewable 12-year terms.6 While one may find general lines of the respective courts’ jurisprudence, one also needs to account for changes in personnel. The picture becomes even more complex if one includes lower courts in the analysis. These courts often follow the jurisprudence of the highest courts but may also diverge from established jurisprudence.7 Rather than exposing ‘the approach’ of the Indian, South African, US or German judiciaries to the treaties discussed here, this study flags, when possible, which judges take which perspective on the treaties. Second, the highest courts in the four jurisdictions stand for particular traditions of constitutionalism. The jurisprudence of the South African Constitutional Court and the Indian Supreme Court is regarded as stellar examples of ‘transformative constitutionalism’, which aims at ‘transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction’.8 The South African Constitutional Court is known for having a broad mandate in a constitutional setting directed

4 On the US Supreme Court J. Crowe, ‘The Constitutional Politics of the Judiciary’, in M. Tushnet, M. Graber and S. Levinson (eds), The Oxford Handbook of the U.S. Constitution (OUP 2015), 197; C. Baron, ‘Supreme Court of the United States’, Max Planck Encyclopedia of Comparative Constitutional Law (January 2017). 5 Section 176(1) of the constitution envisions 12-year terms which however have been extended to 15 years by the Judges’ Remuneration and Conditions of Employment Act 47 of 2001; on the court J. Fowkes, ‘Constitutional Court of South Africa’, Max Planck Encyclopedia of Comparative Constitutional Law (September 2017); Klug, Constitution, 230–49; P. de Vos and W. Freedman (eds), South African Constitutional Law in Context (OUP 2014), 213–22. 6 On the German Court see D. Grimm, ‘Federal Constitutional Court of Germany (Bundesverfassungsgericht)’, Max Planck Encyclopedia of Comparative Constitutional Law (September 2017); K. Stüwe, ‘The U.S. Supreme Court and the German Federal Constitutional Court, Selection, Nomination, and Election of Justices’, in R. Rogowski and T. Gawron (eds), Constitutional Courts in Comparison: The US Supreme Court and the German Federal Constitutional Court (Berghahn 2016), 229. 7 N. Robinson, ‘Judicial Architecture and Capacity’, in S. Choudhry, M. Khosla and P.B. Mehta (eds), The Oxford Handbook of the Indian Constitution (OUP 2016), 330. 8 K. Klare, ‘Legal Culture and Transformative Constitutionalism’, South African Journal of Human Rights 14 (1998), 146 (150); on the ‘activist’ courts see Bonilla Maldonado, ‘Introduction’, 21–2.

Courts

125

at transforming society,9 even though some question the effectiveness of this mandate in a single-party-dominated democracy.10 The Indian Supreme Court is famous for its public interest litigation granting broad standing to individuals and NGOs and developing far-reaching judicial remedial powers in the context of social and economic rights jurisprudence.11 The German Federal Constitutional Court is often regarded as also taking a rather activist approach on the protection of fundamental rights.12 This has led some to apply the concept of transformative constitutionalism to the Court,13 whereas others highlight the missing limits of its judicial power.14 The US Supreme Court is also known for its far-reaching jurisprudence,15 but is often seen as a highly politicized institution. Because of the polarization of the US society, its decisions are often analysed with the perception of a court divided between more liberal and more conservative justices and a swing vote tipping the scales in the most controversial cases.16 This background needs to be kept in mind when analysing the judicial approach to treaties.

9 Klare, ‘Transformative’, 146; J. Fowkes, Building the Constitution: The Practice of Constitutional Interpretation in South Africa (CUP 2016), 121–6; 147–55. 10 S. Issacharoff, ‘The Democratic Risk to Democratic Constitutions’, Constitutional Court Review 5 (2014), 1; S. Choudhry, ‘“He Had a Mandate”: The South African Constitutional Court and the African National Congress in a Dominant Party Democracy’, Constitutional Court Review 2 (2010), 1; see also T. Roux, ‘Constitutional Courts as Democratic Consolidators: Insights from South Africa after 20 Years’, Journal of Southern African Studies 42 (2016), 5; P. de Vos, ‘Between Promise and Practice: Constitutionalism in South Africa More Than 20 Years after the Advent of Democracy’, in M. Adams, A. Meuwese and E. Hirsch Ballin (eds), Constitutionalism and the Rule of Law. Bridging Idealism and Realism (CUP 2017), 226. 11 S. Divan, ‘Public Interest Litigation’, in S. Choudhry, M. Khosla and P.B. Mehta (eds), The Oxford Handbook of the Indian Constitution (OUP 2016), 662 (668–72); M. Tushnet, ‘The Indian Constitution Seen from Outside’, in S. Choudhry, M. Khosla and P.B. Mehta (eds), The Oxford Handbook of the Indian Constitution (OUP 2016), 1019 (1024–7); B. Neuborne, ‘The Supreme Court of India’, ICON 1 (2003), 476 (500–4). 12 Grimm, ‘Federal Constitutional Court’, para. 28. 13 M. Hailbronner, ‘Transformative Constitutionalism: Not Only in the Global South’, The American Journal of Comparative Law 65 (2017), 527. 14 M. Jestaedt, O. Lepsius, C. Möllers and C. Schönberger (eds), The German Federal Constitutional Court: The Court Without Limits (OUP 2020). 15 On the concept of popular constitutionalism, H. Klug, ‘The Constitution in Comparative Perspective’, in M. Tushnet, M. Graber and S. Levinson (eds), The Oxford Handbook of the U.S. Constitution (OUP 2015), 943 (948–9). 16 P. Enns and P. Wohlfarth, ‘The Swing Justice’, The Journal of Politics 75 (2013), 1089; A. Martin, K. Quinn and L. Epstein, ‘The Median Justice on the United States Supreme Court’, North Carolina Law Review 83 (2004), 1275.

126

Treaties in parliaments and courts

This part of the study aims at developing a typology on how courts position themselves with respect to treaties. The analysis is based on full-text searches in key databases on the case law in the four jurisdictions (Juris for German case law, Indian Kanoon for Indian case law, SAFLII for South African case law and Westlaw for US case law). While the study does not claim to fully reproduce the existing jurisprudence, the selected decisions represent the cases which – in the view of the author – left the strongest traces in the judicial reasoning and the academic debate. To organize the case law, this study groups domestic courts’ decisions in the different jurisdictions along the lines of disparate interpretative approaches in relation to treaties. As a study group of the International Law Association (ILA) stresses, the divergent perspectives of domestic courts toward international law can be described as either ‘harmonization techniques’ or ‘avoidance techniques’.17 The ILA regards the former as attempting to give effect to international legal provisions in the respective domestic legal systems, while the latter reject the application of international legal rules.18 Similarly, I distinguish between ‘reliance’ of courts when they grant treaties an important role in the domestic system and ‘reluctance’ of courts when they are hesitant to apply international treaty obligations. At times it may be difficult to classify a court’s decision as ‘reliant’ or as ‘reluctant’ given the indeterminacy of (some) treaty provisions.19 Moreover, different international courts and treaty bodies might suggest divergent interpretations of treaty provisions. Will it be more international law-friendly to follow the one interpretation, but not the other? However, in most cases one may distinguish between a more reliant and a more reluctant perspective on treaties’ role in the domestic order. I suggest that as an expression of ‘reliance’, courts consistently interpret domestic legislation in line with treaties (Chapter 6), directly apply treaty provisions in the domestic order (Chapter 7) and refer to treaties as evidence for customary international law (Chapter 8). As an expression of ‘reluctance’, courts reject the treatment of treaties as persuasive authority or deviate from a particular decision of an international court or treaty body (Chapter 9). They also apply the notion of non-self-executing treaty provisions and limit the reach of treaty provisions in the domestic order (Chapter 10) or employ non-justiciability notions to avoid deciding on a matter concerning foreign relations (Chapter 11). By grouping the case law along the lines of the interpretative approaches,

ILA Study Group 2012, 9; ILA Study Group 2016, 10. ILA Study Group 2012, 7–9. 19 In general on indeterminacy in international legal argument, M. Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Lakimiesliiton Kustannus 1989). 17 18

Courts

127

a picture emerges of how courts in the four states position themselves towards the treaties discussed here.

6. Consistent interpretation A long-standing interpretative principle governing the relationship of international and domestic law is the idea of consistent interpretation or harmonization.1 Domestic courts harmonize domestic rules with international obligations or decisions of international bodies by reading the domestic rules in light of international provisions.2 As Chief Justice Marshall of the US Supreme Court famously stated in the Charming Betsy case in 1804, ‘an act of Congress ought never to be construed to violate the laws of nations if any other possible construction remains’.3 This interpretative technique is not only firmly established in the US legal order,4 but is also recognized in Germany, India and South Africa under the headings of ‘international law-friendly interpretation’ and harmonization.5 One key objective behind this approach is to avoid conflicts between international, regional and domestic legal rules, in particular when decision-making bodies from different levels are involved.6 The interpretative technique has to be distinguished from a court’s direct application of a rule of international law in the national legal order.7 Despite its more indirect effect in

1 D. Hollis, ‘Treaties in the Supreme Court, 1861–1900’, in D. Sloss and M. Ramsey and W. Dodge (eds), International Law in the U.S. Supreme Court. Continuity and Change (CUP 2001), 51 (74). 2 Nollkaemper, National Courts, 139; ILA Study Group 2016, 11–12. 3 Murray v The Schooner Charming Betsy, 6 US 64, 118 (1804), 1 January 1804. 4 Restatement (Third), § 114; Restatement (Fourth), § 309 (1); on its potential see J. Hughes, ‘The Charming Betsy Canon, American Legal Doctrine, and the Global Rule of Law’, Vanderbilt Journal of Transnational Law (2020), 1147; for a reconception or limited understanding of the doctrine C. Bradley, ‘The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law’, Georgetown Law Journal 86 (1997), 479; R. Alford, ‘Foreign Relations as a Matter of Interpretation: The Use and Abuse of Charming Betsy’, Ohio State Law Journal 67 (2006), 1339. 5 See this chapter below. 6 For the importance of loyalty between the judges of different courts and avoidance of conflicts see H. Sauer, Jurisdiktionskonflikte in Mehrebenensystemen. Die Entwicklung eines Modells zur Lösung von Konflikten zwischen Gerichten unterschiedlicher Ebenen in vernetzten Rechtsordnungen (Springer 2008), 452–6. 7 Nollkaemper, National Courts, 140–1; on direct application, Chapter 7.

128

Consistent interpretation

129

the domestic order, consistent interpretation may lead to outcomes similar to the direct application of an international provision.8 Domestic courts apply the technique of consistent interpretation in various ways. In fact, it is often not easy to determine the ‘weight’ an international standard really had in the reasoning of domestic courts.9 At times, the international legal rules seem to inspire and guide the interpretation of domestic law and make a real difference in the case at hand.10 International law changes the interpretation of the substantive rules and leads to a different outcome.11 However, given that a case often rests on various legal arguments, it is rather unlikely that the application of international law triggers a completely different judicial decision.12 More often, courts refer to international legal rules to underline the relevance of a particular domestic rule or to confirm that a domestic decision is in line with international law.13 Rather than guiding the concrete application of domestic law, the reference is used to substantiate the ‘overall direction’ of the argument.14 While this affirmative reference to international law can be criticized as a mere ‘decorative’ or ‘symbolic’ addition to the reasoning based on domestic constitutional law and parliamentary legislation,15 domestic courts at least demonstrate that they are willing to take note of the international rules and integrate them into their decision-making. Also, in many cases, international legal rules and domestic provisions may indeed call for similar legal interpretations.16 This chapter assesses the uses of the notion of consistent interpretation in the four jurisdictions in relation to the treaties discussed here. It focuses not only

8 G. Betlem and A. Nollkaemper, ‘Giving Effect to Public International Law and European Community Law Before Domestic Courts: A Comparative Analysis of the Practice of Consistent Interpretation’, EJIL 14 (2003), 569 (572); J. d’Aspremont, ‘The Systemic Integration of International Law by Domestic Courts: Domestic Judges as Architects of the Consistency of the International Legal Order’, in O. Fauchald and A. Nollkaemper (eds), The Practice of International and National Courts and the (De-) Fragmentation of International Law (Hart 2012), 141 (144). 9 Nollkaemper, National Courts, 140. 10 See for instance the second preventive detention case before the German constitutional court: Federal Constitutional Court, 2 BvR 2365/09, 4 May 2011. 11 For soft law instruments see M. Kanetake, ‘Soft Law’, in A. Nollkaemper, A. Reinisch, R. Janik and F. Simlinger (eds), International Law in Domestic Courts: A Casebook (OUP 2018), 311 (317–18). 12 Nollkaemper, National Courts, 140. 13 Ibid, 140; Lixinski, ‘Municipal Law’, para. 22. 14 On soft law Kanetake, ‘Soft Law’, 347. 15 M. Krajewski, ‘Schmückendes Beiwerk oder echte Ergänzung? Zur Wirkung der Menschenrechte im innerstaatlichen Recht’, Zeitschrift für Menschenrechte 11 (2017), 8. 16 Tzanakopoulos, ‘Courts’, 143.

130

Treaties in parliaments and courts

on explicit uses of the notion of consistent interpretation but also on instances of de facto harmonization. Thereby, it attempts to also capture decisions harmonizing domestic law with international agreements without mentioning the use of consistent interpretation techniques.

6.1

INTERNATIONAL LAW-FRIENDLINESS IN GERMANY

6.1.1

Substantiating the Reasoning on Fundamental Rights

The Supreme Court of the German Reich decided that domestic legislation needs to be interpreted in light of the German Reich’s treaty obligations and that it may be assumed that the legislator did not intend to fall short of such obligations.17 After the adoption of UN human rights treaties in the 1960s, it took some time for courts to refer to the treaties in the context of constitutional interpretation.18 Despite early mentions of the international law-friendliness of the German Basic Law in the jurisprudence of the Constitutional Court,19 domestic courts often took the view that domestic law was generally in line with the ICCPR and the ICESCR, both of which Germany had ratified in 1973.20 However, at times, courts affirmatively cited treaty provisions to substantiate their reasoning when broadening individual protections. In 1965, the Constitutional Court emphasized that the UDHR and the European Convention on Human Rights (ECHR) codified the presumption of innocence.21 While the Basic Law did not explicitly mention the principle, the presumption of innocence would be integrated into German law through Article 6(2) of the ECHR.22 The Court concluded that, in light of the principle of proportionality

17 Supreme Court of the German Reich on Penal Matters (Reichsgericht in Strafsachen), RGSt 62, 369 (372–3), 23 November 1928; on this see G. Walz, Völkerrecht und staatliches Recht. Untersuchungen über die Einwirkungen des Völkerrechts auf das innerstaatliche Recht (Kohlhammer 1933), 392–4; G. Böhmer, Der völkerrechtliche Vertrag im deutschen Recht (Carl Heymanns 1965), 70–1. 18 B. Simma, D. Khan, M. Zöckler and R. Geiger, ‘The Role of German Courts in the Enforcement of International Human Rights’, in B. Conforti and F. Francioni (eds), Enforcing International Human Rights in Domestic Courts (Nijhoff 1997), 71 (107–8). 19 Federal Constitutional Court, 2 BvG 1/55, 26 March 1957, para. 224; Federal Constitutional Court, 1 BvR 93/64, 30 June 1964, para. 27. 20 See for instance Federal Administrative Court, II C 11.74, 26 March 1975; Federal Administrative Court, 1 C 29/81, 26 March 1982, para. 26; see also Federal Constitutional Court, 2 BvR 1226/83, 12 May 1987, para. 167. 21 Federal Constitutional Court, 1 BvR 513/65, 15 December 1965, paras 13, 15. 22 Ibid, para. 13.

Consistent interpretation

131

and the presumption of innocence, an arrest for a major crime must not automatically lead to pre-trial detention.23 In the early 1980s, the Constitutional Court stressed that the right to silence of the accused is codified in Article 14 of the ICCPR.24 The Court referred to the international provision to substantiate its statement that the principle of nemo tenetur se ipsum accusare is well recognized in German criminal procedural law.25 When defining the presumption of innocence in German law, the Constitutional Court characterized the jurisprudence of the European Court of Human Rights (ECtHR) as a ‘guide of interpretation for the determination of the content and scope of constitutional rights’.26 Accordingly, the Court cited ECtHR jurisprudence that concretized the guarantee of the presumption of innocence.27 Building on this case law, in 2021 the Constitutional Court referred a case back to a lower court since the court had not properly engaged with the right to a fair trial under Article 6 of the ECHR.28 Because of the limited content and scope of procedural fundamental rights in the Basic Law, the Court turned to the protections granted under the ICCPR and in ECtHR jurisprudence.29 More generally, German courts have accepted the relevance of the jurisprudence of certain international courts for constitutional interpretation.30 After conflicting interpretations of the right to privacy and right to information in the Caroline decisions had created tensions between the German Constitutional Court and the ECtHR,31 the Constitutional Court decided the 2004 Görgülü

Ibid, para. 25. Federal Constitutional Court, 1 BvR 116/77, 13 January 1981, para. 18. 25 Ibid, para. 18. 26 Federal Constitutional Court, 2 BvR 589/79, 26 March 1987, para. 35; J. Griebel, ‘Doppelstandards des Bundesverfassungsgerichts beim Schutz europäischer Grundrechte’, Der Staat 52 (2013), 371 (374–5). 27 Federal Constitutional Court, 2 BvR 589/79, 26 March 1987, para. 42. 28 Federal Constitutional Court, 2 BvR 1789/16, 9 December 2021. 29 For a different context see S. Martini, Vergleichende Verfassungsrechtsprechung. Praxis, Viabilität und Begründung rechtsvergleichender Argumente durch Verfassungsgericht (Duncker & Humblot 2018), 217. 30 In relation to EU law, the Constitutional Court and the ECJ delved into a controversy about the status of the jurisprudence of the ECJ in the domestic order from the 1960s to date; for key decisions see ECJ, Case 6/64 (Costa/ENEL), 15 July 1964; ECJ, Van Gend and Loos, Case 26/26, 5 February 1963, 13; Federal Constitutional Court, Solange II, 2 BvR 197/83, 22 October 1986; ECJ, Akerberg Fransson, C-617/10, 26 February 2013; Federal Constitutional Court, Antiterrordatei, 1 BvR 1215/07, 24 April 2013; Federal Constitutional Court, PSPP, 2 BvR 859/15, 5 May 2020. 31 C. Coors, ‘Headwind from Europe: The New Position of the German Courts on Personality Rights after the Judgment of the European Court of Human Rights’, German Law Journal 11 (2010), 527 (529–31); J. Rackow, ‘From Conflict to Cooperation: The Relationship between Karlsruhe and Strasbourg’, in K.S. Ziegler, E. Wicks and L. 23 24

132

Treaties in parliaments and courts

case, which became the benchmark for the status of decisions by international courts in the domestic order.32 The Court held that the ‘text of the Convention and the case law of the European Court of Human Rights serve, on the level of constitutional law, as guides to interpretation in determining the content and scope of fundamental rights and constitutional principles of the Basic Law’.33 Situating the international law-friendliness of the Basic Law in Articles 23, 24, 25, 26 and 59(2) of the Basic Law, the Court stressed that the Basic Law is, ‘if possible, to be interpreted in such a way that no conflict arises with duties of the Federal Republic of Germany under public international law’.34 More specifically, the Court held that administrative agencies and courts are under ‘a duty to take into account the guarantees of the Convention and the decisions of the ECHR as part of a methodologically justifiable interpretation of the law’.35 In the 2011 Preventive Detention case, the Constitutional Court built on the Görgülü reasoning to reverse its own judgment of 2004 that had declared the German preventive detention rules to be constitutionally valid.36 In response to a 2009 ECtHR decision,37 the Constitutional Court held the German preventive detention law to breach the fundamental right to liberty under Article 2(2) Sentence 2 in conjunction with Article 104 of the Basic Law.38 Adding to the Görgülü reasoning, the Court pointed to Article 1(2) of the Basic Law with its reliance on ‘inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world’. That provision would be the normative basis for the constitutional duty to consider ECtHR jurisprudence and a ‘maxim for the interpretation of the Basic Law’.39 Because the Court also dropped some of the sovereigntist Görgülü language,40 the decision is

Hodson (eds), The UK and European Human Rights: A Strained Relationship (Hart 2015), 379. 32 Federal Constitutional Court, 2 BvR 1481/04, 14 October 2004. 33 Ibid, para. 32. 34 Ibid, para. 33. 35 Ibid, para. 47. 36 Federal Constitutional Court, 2 BvR 2029/01, 5 February 2004. 37 According to the ECtHR, the German law violated Article 7(1) of the ECHR, European Court of Human Rights, Application no. 19359/04, 17 December 2009. 38 Federal Constitutional Court, 2 BvR 2365/09, 4 May 2011. 39 Ibid, para. 90. 40 Federal Constitutional Court, 2 BvR 1481/04, 14 October 2004, para. 35; on this see C. Tomuschat, ‘The Effects of the Judgments of the European Court of Human Rights according to the German Constitutional Court’, German Law Journal 11 (2010), 513 (520–6).

Consistent interpretation

133

regarded as a hallmark of the ECtHR’s influence on the domestic legal order.41 Domestic courts are obliged to consider the ECtHR’s jurisprudence.42 The Görgülü decision had repercussions for the role of UN human rights treaties and decisions by treaty bodies in constitutional interpretation. In 2012, the Constitutional Court held the provisions on social protection of asylum seekers to be ‘evidently insufficient’ when assessed in light of the right to the guarantee of a dignified minimum existence (Article 1(1) of the Basic Law) in conjunction with the principle of the social welfare state (Article 20(1) of the Basic Law).43 While the Court largely built its reasoning on the German constitution and German law, it also stressed that EU law and international obligations require the legislature to take protective measures for asylum seekers.44 In particular, the Court referred to the right to social security (Article 9 of the ICESCR), the right to take part in cultural life (Article 15 of the ICESCR), the best interests of the child (Article 3 of the CRC), the prohibition against disadvantaging children who seek refugee status (Article 22 (1) of the CRC) and the human right of children to education (Article 28 of the CRC).45 Even though the Court did not draw specific conclusions from these obligations, the Court cited the provisions to substantiate its proposition that stronger protections are required under German law.46 Similarly, in a decision on the compulsory medical treatment of persons with disabilities, the Constitutional Court referred to the Görgülü decision, stressing that the CRPD works as an ‘interpretation aid for the content and scope of fundamental rights’.47 In 2016, the Constitutional Court then expanded parts of the Görgülü reasoning to comments and recommendations of UN treaty bodies.48 The Constitutional Court held the state to be obligated to protect the life and health of a person under custodianship who does not have the capacity to understand the necessity of

41 B. Peters, ‘Germany’s Dialogue with Strasbourg: Extrapolating the Bundesverfassungsgericht’s Relationship with the European Court of Human Rights in the Preventive Detention Decision’, German Law Journal 13 (2012), 757 (772); C. Grabenwarter, ‘Die deutsche Sicherungsverwahrung als Treffpunkt grundrechtlicher Parallelwelten’, EuGRZ 2012, 507; on deviation from the ECtHR jurisprudence see however Federal Constitutional Court, 2 BvR 1738/12, 12 June 2018, para. 163. 42 On this, Krajewski, ‘Beiwerk’, 10. 43 Federal Constitutional Court, 1 BvL 10/10, 18 July 2012. 44 Ibid, para. 68. 45 Ibid, para. 68. 46 On the context, I. Winkler and C. Mahler, ‘Interpreting the Right to a Dignified Minimum Existence: A New Era in German Socio-Economic Rights Jurisprudence?’ Human Rights Law Review 13 (2013), 388. 47 Federal Constitutional Court, 2 BvR 882/09, 23 March 2011, para. 52. 48 Federal Constitutional Court, 1 BvL 8/15, 26 July 2016.

134

Treaties in parliaments and courts

a medical measure, even without the person’s consent to medical treatment.49 Because the CRPD Committee had indicated that the German system of guardianship for persons with disabilities with substituted decision-making violated the CRPD,50 the Court considered the normative weight of CRPD statements. The Court stressed that comments from the competent Committee on the interpretation of a human rights agreement ‘have significant weight, but they are not binding under international law for international or national courts’.51 Despite the fact that the Committee ‘has not been given the mandate to bindingly interpret the text of the Convention’, a domestic court should engage ‘in an argumentative way and in good faith’ with its opinions without being obliged ‘to endorse them’.52 The Court put forward that the Committee’s criticism of German guardianship law would be very broad and would not address the specific issue of coercive medical treatment of persons incapable of expressing free will.53 While reliance on the international sources did not lead to expanding protections of the individual in that case, the Court recognized that the CPRD may inform the understanding of fundamental rights and that domestic courts should take note of the treaty bodies’ decisions.54 6.1.2

Informing the Interpretation of Statutory Law

German courts often engage with the effects of the treaties discussed here on ordinary domestic law. This practice has been particularly strong in the field of international criminal law. In 2000, the Constitutional Court stressed that the content of the domestic provision on the crime of genocide has ‘to be determined in accordance with the elements of the crime of genocide as they exist in international law’.55 In its interpretation, the Court referred to the definitions contained in the Genocide Convention, the statutes of the ad hoc tribunals as

Ibid. Committee on the Rights of Persons with Disabilities, Concluding Observations on the Initial State Party’s Report of Germany, 13 May 2015, CRPD/C/DEU/CO/1, paras 25–6; see also General Comment No. 1 (2014), CRPD/C/GC/1, 19 May 2014. 51 Federal Constitutional Court, 1 BvL 8/15, 26 July 2016, para. 90. 52 Ibid, para. 90. 53 Ibid, para. 91. 54 As early as 1991, the Constitutional Court had cited a Human Rights Committee decision when arguing that criminal trials in absentia may be consistent with international law if the accused had been notified about the procedure, had fled and had been defended by an assigned counsel, Federal Constitutional Court, 2 BvR 1704/90, 24 January 1991, para. 6; on the international decision see Human Rights Committee, Mbenge v Zaire, Communication No. 16/1977, 25 March 1983, para. 14. 55 Federal Constitutional Court, 2 BvR 1290/99, 12 December 2000, para. 27. 49 50

Consistent interpretation

135

well as the Rome Statute.56 The Court emphasized that these treaties confirm the German penal courts’ holdings that systematic expulsions may be indicative of genocidal intent.57 Decisions of the ICTY and ICTR would validate the German courts’ interpretation of genocidal intent in such cases.58 Accordingly, the Court upheld a conviction of a Bosnian Serb to life imprisonment for genocide.59 More generally, the Constitutional Court held in 2006 that the duty to take into account international judgments also applies to the ICJ, the ad hoc tribunals and the ICC.60 The Constitutional Court held that by not considering relevant ICJ jurisprudence on Article 36(1)(b) of the Vienna Convention on Consular Relations (VCCR), the Federal Court of Justice had violated the right to fair procedure under Article 2(1) of the Basic Law in connection with the rule-of-law principle.61 After referring to the Görgülü decision,62 the Constitutional Court stressed that in light of the international law-friendliness of the Basic Law, German courts need to take note of and take into consideration pertinent international judicial decisions.63 In an obiter dictum, the Court emphasized that the permission to extradite German citizens to international criminal tribunals (Article 16(2) Sentence 2 of the Basic Law) would be the basis for the constitutional duty to take into account the decisions of international criminal courts when interpreting parliamentary legislation and fundamental rights.64 Since the 2010s, domestic criminal courts decided a new round of cases with implications for international criminal law. In December 2015, the Higher Regional Court Frankfurt/Main sentenced the mayor of a Rwandan municipality, Onesphore Rwabukombe, to life imprisonment for committing an act of genocide during the 1994 Rwanda genocide.65 Interpreting a provision on Ibid, para. 27. Ibid, paras 28–30. 58 Ibid, paras 31–3. 59 Ibid; for another decision see Federal Court of Justice, 3 StR 372/00, 21 February 2001, para. 14. 60 Federal Constitutional Court, 2 BvR 2115/01, 19 September 2006. 61 Ibid, para. 47; the Federal Court of Justice had decided that the failure to inform detained Turkish nationals about their right to notify the Turkish consulate under Article 36(1)(b) of the VCCR does not affect the domestic proceeding. 62 Ibid, para. 43. 63 Ibid, para. 54. 64 Ibid, paras 56–7. 65 OLG Frankfurt/Main, 4-3 StE 4/10-4-1/15, 29 December 2015; confirmed by Federal Court of Justice, 3 StR 160/16, 26 July 2016; for another case concerning the war crimes conviction of Ignace Murwanashyaka, leader of the Hutu rebel militia Forces Démocratiques de Libération du Rwanda, Federal Court of Justice, 3 StR 236/17, 20 December 2018. 56 57

136

Treaties in parliaments and courts

genocide of the German Penal Code (the CCAIL only entered into force in 2002),66 the Court cited ICTR decisions that classified the Tutsi as a protected group under the genocide provision.67 The Court also amply referred to ad hoc tribunal jurisprudence when deriving genocidal intent from the circumstances of the case,68 when highlighting that a perpetrator of genocide needs intent to kill the victims as part of a certain group, and when holding that additional other motives do not rule out genocidal intent.69 After the Syrian civil war brought refugees from Syria to Germany, among them witnesses as well as perpetrators of crimes, the Federal Court of Justice held that necrophilia could amount to a war crime under the CCAIL.70 The provision on the treatment of a person protected by humanitarian law in a gravely humiliating manner (§ 8(1) no. 9 of the CCAIL) would be applicable to deceased persons.71 As explicitly stated in a footnote on the ‘elements of crime’ adopted by the Assembly of States Parties, the similar provision of the Rome Statute would be applicable to deceased persons.72 Since the CCAIL was supposed to implement the Rome Statute,73 the German law needed to be construed in light of the Statute.74 The Court also pointed to the ad hoc tribunals’ jurisprudence that applied certain provisions of international criminal law to dead persons.75 The Rome Statute thus affects the interpretation of parliamentary legislation. Because the crimes codified in the CCAIL closely followed the definitions of the Rome Statute, German domestic courts engage with the treaty’s text. Moreover, by providing a model for the CCAIL, the Rome Statute made domestic trials against perpetrators of atrocity crimes more likely in the first

Ibid, para. 252. Ibid, para. 255. 68 Ibid, para. 225. 69 Ibid, para. 271; on the case see K. Ambos, ‘The German Rwabukombe Case: The Federal Court’s Interpretation of Co-Perpetration and the Genocidal Intent to Destroy’, Journal of International Criminal Justice 14 (2016), 1221. 70 Federal Court of Justice, 3 StR 57/17, 27 July 2017; on the context see W. Kaleck and P. Kroker, ‘Syrian Torture Investigations in Germany and Beyond: Breathing New Life into Universal Jurisdiction in Europe?’ Journal of International Criminal Justice 16 (2018), 165; C. Ritscher, ‘Aktuelle Entwicklungen in der Strafverfolgung des Generalbundesanwalts auf dem Gebiet des Völkerstrafrechts’, Zeitschrift für internationale Strafrechtsdogmatik 12 (2018), 543; F. Tiemann, ‘Die Rechtsprechung des Bundesgerichtshofs zum Völkerstrafgesetzbuch’, Zeitschrift für internationale Strafrechtsdogmatik 12 (2019), 553. 71 Federal Court of Justice, 3 StR 57/17, 27 July 2017, para. 20. 72 Ibid, para. 20; see Article 8 II(b)(xxi) and (c)(ii) of the Rome Statute. 73 Ibid, para. 19. 74 Ibid, para. 20. 75 Ibid, para. 27. 66 67

Consistent interpretation

137

place.76 For instance, in February 2021, a Higher Regional Court convicted a former member of the Syrian secret police to four and a half years in prison for aiding and abetting crimes against humanity (in particular torture and deprivation of liberty) on the basis of the CCAIL.77 In contrast, international climate change treaties were invoked less frequently in the jurisprudence of German courts.78 However, this changed when the German Constitutional Court decided its famous Klimabeschluss in March 2021.79 The Court relied on provisions of the Paris Agreement to concretize the constitutional standard for climate protection. The Court argued that the right to life and physical integrity (Article 2(2) Sentence 1 of the Basic Law) obliges the German state to take measures to limit global warming and to ‘keep the risks posed by the actual impacts of climate change to levels that are tolerable under constitutional law’.80 In this context, the Court referred to Article 2(1)(a) and (b) of the Paris Agreement as evidence for the relevance of such targets and adaptation measures.81 According to the Court, the legislature had generally fulfilled its duty of protection by adopting the Federal German Climate Change Act.82 In particular, the Bundestag had plausibly based the Act on the Paris temperature target.83 As long as this target was adhered to and as long as the path of reduction were continued, ‘it is not evident from today’s perspective that the level of health protection required under constitutional law would not be achievable at least with supplementary adaptation measures’.84 Nonetheless, the Court recognized a violation of the Basic Law since the Federal Climate Change Act did not provide a sufficiently plausible reduction path.85 In this context, the Paris Agreement was relied upon for the concretization of Article 20a of the Basic Law. Section 1 of the Federal Climate Protection Act refers to the Paris Agreement as its basis. The temperature

76 Du Plessis, ‘Future’; A.-M. Slaughter and W. Burke-White, ‘The Future of International Law Is Domestic (or, The European Way of Law)’, Harvard Journal of International Law 47 (2006), 327. 77 Higher Regional Court of Rhineland-Palatine, Press Release, 1 StE 3/21, 24 February 2021, https://​olgko​.justiz​.rlp​.de/​de/​startseite/​detail/​news/​News/​detail/​ urteil​-gegen​-einen​-mutmasslichen​-mitarbeiter​-des​-syrischen​-geheimdienstes​-wegen​ -beihilfe​-zu​-einem​-ver/​. 78 For an example see Administrative Court Berlin, 1 A 417.08, 14 May 2009; see also Administrative Court Berlin, 1 K 275.09, 3 June 2010. 79 Federal Constitutional Court, 1 BvR 2656/18, 24 March 2021. 80 Ibid, paras 149–50. 81 Ibid, paras 149­–50. 82 Ibid, para. 157. 83 Ibid, para. 163. 84 Ibid, para. 167. 85 Ibid, para. 257.

Treaties in parliaments and courts

138

threshold selected in the Act would therefore ‘not merely [be] an expression of what is currently intended politically’, but should also be understood as a concretization of the constitutionally required level of climate protection.86 The Court held: By adopting the temperature limit of Art. 2(1)(a) PA, the legislator has set the fundamental course of national climate change law in a direction that gives the German state an opportunity to effectively fulfil its constitutional mandate to take climate action through its own efforts embedded within an international framework.87

Thus, without explicitly relying on the idea of Völkerrechtsfreundlichkeit, the Court engaged with provisions of the Paris Agreement when assessing the standard of climate protection under the Basic Law.

6.2

BROADENING THE SCOPE OF FUNDAMENTAL RIGHTS IN INDIA

The harmonization of domestic provisions with human rights law has become a key theme of Indian jurisprudence since the 1970s.88 The dissent in the infamous 1976 Habeas Corpus case was partly based on consistent interpretation of international instruments.89 The four majority justices held that the President of India, acting on the advice of Prime Minister Indira Gandhi, rightfully suspended habeas corpus rights guaranteed under Article 21 of the constitution during the state of emergency since 1975.90 In his dissent, Justice Khanna stressed that ‘[e]very statute […] is interpreted, so far as language permits, so as not to be inconsistent with […] the established rules of international law’.91 After pointing to Article 51 of the constitution, according to which the state shall ‘foster respect for international law and treaty obligations’, he emphasized that Articles 8 and 9 of the UDHR guaranteed an effective remedy against fundamental rights violations and prohibited arbitrary detention.92 Ibid, para. 210. Ibid, para. 210. 88 In its early case law, the Indian Supreme Court mentioned international law mostly in the context of territorial or boundary issues: Hegde, ‘Courts’, 62–7; A.M. Smith, ‘Making Itself at Home: Understanding Foreign Law in Domestic Jurisprudence – The Indian Case’, Berkeley Journal of International Law 24 (2006), 218. 89 Additional District Magistrate, Jabalpur v Shivakant Shukla, 1976 AIR 1207, 1976, SCR 172, 28 April 1976; on the context see G. Austin, Working a Democratic Constitution: The Indian Experience (OUP 1999), 334–43. 90 Additional District Magistrate, Jabalpur v Shivakant Shukla, 1976 AIR 1207, 1976, SCR 172, 28 April 1976. 91 Ibid. 92 Ibid. 86 87

Consistent interpretation

139

Read in that light, the presidential order had to be understood as not allowing arbitrary detentions and the suspension of habeas corpus rights.93 While the minority view treated the non-binding UNDR as binding international law, its application of the consistent interpretation principle became a model for future decisions. In the 1980 Jolly George Verghese case, the Supreme Court held that an impoverished creditor could not be jailed for not being able to pay his debts, reading a provision of the ICCPR into the Indian constitution.94 The decision was based on Article 11 of the ICCPR, which contains the prohibition to be imprisoned ‘merely on the ground of inability to fulfil a contractual obligation’. Justice Krishna Iyer stated for the Court that municipal law has primacy as long as the international treaty is not transformed into the domestic setting.95 However, if room for interpretation exists, the domestic provision needs to be interpreted in line with the international obligations.96 Justice Krishna Iyer stressed that under India’s obligation to ‘foster respect for international law and treaty obligations’ (Article 51(c) of the Indian constitution), Article 21 of the constitution protecting the liberty of the individual had to be understood in light of Article 11 of the ICCPR.97 This would mean that the provision of municipal law had to be interpreted as not applicable to impoverished creditors.98 The interpretive principle of harmonious or consistent interpretation played a key role in fusing international human rights law and domestic law. The Court expanded the scope of consistent interpretation by using it to enlarge the content and scope of constitutional protections, whereas the interpretative technique in its Charming Betsy version is understood to apply to domestic statutory law only.99 As in the jurisprudence of German courts, Indian courts referred to international legal obligations to affirm that the international legal rules did not afford wider protections than domestic law. In Bacchan Singh v State of Punjab, a Constitution Bench of the Supreme Court decided that capital punishment applies only in ‘the rarest or rare cases when the alternative option is unquestionably foreclosed’, but remains possible.100 After noting that most Ibid. Jolly George Verghese & Anr v The Bank of Cochin, 4 February 1980; 1980 AIR 470, 1980 SCR (2) 913. 95 Ibid. 96 Ibid. 97 Ibid. 98 Ibid. 99 On the use of international law for constitutional interpretation in India, K. Gautam, ‘The Use of International Law in Constitutional Interpretation in the Supreme Court of India’, Stanford Journal of International Law 55 (2019), 27. 100 See generally Jayawickrama, ‘India’, 247. Bacchan Singh v State of Punjab (1980) (2 SCC 684), 9 May 1980, para. 209. 93 94

140

Treaties in parliaments and courts

states that ratified the ICCPR still used the death penalty, the Court highlighted that India’s ratification does not affect the constitutional validity of the death penalty because the ICCPR ‘does not outlaw capital punishment for murder, altogether’.101 Often, however, the Supreme Court applied the consistent interpretation reasoning to protect the rights of individuals. In the 1996 People’s Union for Civil Liberties v Union of India case concerning telephone tapping by the authorities, the Supreme Court held that Article 21 of the constitution has to be understood to include the right to privacy even though the Article does not explicitly say so.102 This understanding was partly based on an interpretation of domestic law but also on an internationalized reading of the constitutional provision. Against the background of Article 51(c) of the Indian constitution, the Court noted that the fundamental rights enshrined in Article 21 of the constitution had to be understood in conformity with the right to privacy provision in Article 17 of the ICCPR.103 On this basis, the Court narrowly circumscribed the legal validity of telephone tapping.104 Soon other human rights treaties started to matter in the domestic jurisprudence. In Apparel Export Promotion Council v Chopra, the Court put forward that CEDAW and the ICESCR ‘cast an obligation on the Indian state to gender sensitise its laws’ when holding that an attempt to sexually molest an employee falls under the definition of sexual harassment.105 The Court stressed that Indian courts would be obliged ‘to see that the message of the international instruments is not allowed to be drowned’.106 The Court maintained that when human rights are involved, ‘the Courts must forever remain alive to the international instruments and conventions’.107 In the 2016 Jeeja Ghosh v Union of India case, the Court referred to the CRPD when holding that deboarding a person from an airplane only because of her cerebral palsy violated her human dignity as protected by the Indian constitution.108 The Court cited the non-discrimination provision (Article 5 of the CRPD) and the access to transportation provision (Article 9 of the CRPD) stressing that the state of India had to take measures to protect persons with disabilities in the context of private

Ibid, para. 140. People’s Union for Civil Liberties v Union of India, 18 December 1996, para. 18. 103 Ibid, paras 24–5. 104 Ibid, para. 35. 105 Apparel Export Promotion Council v A. K. Chopra, 1999 A.I.R. 625, 627 (1999), 20 January 1999. 106 Ibid. 107 Ibid; on the case see Mehra, ‘CEDAW’, 388–9. 108 Jeeja Ghosh & Anr v Union Of India & Ors, Writ Petition (C) No. 98 of 2012, 12 May 2016. 101 102

Consistent interpretation

141

relationships.109 The Court concluded that the applicant’s human dignity as protected under Article 21 of the constitution had been violated.110 Once more, the Court construed the constitution in light of an UN human rights treaties. Indian courts also frequently refer to UN treaty bodies’ views to justify their interpretations of the Indian constitution.111 For instance, in the 2019 Maken v Union of India case, the High Court of Delhi declared forced evictions of slum dwellers for the reason of creating space for a local railroad company to violate domestic and international law.112 The right to adequate housing under Article 11 of the ICESCR had to be understood in light of General Comment No. 7 on the right to adequate housing and forced evictions.113 Against this background, the right to shelter as developed by the Indian Supreme Court needed to be construed broadly to include the right to livelihood, right to health, right to education and right to food.114 Even though the Court did not explain the normative status of General Comments in the Indian legal order, the Committee’s views were integrated into the reasoning on social rights. Apart from social rights, treaty body comments and decisions were cited to substantiate widening protections of the individual in civil and political rights cases. In the 2018 case of Justice K.S. Puttaswamy v Union of India, the Supreme Court declared the right to privacy to be ‘protected as an intrinsic part of the right to life and personal liberty under Article 21’ of the constitution when deciding on the use of biometrics to identify individuals.115 Overturning precedent that rejected the existence of such a right, the Court stressed India’s commitments under international law.116 After pointing to the obligation to foster respect for international law and treaty obligations (Article 51(c) of the constitution), the Court cited the right to privacy provisions under the UDHR, the ICCPR and the Human Rights Committee’s General Comment No. 16 on the right to privacy.117 Furthermore, under the heading of ‘comparative law’,

Ibid. For a critique of the Court’s reference to Article 27 VCLT in this context see P. Ranjan, A. Ahmad and F. Ahmad, ‘Is the Supreme Court Confused about the Application of International Law’, The Wire, 28 June 2016, https://​thewire​.in/​law/​ supreme​-court​-international​-law. 111 See High Court of Delhi, Laxmi Mandal v Deen Dayal Harinagar Hospital & Ors, WP(C) Nos 8853 of 2008, and 10700 of 2009 (2010), 4 June 2010; High Court of Delhi, Sudama Singh v Govt. of Delhi, 11 February 2012. 112 Maken v Union of India, W.P.(c) 11616/2015, 18 March 2019. 113 Ibid, paras 56–68. 114 Ibid, para. 141. 115 Justice K.S. Puttaswamy v Union of India, Writ Petition (Civil) No.494 of 2012, 26 September 2018. 116 Ibid, para. 129. 117 Ibid, paras 129–30. 109 110

142

Treaties in parliaments and courts

the Court assessed various data protection cases not only before national courts but also before the ECtHR, the European Court of Justice (ECJ) and the Inter-American Court of Human Rights (IACtHR).118 The majority judgment stressed that ‘[d]espite cultural differences and disparate histories, a study of comparative law provides reassurance that the path which we have charted accords with a uniform respect for human values in the constitutional culture of the jurisdictions which we have analyzed. These values are universal and of enduring character.’119 On this basis, the Court concluded that right to privacy is a constitutionally protected right.120 Building on this argument, the Supreme Court struck down the criminalization of homosexual conduct in Section 377 of the Indian Penal Code in Navtej Singh Johar & Ors. v Union of India thr. Secretary Ministry of Law and Justice partly with reference to treaties.121 Chief Justice Dipak Misra stressed that the right of privacy is protected in Article 12 of the UDHR and Article 17 of the ICCPR and cited among other cases the ECtHR’s Dudgeon v United Kingdom and the Human Rights Committee’s Toonen’s case as evidence for a trend towards decriminalization.122 Moreover, concurring justices also delved into comparative law, the ECtHR jurisprudence and Human Rights Committee reasonings.123 For instance, Justice Chandrachud pointed to India’s obligations under international human rights treaties, referred to the prominent place of international law in the Indian constitutional order (Article 51(c) of the constitution), and highlighted India’s ‘constitutional duty to honour […] internationally recognized rules and principles’ such as the non-discrimination and right to privacy provisions in Article 2 of the ICESCR, Article 17 and 26 of the ICCPR and Article 12 of the UDHR.124 The international legal provisions and decisions were used to substantiate the reasoning of the Court by comparatively pointing to similar solutions found by foreign and international bodies.

Ibid, pp.180–93. Ibid, p.193. 120 Ibid, p.260. 121 For the earlier decision upholding the law see Suresh Kumar Koushal & Anr v Naz Foundation & Ors, Civil Appeal No. 10972 of 2013, 11 December 2013; on this Chapter 9.1. 122 Navtej Singh Johar & Ors. v Union of India thr. Secretary Ministry of Law and Justice, Writ Petition (Criminal) No. 76 of 2016, 6 September 2018, paras 150–2; 153, 203–4. 123 Ibid, Concurring opinion Nariman, paras 37, 42; Concurring opinion Chandrachud, Part J, para. 106; Concurring opinion Malhotra 15.1; 16.3. 124 Ibid, Concurring opinion Chandrachud, paras 98–9. 118 119

Consistent interpretation

143

While Indian courts have long played a rather minimal role in the context of climate change,125 more recently a few judgments have grappled with the international standards.126 In 2009, the Delhi High Court directed an executive expert committee to re-examine its confirmation of a permit for a coal base thermal station in light of the principle of sustainable development.127 The bench emphasized that, according to the UNFCCC, parties are obliged to ‘take precautionary measures to anticipate, prevent or minimize the causes of climate change and mitigate its adverse effects’.128 This principle would make it ‘mandatory for the Government to not only anticipate and prevent but also attack the causes of environment degradation’.129 Even though the Court did not rely on the notion of consistent interpretation explicitly, it referred to the obligations under the UNFCCC to call for a stricter environmental assessment of the competent authorities. In 2014, the National Green Tribunal (NGT) ordered the government to take immediate action to address the pollution crisis at the Rohtang Pass in the Himalayas.130 In line with previous case law, the NGT stressed that Article 21 of the Indian constitution on the right to life had to be construed to provide for a fundamental right to a ‘wholesome, clean and decent environment’.131 More specifically, the Tribunal emphasized the ‘need to tackle global warming’ referring to a COP declaration by the parties to the UNFCCC on the ‘grim’ effects of global warming.132 This would highlight the necessity to ‘take greater care of the glacier [at the Rohtang Pass] in the interest of environmental and ecological balance’.133 The Tribunal ordered the government of Himachal Pradesh to regulate vehicle traffic in the region, install eco-friendly public amenities and devise a programme for reforestation.134 The notion of consistent interpretation was not explicitly applied, 125 See Sadat, ‘Practice’, 101; on the connection of the courts’ environmental jurisprudence to international law see Smith, ‘Foreign Law’, 218. 126 E. Chaturvedi, ‘Climate Change Litigation: Indian Perspective’, German Law Journal 22 (2021), 1459. 127 Balachandra Bhikaji Nalwade v Union of India, 170 (2009) DLT 251. 128 Ibid, para. 25. 129 Ibid, para. 26. 130 National Green Tribunal, Application No. 237 (THC)/2013 (CWPIL No. 15 of 2010), 6 February 2014; since 2010, the NGT has had jurisdiction over civil cases concerning a substantial question relating to environmental issues in the context of Indian environmental legislation and has had the power to initiate cases and order broad remedies: The Gazette of India, National Green Tribunal Act 2010, No. 19 of 2010, 2 June 2010. 131 National Green Tribunal, Application No. 237 (THC)/2013 (CWPIL No. 15 of 2010), 6 February 2014, para. 11. 132 Ibid, para. 31. 133 Ibid, para. 33. 134 Ibid, paras 23, 26, 30, 38.

144

Treaties in parliaments and courts

but the Tribunal referred to decisions adopted under the UNFCCC regime to stress the weight of environmental concerns in the case at hand. However, in other climate litigation cases, international legal rules did not play a major role.135 When the young Indian Ridhima Pandey argued that India had failed to integrate its commitments under the Paris Agreement into national law,136 the NGT dismissed the case in 2019. There would be ‘no reason to presume that the Paris Agreement and other international protocols are not reflected’ in the Indian environmental policies.137 In an exceptional case, an Indian court engaged with international criminal law. In 2018, the High Court of New Delhi referred to the Rome Statute when reversing the acquittal of a former Congress leader for his role in the communal riots against Sikhs after Indira Gandhi’s assassination in 1984.138 According to the Court, enough evidence existed to establish that the accused had been involved in a criminal conspiracy against the Sikhs.139 The Court stressed in an obiter dictum that the mass murder of the Sikhs between 1 November and 4 November 1984 fell under the definition of crimes against humanity.140 Pointing to the history of international criminal law, the Court emphasized that the Nuremberg Charter, the statutes of the ICTY and ICTR, and the Rome Statute contained definitions of such crimes.141 In the view of the Court, the ‘loophole’ that crimes against humanity and genocide were not part of domestic criminal law had to be ‘addressed urgently’.142 While the High Court did not directly integrate the international provisions in its domestic law, it turned to international law as a further argument for taking prosecutorial action in the case at hand. Nonetheless, most jurisprudence in relation to the treaties examined in this study concerns broadening the scope of fundamental rights under the Indian constitution.

Gaurav Kumar Bansal v Union of India & Others. See Pandey v Union of India, Original Application filed in March 2017 by the plaintiff, http://​climatecasechart​.com/​non​-us​-case/​pandey​-v​-india/​. 137 NGT, Original Application No. 187/2017, 15 January 2019; the case was appealed to the Supreme Court, see Chaturvedi, ‘Litigation’, 1469. 138 Delhi High Court, State Through Cbi v Sajjan Kumar & Ors, Crl.A: 1099/2013, 17 December 2018. 139 Ibid, paras 300–7. 140 Ibid, para. 367.1. 141 Ibid, paras 367.2–367.4. 142 Ibid, para. 367.6. 135 136

Consistent interpretation

6.3

AIDS OF INTERPRETATION IN SOUTH AFRICA

6.3.1

Comparative Human Rights Jurisprudence

145

During the apartheid era, international law in general and human rights law in particular were marginalized in South African courts.143 Courts often did not touch upon the politically sensitive issue of human rights violations because the judiciary did not mean to challenge the apartheid system.144 Post-apartheid, the treaties discussed here started to play a crucial role in the jurisprudence of the newly established South African Constitutional Court.145 In its 1995 S v Makwanyane judgment, the first major judgment of Constitutional Court after the end of apartheid, the Court held the death penalty to be unconstitutional even though the constitutional drafters had not been able to agree on its abolition.146 Writing for the majority,147 Justice Chaskalson emphasized the relevance of international legal rules as ‘tools of interpretation’ for domestic law, in particular for the 1993 interim constitution.148 In his view, domestic courts should turn to foreign decisions ‘because they analyze arguments for and against the death sentence’ and because domestic courts are required to have ‘regard to public international law applicable to the protection of the rights entrenched’ in the constitution (Section 35(1) of the 1993 interim constitution).149 Justice Chaskalson emphasized that international conventions ‘provide a framework’ for analysing the Bill of Rights and highlighted the ‘guidance’ function of decisions by the UN Human Rights Committee, the Inter-American and European Commission on Human Rights and the IACtHR and ECtHR.150 Chaskalson stressed that even though the Court would not be bound by international law or foreign decisions, ‘[w]e can derive assis-

143 J. Dugard, ‘The South African Judiciary and International Law in the Apartheid Era’, South African Journal of Human Rights 14 (1998), 110 (113–25). 144 Ibid, 113–25. 145 For an overview see E. de Wet, ‘The Friendly but Cautious Reception of International Law in the Jurisprudence of the South African Constitutional Court: Some Critical Remarks’, Fordham International Law Journal 28 (2004), 1529; Tladi, ‘Interpretation’, 141; L. du Plessis, ‘International Law and the Evolution of (Domestic) Human-Rights Law in Post-1994 South Africa’, in J. Nijman and A. Nollkaemper (eds), New Perspectives on the Divide Between National and International Law (OUP 2007), 310. 146 S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3, 6 June 1995; Du Plessis, ‘Human-Rights Law’, 322. 147 All other ten justices attached concurring opinions. 148 S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3, 6 June 1995, para. 35. 149 Ibid, para. 34. 150 Ibid, para. 35.

146

Treaties in parliaments and courts

tance’ from it.151 Turning to ‘Comparative “bill of rights” jurisprudence’,152 Chaskalson referred to the Human Rights Committee’s Kinderl and Ng cases in which the Committee held that the imposition of capital punishment is not prohibited under the ICCPR but dismissed certain methods of execution as constituting cruel and inhuman treatment within the meaning of Article 7 of the ICCPR.153 While the Human Rights Committee and other judgments by highest courts did not treat the death penalty as a violation of international law per se, they pointed to limits to the death penalty from a human rights perspective. The South African Constitutional Court then went further, concluding that the death penalty violates the constitutional framework of South Africa.154 The Court’s reasoning set the tone for further engagement. In National Coalition for Gay and Lesbian Equality v Minister of Justice, the Constitutional Court held that statutes and the common law prohibiting consensual sexual activities between men violated the Bill of Rights’ prohibition of discrimination based on sexual orientation and the rights to dignity and to privacy.155 Writing for the majority, Justice Ackermann referred to Toonen v Australia, decided by the Human Rights Committee, as well as decisions by national courts and the ECtHR as evidence for a trend towards decriminalization of same-sex relations.156 Given that the Human Rights Committee had found violations of the right to privacy under the ICCPR,157 the South African Constitutional Court came to a similar conclusion in its interpretation of the South African Bill of Rights. UN human rights treaties also played a role in the absence of decision by international bodies on the matter. In S v Baloyi and Others, the Court referred to CEDAW and the obligation of consistent interpretation under Section 233 of the Constitution to highlight the necessity to take effective measures Ibid, para. 39. Ibid, para. 37; for the similarities and differences in the treatment of international and foreign law see C. Rautenbach, ‘South Africa: Teaching an “Old Dog” New Tricks? An Empirical Study of the Use of Foreign Precedents by the South African Constitutional Court (1995–2010)’, in T. Groppi and M. Ponthoreau (eds), The Use of Foreign Precedents by Constitutional Court Judges (Hart 2013), 185 (185–7). 153 S v Makwanyane and Another, paras 63–7; see United Nations Committee on Human Rights, Kindler v Canada, Communication No 470/1991, 30 July 1993; ibid, Ng v Canada, Communication No 469/1991, 5 November 1993. 154 S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3, 6 June 1995. 155 National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others (CCT11/98) [1998] ZACC 15, 1999 (1) SA 6; 1998 (12) BCLR 1517, 9 October 1998; for another case engaging with ECtHR jurisprudence see S v Williams, 1995 (3) SALR 632 (CC), 9 June 1995. 156 Ibid, paras 39–52. 157 United Nations Committee on Human Rights, Toonen v Australia, Communication No. 488/1992, 5 December 1992. 151 152

Consistent interpretation

147

against domestic violence against women.158 In Christian Education South Africa v Minister of Education, the Court cited the CRC when holding that the prohibition of corporal punishment of school children in South African domestic law did not violate the religious freedom of parents who consented to such treatment.159 In the 2018 Ruta v Minister of Home Affairs decision, the Constitutional Court decided that a Rwandan national was permitted to apply for asylum even though his application was delayed and he had committed a crime in South Africa.160 The Court referred to the grounding of the right to asylum and the principle of non-refoulement in the UDHR, the Refugee Convention, customary international law and various UN and regional human rights treaties such as the ICCPR and CAT.161 The Court stressed that reference to international law ‘is not internationalist blurb’ but ‘applies directly to the problem at hand’.162 Treaty bodies’ comments played a particular role in social rights jurisprudence. In the 2000 Government of South Africa v Grootboom case, the Constitutional Court cited General Comment No. 3 to the ICESCR when determining the meaning of ‘progressive realization’ of the right to adequate housing under Section 26 of the constitution.163 After referring to Section 39(1) (b) of the constitution, the Court stressed that the ICESCR Committee’s interpretation of Article 2(1) of the ICESCR in General Comment No. 3 is ‘helpful in plumbing the meaning of “progressive realisation” in the context of our Constitution’ because the constitutional language stemmed from the said provision of the ICESCR.164 Similarly, in the 2004 Jaftha v Schoeman decision, the Court relied on General Comment No. 4 on adequate housing to strengthen its arguments on the scope and content of the right to adequate housing under the South African constitution.165 In other cases, South African courts referred 158 S v Baloyi (CCT29/99) [1999] ZACC 19, 3 December 1999, paras 24–33; Du Plessis, ‘Human-Rights Law’, 336. 159 Christian Education South Africa v Minister of Education (CCT4/00) [2000] ZACC 11, 18 August 2000; for a case of a lower court see Western Cape Forum for Intellectual Disability v Government of South Africa and Government of the Province of the Western Cape (joining), Final judgment, Case no 18678/2007, ILDC 1847 (ZA 2010), 11 November 2010, paras 20, 23. 160 Ruta v Minister of Home Affairs (CCT02/18) [2018] ZACC 52; 2019 (3) BCLR 383 (CC); 2019 (2) SA 329 (CC), 20 December 2018. 161 Ibid, paras 25–6. 162 Ibid, para. 31. 163 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), 2000 (11) BCLR 1169 (CC), 4 October 2000; on cases of deviation from the Committee see however Chapter 9.2. 164 Ibid, para. 45. 165 Jaftha v Schoeman; Van Rooyen v Stoltz (2004) CCT74/03, [2004] ZACC 25, 2005 (2) SA 140 (CC), 8 October 2004.

148

Treaties in parliaments and courts

to General Comment No. 15 on the right to water, General Comment No. 13 on the right to education and General Comment No. 7 on forced evictions to substantiate their reasoning about the importance of the right to water, education and adequate housing under the South African constitution.166 In its 2022 Centre for Child Law v Director of Public Prosecutions decision, the Constitutional Court heavily relied on General Comments of the UN Committee on the Rights of the Child.167 After reproducing the Committee’s interpretation of the ‘best interests of the child’ standard in detail,168 the Constitutional Court cited to General Comment No. 14, which highlights that ‘traditional objectives of criminal justice, such as repression or retribution, must give way to rehabilitation […] when dealing with child offenders’.169 On this basis, the Constitutional Court confirmed that criminalization of the use and possession of cannabis by a child was unconstitutional.170 All in all, treaty body decisions had a strong impact on the social rights jurisprudence of South African courts. 6.3.2

Informing the Interpretation of Statutory Law

Besides human rights law, international criminal law affected the interpretation of domestic law. In 2005 the Constitutional Court based its reversal of the acquittal of Wouter Basson, the head of apartheid South Africa’s chemical and biological warfare programme, partly on the normative force of international obligations in the domestic order.171 The Court stressed that the lower courts failed to take South Africa’s former and current international legal obligations

166 High Court of South Africa (Gauteng), Mazibuko v City of Johannesburg [2008] ZAGPHC 128, 30 April 2008, paras 36, 37, 124; Constitutional Court, Governing Body of the Juma Musjid Primary School et al v Essay NO et al, Case CCT 29/10 [2011] ZACC 13, 11 April 2011, para. 41; Motswagae and Others v Rustenburg Local Municipality and Another (CCT 42/12) [2013] ZACC 1; 2013 (3) BCLR 271 (CC); 2013 (2) SA 613 (CC), 7 February 2013, fn 6. 167 Centre for Child Law v Director of Public Prosecutions, Johannesburg and Others (CCT210/21) [2022] ZACC 35; 2022 (12) BCLR 1440 (CC); 2022 (2) SACR 629 (CC), 29 September 2022. 168 Ibid, 44–6. 169 Ibid, 47. 170 Ibid. 171 S v Basson (CCT30/03A) [2005] ZACC 10; 2005 (12) BCLR 1192 (CC); 2007 (3) SA 582 (CC) (9 September 2005); on the context see M. Swart, ‘The Wouter Basson Prosecution: The Closest South Africa Came to Nuremberg?’ ZaöRV 68 (2008), 209; A. Raleigh, ‘Charging Decisions, Legal Framing and Transitional Justice: The Prosecution of Wouter Basson’, South African Journal on Human Rights 35 (2019), 194.

Consistent interpretation

149

into account when dismissing the charges for crimes committed in Namibia.172 While pointing to South Africa’s obligations under the Geneva Conventions during apartheid, the Court praised the establishment of the ICC as ‘the culmination of a centuries-old process of developing international humanitarian law’.173 This would not, however, relieve national courts of their responsibility to try cases concerning war crimes.174 The Court referred to the Tadić decision of the ICTY as evidence for ‘the broadness of the sweep of international humanitarian law over past decades’.175 Because the alleged crimes ‘grossly transgressed even the most minimal standards of international humanitarian law’,176 the lower courts should have engaged with the question of potential war crimes before dismissing the charges.177 Even though the case did not directly employ the Rome Statute to interpret parliamentary legislation but rather based its reasoning on the applicability of the Geneva Conventions to apartheid South Africa,178 the emerging international criminal law was used to substantiate the reasoning.179 In 2014, in National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre, the Constitutional Court relied on CAT and the Rome Statute to call upon South African authorities to exercise universal jurisdiction with respect to crimes committed in Zimbabwe.180 The decision concerned the detainment and alleged torture of more than 100 members of the opposition by the Zimbabwean police.181 The National Director of Public Prosecution suggested that that the evidence for investigations by South African authorities was insufficient despite various compromising sworn witness statements.182 The Constitutional Court held that South African authorities have a duty to exercise universal jurisdiction over the alleged crime of torture as a crime against humanity under custom-

172 S v Basson (CCT30/03A) [2005] ZACC 10; 2005 (12) BCLR 1192 (CC); 2007 (3) SA 582 (CC), 9 September 2005, para. 171. 173 Ibid, para. 172. 174 Ibid, para. 172. 175 Ibid, para. 175. 176 Ibid, para. 179. 177 Ibid, paras 184 and 227–8. 178 Ibid, paras 177–84; 229. 179 In the end, however, the National Prosecuting Authority did not institute proceedings because the state feared that this might violate the double jeopardy clause: W. Ferdinandusse, ‘The Prosecution of Grave Breaches in National Courts’, Journal of International Criminal Justice 7 (2009), 723 (733). 180 National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre 2014 (12) BCLR 1428 (CC), 30 October 2014. 181 Ibid, para. 9. 182 Ibid, para. 15.

150

Treaties in parliaments and courts

ary and treaty law.183 Even though the Court noted that the Rome Statute does not provide for the exercise of universal jurisdiction by the ICC,184 the Constitutional Court pointed to the preamble of the Statute referring to the ‘duty of every state to exercise its criminal jurisdiction over those responsible for international crimes’.185 The Court emphasized that CAT obliges its parties to prosecute torture, an obligation that had been implemented in the domestic Torture Act and ICC Act.186 Thus, in light of Section 233 of the constitution, South Africa would be obliged to exercise universal jurisdiction in relation to atrocious crimes.187 This would entail a duty to investigate the allegations of torture under domestic law.188 The Court thus opted for a rather extensive reading of the implementing act to the Rome Statute, which does not require a domestic nexus as a precondition for investigations into the crime of torture committed in foreign countries.189 The principle of consistent interpretation also played a role in a South African case concerning climate protection. In the Thabametsi case, the South African High Court held in March 2017 that an environmental impact assessment needed to address the impact on climate change before authorizing a coal-fired power plant.190 In response to a case brought by the NGO Earthlife Africa Johannesburg, the High Court stressed that South Africa’s international climate change obligations do not prohibit the erection of coal plants, at least not ‘in the immediate term’.191 In particular, South Africa’s NDC under the Paris Agreement ‘expressly anticipates the establishment of further coal-fired power stations and an increased carbon emission rate until 2020 and records that climate change action takes place in a context where poverty alleviation is prioritised, and South Africa’s energy challenges and reliance on coal are acknowledged’.192 However, a plain reading of the National Environmental Management Act already obliges the competent authority to ‘take into account

Ibid. Ibid, para. 27. 185 Ibid, para. 31. 186 Ibid, paras 38–9. 187 Ibid, para. 40. 188 Ibid, paras 55–60. 189 On this J. Gathii, ‘National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre’, AJIL 110 (2016), 333 (337); D. Tladi and M. Bradley, ‘National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre and Another 2015 (1) SA 315 (CC)’, 137 (143). 190 Earthlife Africa v Minister of Environmental Affairs, High Court of South Africa, 65662/16, 8 March 2017 (Thabametsi Case). 191 Ibid, para. 35. 192 Ibid, para. 35. 183 184

Consistent interpretation

151

all relevant factors, which may include any pollution, environmental impacts or environmental degradation’, including climate change impacts.193 Turning to the impact of international agreements, the Court highlighted that according to Section 233 of the constitution domestic legislation must be interpreted consistent with international law.194 The Court specifically referred to Article 3(3) UNFCCC codifying the precautionary principle and Article 4(1)f of the UNFCCC obliging states to take climate change considerations into account in their domestic policies.195 Moreover, the Court highlighted that a ‘climate change impact assessment is necessary and relevant to ensuring that the proposed coal-fired power stations fits South Africa’s peak, plateau and decline trajectory as outlined in the NDC and its commitment to build cleaner and more efficient than existing power stations’.196 Because the government had not fulfilled this obligation, the minister of environment was ordered to reconsider the authorization based on climate change impacts.197 Even though the administration decided to confirm the authorization of the power plant after reconsideration,198 the evaluation of a project’s impact on climate change is now a precondition for permits for larger infrastructure projects.199 6.3.3

Protection of International Institutions

In exceptional cases, domestic court decisions have strong repercussions for the international system – far beyond compliance with an international provision in the individual case. Even though domestic courts always solve cases based on domestic law, their decisions at times strongly affect the institutions set up by the treaties addressed here. Such cases emerged in the context of the Ibid, para. 78; see Section 24 O of the NEMA. Ibid, para. 83. 195 Ibid, para. 83. 196 Ibid, para. 90. 197 Ibid, para. 126. 198 J.-L. Humby, ‘The Thabametsi Case: Case No 65662/16 Earthlife Africa Johannesburg v Minister of Environmental Affairs’, Journal of Environmental Law 30 (2018), 145 (155). 199 Humby, ‘Thabametsi’, 150; on the case L. Kotze and A. du Plessis, ‘Putting Africa on the Stand: A Bird’s Eye View of Climate Change Litigation on the Continent’, University of Oregon’s Journal of Environmental Law and Litigation (2019), 1 (16–21); A.-J. Saiger, ‘Domestic Courts and the Paris Agreement’s Climate Goals: The Need for a Comparative Approach’, Transnational Environmental Law 9 (2020), 37 (45–7); for a youth-led challenge pending with the High Court of South Africa in 2023 see Africa Climate Alliance et al. v Minister of Mineral Resources & Energy et al., High Court of South Africa, Gauteng Division, Founding Affidavit, 121–3, http://​ climatecasechart​.com/​wp​-content/​uploads/​sites/​16/​non​-us​-case​-documents/​2021/​ 20211110​_Case​-No​.​-5690721​_petition​.pdf 193 194

152

Treaties in parliaments and courts

upsurge in executive announcements of withdrawals from international institutions. Confronted with these withdrawals, domestic courts are increasingly called upon to scrutinize the legality of these withdrawal actions. In the Miller I decision, the Supreme Court of the United Kingdom held that the government may not start withdrawing from the EU prior to an act of parliament permitting the renunciation of the Lisbon Treaty.200 Where domestic courts challenge the withdrawal announcement of the executive through demanding parliamentary involvement or through questioning the substantive legality of the withdrawal, domestic courts directly counter challenges to international institutions.201 In this sense, domestic courts become guardians of the international institutional system and ‘agents of the international community’.202 This practice played a particular role in South Africa. The Zuma administration had developed a hesitant stance towards the ICC as well as the tribunal of the Southern African Development Community (SADC).203 After uproar about the non-arrest of Sudanese President Al-Bashir during his visit to South Africa in 2015 despite an ICC arrest warrant being in place, South Africa notified the ICC of its intention to withdraw from the institution in December 2016.204 Also, South Africa participated in the Zimbabwean-led challenge against the SADC tribunal after white farmers successfully challenged Zimbabwean land-expropriation practices in the 2008 Campbell case before the tribunal.205 However, South African courts indicated their support for these institutions. In the ICC withdrawal case, the High Court of South Africa decided that the South African administration could not withdraw from the ICC without prior consent of the parliament.206 The Court argued that the notice of withdrawal would be ‘the equivalent of ratification, which requires prior parliamentary approval in terms of s 231 (2) [of the South African constitution]’.207

200 R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 (24 January 2017); in the Philippines, the case before the Supreme Court on the withdrawal from the ICC is still pending, even after the withdrawal took effect: A. Ortiz, ‘A Preliminary Analysis of the Philippines’ Withdrawal from ICC: Who Holds the Power to Terminate a Treaty?’, SSRN 3607698 (2020). 201 McLachlan, ‘Assault’, 31–3. 202 On the normative implications see Chapter 13. 203 On the context of the convroversy about the ICC see Mills, ‘Bashir’, 404; Boehme, ‘South Africa’, 50. 204 See Instrument of Withdrawal, www​.capetalk​.co​.za/​articles/​193225/​south​-africa​ -to​-begin​-exit​-process​-from​-icc 205 Campbell and Others v Zimbabwe (Merits), Case No SADC (T) 2/2007 (28 November 2008). 206 High Court of South Africa (Gauteng Division, Pretoria), Case No: 83145/2016, 22 February 2017. 207 Ibid, para. 47.

Consistent interpretation

153

Section 231(2) of the constitution would provide for a ‘clear separation of powers between the national executive and the legislature’.208 Sole executive withdrawal would be an ‘anomaly’ the Court was not willing to accept.209 According to the Court, ‘it is trite that where a constitutional or statutory provision confers a power to do something, that provision necessarily confers the power to undo it as well’.210 That the constitution does not explicitly address the decision-making process for the termination of treaties would not run counter such an interpretation.211 The Court ordered the government to revoke the notice of withdrawal until parliament had decided on the matter.212 The Court thus embraced the concept of ‘a shared responsibility’ between the executive and parliament not only for treaty-making but also in relation to treaty termination. Because the Court did not decide on whether the notice of withdrawal violates South African law as a matter of substance,213 the government could have asked parliament for its approval of the withdrawal decision (which it would likely have received in the single-party-dominated democracy). Instead, the government revoked its notification of withdrawal. In any case, the judgment is regarded as an exemplar for resilience against the assault on international institutions because it sets a hurdle to rapid executive treaty withdrawal.214 In relation to the SADC tribunal, the Constitutional Court had already held in the 2013 Zimbabwe v Fick case that the Campbell decision against Zimbabwe is enforceable in South African courts.215 When South Africa together with other members of the SADC decided to strip the SADC tribunal of its individual complaint procedure in 2014, the Constitutional Court went even further by declaring the measures of the administration to violate substantive constitutional norms.216 In response to the Campbell decision of the SADC Tribunal, the Zuma administration together with other SADC members

Ibid, para. 51. Ibid, para. 52. 210 Ibid, para. 53. 211 Ibid, para. 53. 212 Ibid, para. 84. 213 Ibid, paras 72–6; on this see H. Woolaver, ‘Domestic and International Limitations on Treaty Withdrawal: Lessons from South Africa's Attempted Departure from the International Criminal Court’, AJIL Unbound 111 (2017), 450 (452–3). 214 McLachlan, ‘Assault’; M. du Plessis and G. Mettraux, ‘South Africa’s Failed Withdrawal from the Rome Statute. Politics, Law, and Judicial Accountability’, Journal of International Criminal Justice 15 (2017), 361. 215 The Government of the Republic of Zimbabwe v Louis Karel Fick and others, Case CCT 101/12 [2013] BCLR 1103 (CC), 27 June 2013. 216 Law Society of South Africa and Others v President of the Republic of South Africa and Others [2018] ZACC 51, 11 December 2018. 208 209

154

Treaties in parliaments and courts

decided to refrain from electing new judges to the regional tribunal and signed a new protocol envisioning a SADC Tribunal without jurisdiction for individual complaints.217 In 2015, the Law Society of South Africa, the professional organization for South African attorneys, challenged these measures, suggesting that the disbandment violates the right of access to justice enshrined in the South African Bill of Rights.218 After the High Court held the government’s participation in suspending the SADC Tribunal and its signing of the new protocol to be unconstitutional,219 the case reached the Constitutional Court. In December 2018, the Constitutional Court confirmed the High Court’s judgment unanimously with two judges attaching a concurring opinion.220 The majority opinion written by Chief Justice Mogoeng put forward that the government actions violated international law stressing that ‘there was and still is no legal basis for the President to act contrary to the unvaried provisions of a binding Treaty’.221 According to the majority opinion, the states circumvented the three-quarters majority amendment threshold required in Article 35 SADC Treaty when allowing the new protocol to enter into force after adoption by only 10 of the 16 SADC member states.222 In the view of the majority, the President also violated the pacta sunt servanda principle as codified in Article 26 of the Vienna Convention on the Law of Treaties (VCLT) by employing the wrong procedure for the amendment of the SADC Treaty.223 After this argument based on violations of international law only, the reasoning of the majority turned to violations of domestic law in combination with international law. The Court stressed that the President ‘lacked the authority to sign any international agreement that seeks to frustrate the pre-existing right of 217 G. Erasmus, The New Protocol for the SADC Tribunal: Jurisdictional Changes and Implications for SADC Community Law (Tralac 2015), 1; K. Alter, J. Gathii and L. Helfer, ‘Backlash against International Courts in West, East and Southern Africa, Causes and Consequences’, EJIL 27 (2016), 293 (306–14); G. Naldi and K. Magliveras, ‘The New SADC Tribunal: Or the Emasculation of an International Tribunal’, Netherlands International Law Review 63 (2016), 133. 218 Law Society of South Africa, ‘SADC Tribunal Matter’, www​.lssa​.org​.za/​our​ -initiatives/​advocacy/​sadc​-tribunal​-matter/​. 219 High Court of South Africa, Law Society of South Africa and Others v President of the Republic of South Africa and Others, Case No. 20382/2015, 1 March 2018; on the decision see F. Lange, ‘Fighting the Backlash – The South African High Court on the Suspension of the SADC Tribunal’, VerfBlog,  2018/8/30, https://​verfassungsblog​ .de/​fighting​-the​-backlash​-the​-south​-african​-high​-court​-on​-the​-suspension​-of​-the​-sadc​ -tribunal/​. 220 Law Society of South Africa and Others v President of the Republic of South Africa and Others [2018] ZACC 51, 11 December 2018. 221 Ibid, para. 48. 222 Ibid, paras 49, 52–3. 223 Ibid, paras 54–5.

Consistent interpretation

155

South Africans to access justice’.224 More specifically, the majority judgment stressed that ‘[a]s long as fundamental rights, like access to justice, that are protected by an international agreement also remain an integral part of our Constitution, the President may not, without a prior and proper amendment to remove those rights, initiate a process that constitutes a threat to them’.225 The majority opinion highlighted that in the Fick decision, the access-to-justice provision of the South African constitution (Section 34 of the constitution) had been construed to facilitate the enforcement of the Tribunal’s decisions in South Africa.226 Lastly, the majority emphasized the ‘duty as a nation […] to protect […] the citizens’ right of access to the Tribunal through state machinery’ and that the President ‘lacks the authority to negotiate and sign away our fundamental and treaty right of access to justice’.227 As a remedy, the Constitutional Court ordered the President to withdraw his signature of the new protocol.228 The decision is groundbreaking for its far-reaching use of domestic law to maintain participation with an international institution.229 Instead of limiting the constitutional analysis to questions of the separations of power, as the High Court did in the ICC withdrawal case, the Court holds the disbanding of the SADC Tribunal to violate substantive provisions of constitutional law. The access to justice for individuals provided for in the SADC Treaty is read into the access-to-justice provision of the South African constitution. The decision implies that besides limits of international law and procedural limits of constitutional law, there also exist substantial constitutional limits for withdrawing from treaties. Faced with the Zuma administration’s opposition to the regional institution, the South African judiciary developed a constitutional guarantee of the SADC Tribunal’s individual complaints mechanism.

Ibid, para. 77. Ibid, para. 77. 226 Ibid, para. 77. 227 Ibid, para. 85. 228 Ibid, para. 97. 229 For a critique, D. Tladi, ‘A Constitution Made for Mandela, A Constitutional Jurisprudence Developed for Zuma: The Erosion of Discretion of the Executive in Foreign Relations’, in H. Aust and T. Kleinlein (eds), Encounters between Foreign Relations Law and International Law: Bridges and Boundaries (CUP 2021), 215; A. Koagne Zouapet and M. Plagis, ‘Braamfontein Encroaching? An Internationalist Reading of the South African Constitutional Court Judgment on the SADC Tribunal’, South African Journal on Human Rights 35 (2019), 378. 224 225

156

6.4

Treaties in parliaments and courts

EIGHTH AMENDMENT JURISPRUDENCE IN THE US

In the US, the use of human rights treaties in constitutional interpretation has triggered controversial debate. While the notion of consistently interpreting statutory law has been recognized since the 1804 Charming Betsy decision,230 US courts have hesitated to employ the notion in relation to fundamental rights. However, some case law exists. After the end of the Second World War, four Supreme Court justices referred to the human rights provision of the UN Charter in Oyama v California in a case concerning the enforcement of the California Alien Land Act.231 The Act contained a presumption of abuse when an alien prohibited from owning agricultural land bought land in the name of a US citizen. The Supreme Court majority held that such a presumption violates equal protection granted under the Fourteenth Amendment.232 In their concurring opinions, four justices cited the obligation under the UN Charter to ‘promote […] universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion’.233 Justice Black asked rhetorically how the US may comply with the obligation ‘if state laws which bar land ownership and occupancy by aliens on account of race are permitted to be enforced?’234 While the decision does not concern the status of a UN human rights treaty in the US domestic order, the justices relied on the human rights provisions of the UN Charter. While the Bricker Amendment controversy led to a decline in the popularity of human rights arguments in US courts,235 reference to human rights treaty obligations in constitutional interpretation once again increased in frequency after the late 1980s. In the context of the interpretation of the prohibition on inflicting cruel and unusual punishment (Eighth Amendment), the justices on the Supreme Court took different views on the relevance of foreign and international practice for assessing whether a particular punishment is contrary to the ‘evolving standards of decency that mark the progress of a maturing society’.236 In the 1988 Thompson v Oklahoma case, the plurality opinion held by five to three votes that the execution of a 15-year-old would be uncon-

Murray v The Schooner Charming Betsy, 6 US 64, 118 (1804), 1 January 1804. Oyama v California, 332 U.S. 633 (1948), 19 January 1948. 232 Ibid. 233 Ibid, 673. 234 Ibid, 650. 235 Chapter 10.3. 236 M. Matusiak, M. Vaughn and R. del Carmen, ‘The Progression of “Evolving Standards of Decency” in US Supreme Court Decisions’, Criminal Justice Review 39 (2014), 253. 230 231

Consistent interpretation

157

stitutional under the Eighth Amendment.237 Writing for the plurality, Justice Stevens pointed to the abolishment of the death penalty for juveniles in various Western countries.238 While not referencing international law, the decision set the tone for the liberal view on the engagement with foreign sources. In its 1989 Stanford v Kentucky decision, the Supreme Court upheld the imposition of the death penalty on 16- and 17-year-old juvenile perpetrators because a national consensus against the practice could not be discerned in light of the various state laws providing for the juvenile death penalty.239 The dissent written by Justice Brennan not only questioned the majority’s assessment of the national consensus but also examined ‘standards of decency’ at the international level. The dissent cited Article 6(5) of the ICCPR, Article 4(5) of ACHR and Article 68 of the Geneva Convention (IV) as evidencing that ‘the imposition of the death penalty for juvenile crimes appears to be overwhelmingly disapproved’.240 In later cases, some justices cited international practice apart from treaties when interpreting the Eighth Amendment. While the majority denied certiorari for a case that concerned the execution of prisoners after approximately 20 years on Death Row in Knight v Florida,241 dissenting Justice Breyer pointed to decisions by foreign courts and the UN Human Rights Committee on the matter as ‘useful even though non-binding’.242 In the 2002 Atkins v Virginia case, the Court held in a six to three decision that the execution of people with intellectual disabilities violates the Eighth Amendment.243 The decision was primarily based on the evolution of a national consensus against the death penalty in such cases,244 but the majority opinion written by Justice Stevens (joined by Justices O’Connor, Kennedy, Souter, Ginsburg and Breyer) also referenced international standards. In footnote 21, the majority opinion pointed to an amicus curiae brief of the EU to demonstrate that ‘within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved’.245 Even though these cases did not suggest that one should interpret the US constitution consistently with human rights treaties, they demonstrate that for some of the more liberal justices, international and foreign practice became a key argument in the context of the Eighth Amendment.

239 240 241 242 243 244 245 237 238

Thompson v Oklahoma, 487 US 815 (1988), 29 June 1988. Ibid, 830–1. Stanford v Kentucky, 492 US 361, 26 June 1989. Ibid, 389–90, Fn. 2/10, Dissenting opinion Justice Brennan. Knight v Florida, 120 S. Ct. 459 (1999), 8 November 1999. Ibid, 464, Dissenting opinion Justice Breyer. Atkins v Virginia, 536 US 304 (2002), 20 June 2002. Ibid, 311–21. Ibid, 316, fn 21.

158

Treaties in parliaments and courts

This jurisprudence paved the way for consideration of foreign practice and international law in doctrinal contexts other than the Eighth Amendment.246 In 1999, a Federal District Court stressed in the context of a deportation that according to the Charming Betsy canon, statutes have to be construed as not conflicting with international law.247 The Court pointed to a Human Rights Committee decision that regards exclusion from a country where close family members are living as potentially violating the prohibition of arbitrary interference with family relations (Article 17 of the ICCPR).248 The Court observed that General Comments and individual decisions by the Human Rights Committee ‘are recognized as a major source for the interpretation of the ICCPR’.249 The Court stressed that Article 13 of the ICCPR contains the right of an alien to submit reasons against his expulsion and concluded that these rights had been violated.250 In the 2003 Lawrence v Texas decision, the Supreme Court majority then referred to an ECtHR decision as persuasive authority to substantiate its reasoning. With six to three votes, the Supreme Court struck down a Texan sodomy law that criminalized homosexual conduct.251 Overturning the Bowers v Hartwick precedent from 1986,252 the majority opinion held that the substantive due process clause under the Fourteenth Amendment protects the right to privacy, which includes intimate consensual sexual conduct among homosexual people.253 Writing for the majority, Justice Kennedy (joined by Justices Stevens, Souter, Ginsburg, and Breyer) referenced to ECtHR jurisprudence to dismiss the argument advanced in Bowers v Hardwick that ‘[c]ondemnation of [homosexual practices] is firmly rooted in Judeo-Christian moral and ethical standards’.254 As counterevidence, Kennedy inter alia cited Dudgeon v United Kingdom (1981), in which the ECtHR held a law criminalizing same-sexual acts in Northern Ireland to violate the right to privacy as enshrined in Article 8 of the ECHR.255 Kennedy suggested that, thus, the premise that homosexuality

246 On the jurisprudence of lower courts see J. Kalb, ‘Human Rights Treaties in State Courts: The International Prospects of State Constitutionalism after Medellin’, Penn State Law Review 115 (2010), 1051. 247 Maria v McElroy, 68 F.Supp.2d 206, 231, 7 October 1999. 248 Human Rights Committee, Shirin Aumeeruddy-Cziffra and 19 Other Mauritian Women v Mauritius, Communication No. 35/1978, 9 April 1981, para. 9.2 (b). 249 Ibid, 232. 250 Ibid, 232–3. 251 Lawrence v Texas, 539 US 558 (2003), 26 June 2003. 252 Bowers v Hardwick, 478 US 186 (1986), 30 June 1986. 253 Lawrence v Texas, 539 US 558 (2003), 26 June 2003. 254 Bowers v Hardwick, 478 US 186, 196 (2003), 30 June 1986, Concurring opinion Justice Burger. 255 ECtHR, Dudgeon v The United Kingdom, Application No. 7525/76, 22 October 1981.

Consistent interpretation

159

had to be condemned in Western civilization was unfounded.256 The reference to foreign decisions became a key reason for overturning the precedent.257 In general, citations to human rights treaties became more frequent over time. In Grutter v Bollinger, Justice Ginsburg, joined by Justice Breyer, substantiated the argument that race-related affirmative action measures may endure for as long as is necessary to achieve the intended objective by pointing to CERD and CEDAW provisions.258 In Hamdan v Rumsfeld, a majority of five justices held that the procedure of the military commission established for trying detainees at Guantanamo Bay violates US domestic law and the rights of the accused under the Geneva Conventions.259 In a footnote, the majority opinion, written by Justice Stevens, referred to the ICCPR as evidence for another international instrument besides the 1977 Protocol I of the Geneva Conventions that protects the rights of the accused to be present at his or her trial.260 However, references to foreign practice more generally and international agreements more specifically continued to have their strongest impact in the Eighth Amendment jurisprudence.261 In 2003, the Missouri Supreme Court held the juvenile death penalty unconstitutional, noting that ‘the views of the international community have consistently grown in opposition to the death penalty for juveniles’, citing prohibitions in the CRC and other treaties as evidence.262 Building on this case, the 2005 Roper v Simmons Supreme Court case represented ‘a high-water mark’ of reliance on international human rights law in constitutional interpretation.263 The Court held in a five to four decision written by Justice Kennedy (joined by Justice Stevens, Breyer, Ginsburg and Souter) that the death sentence for juvenile offenders violates the Eighth Amendment protection against cruel and unusual punishment.264 When assessing the ‘evolving standards of decency’, the majority opinion pointed to an emerging national consensus against capital punishment for juvenile

Lawrence v Texas, 539 US 558, 573 (2003), 26 June 2003. M. Tushnet, ‘Transnational/Domestic Constitutional Law’, Loyola of Los Angeles Law Review 37 (2003), 239 (244–5). 258 Grutter v Bollinger, 539 US 306, 344 (2003), 23 June 2003. 259 Hamdan v Rumsfeld, 548 US 557 (2006), 29 June 2006. 260 Ibid, fn 66. 261 Kalb, ‘State Courts’, 1059. 262 Simmons v Roper, 112 S.W.3d 397, 411 (Mo. 2003), 26 August 2003; on the debate in state courts about the juvenile death penalty see Kalb, ‘State Courts’, 1057. 263 P. Spiro, ‘Sovereigntist’s Twilight’, Berkeley Journal of International Law 31 (2013), 308 (320); on the cases see also D. Amann, ‘International Law and Rehnquist-Era Reversals’, Georgetown Law Journal 94 (2005), 1319. 264 Roper v Simmons, 543 US 551 (2005), 1 March 2005. 256 257

160

Treaties in parliaments and courts

offenders.265 Furthermore, Kennedy emphasized the ‘overwhelming weight of international opinion against the juvenile death penalty’.266 In particular, he stressed that the United States was the only country besides Somalia, which had not ratified the CRC prohibiting capital punishment for criminal offences by juveniles under 18 (Article 37 of the CRC).267 Also, he pointed to Article 6(5) of the ICCPR, Article 4(5) of the ACHR and Article 5(3) of the African Charter on the Rights and Welfare of the Child as evidence for the overwhelming rejection of the juvenile death penalty.268 According to Kennedy, ‘[t]he opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions’.269 Moreover, he emphasized that ‘it does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom’.270 In Graham v Florida (2010), the Supreme Court held by five to four that sentencing a juvenile offender to life in prison without parole for a non-homicide crime violates the Eighth Amendment.271 The majority opinion stressed that a national consensus against such a sentencing practice existed.272 Moreover, relying heavily on the Roper precedent, Justice Kennedy, writing for the majority (joined by Justices Sotomayor, Breyer, Ginsburg and Stevens), once more emphasized that international conventions confirm this constitutional interpretation.273 He underlined that with the decision ‘we continue the longstanding practice in noting the global consensus against the sentencing practice in question’.274 Moreover, he referred to Article 37(a) of the CRC prohibiting the imposition of ‘life imprisonment without possibility of release […] for offences committed by persons below eighteen years of age’. That the United States did not ratify this treaty would not matter. For the purpose of the decision, it would only be important that international opinions confirm the conclusion that the punishment in question is cruel and unusual.275 Kennedy’s majority opinions were thus partly based on provisions of human rights treaties that the US had not ratified. Kennedy regarded the treaties as 267 268 269 270 271 272 273 274 275 265 266

Ibid, 564–7. Ibid, 578. Ibid, 576. Ibid, 576. Ibid, 578. Ibid, 578. Graham v Florida, 560 US 48 (2010), 17 May 2010. Ibid, 62–7. Ibid, 80–2. Ibid, 80. Ibid, 81.

Consistent interpretation

161

persuasive authority for the reasoning of the Court. According to him, the Eighth Amendment’s prohibition of cruel and unusual punishment needed to be understood in light of the provisions of the CRC. While Supreme Court justices barely referred to human rights treaties since Graham v Florida except in the context of the Alien Tort Statute,276 Kennedy’s approach represents the inclination of some to pay attention to multilateral treaties in their constitutional interpretation.

6.5

THE IMPACT OF DIVERGENT JUDICIAL ATTITUDES

The comparison demonstrates that consistent interpretation is a well-known interpretative technique in the respective domestic legal orders, which the various courts employ to different extents. In the US, only some Supreme Court justices have accepted references to international standards as persuasive authority for constitutional interpretation in specific doctrinal contexts. Most importantly, in the Eighth Amendment jurisprudence, some justices have treated human rights treaties or other foreign sources as evidence for an international consensus against certain forms of the death penalty, which ‘confirm’ the national consensus against the practice. In general, reluctance governs the judicial approach to the treaties discussed here.277 In contrast, in Germany, harmonization may either be employed to construe the Basic Law’s fundamental rights or to interpret statutory law.278 Human rights treaties are used to support arguments on broad protections of the individual, in particular if procedural rights are concerned, given the Basic Law’s relative abstinence on such rights. At the same time, the Court engages with potentially conflicting views of treaty bodies on a matter in order to substantiate outcomes dismissing wider protections.279 The international criminal law treaties and jurisprudence and climate change obligations also may work as interpretative guidelines in domestic proceedings. In India, domestic courts have considerably broadened the scope of the fundamental rights under the Indian constitution with reference to human rights and the views of UN treaty bodies. In this context, the courts often used the persuasive authority of foreign or international decisions

On the ATS see Chapter 8. Chapter 9.4 and 9.5. 278 On this A. Proelß, ‘Der Grundsatz der völkerrechtsfreundlichen Auslegung im Lichte der Rechtsprechung des BVerfG’, in H. Rensen and S. Brink (eds), Linien der Rechtsprechung des Bundesverfassungsgerichts, Vol. I (De Gruyter 2009), 553 (563–4). 279 On the potential of conflict in the multilayered system Paulus, ‘Germany’, 210–11; for a thorough treatment of these conflicts Sauer, Jurisdiktionskonflikte. 276 277

162

Treaties in parliaments and courts

to comparatively substantiate their reasoning. International criminal law and climate change law are only used in a few cases to substantiate a court’s reasoning. In South Africa, domestic courts heavily draw from human rights treaties and decision of human rights bodies as persuasive authority when interpreting constitutional provisions. Moreover, treaties affected the interpretation of domestic environmental law and the implementing legislation to the Rome Statute. The differences between the court practices in the four jurisdictions can partly be explained by the different legal contexts in which the courts operate. Because the US and India did not ratify the Rome Statute, domestic law does not need to be interpreted consistently with the Statute. The fact that the US did not ratify the Kyoto Protocol and that the Protocol does not contain binding mitigation targets for India and South Africa contributes to the limited role of climate change treaties in the respective domestic jurisprudence.280 Moreover, US courts rarely interpret the constitution in light of human rights treaties because the US attached non-self-executing declarations to the few treaties it has ratified.281 In contrast, higher ratification records of human rights treaties in Germany, India and South Africa explain the frequent references. The approaches of the executive and legislature affect the courts’ uses of the notion of consistent interpretation. Furthermore, different constitutional rules partly explain the divergent approaches. The broad protections of social rights under the South African constitution and the directive principles referring to social rights under the Indian constitution enable courts in both jurisdictions to frequently draw from General Comments of the ICESCR Committee.282 More generally, because the South African constitution contains a provision on consistent interpretation (Section 233 of the constitution) and the constitutional obligation to consider international law when interpreting the Bill of Rights (Section 39(1) (b) of the Constitution),283 the courts are willing to integrate international law in their decisions. Similarly, Indian courts often cite the principle of fostering respect 280 On this for the US, D. Bodansky, ‘International Environmental Law in United States Courts’, Review of European Comparative & International Environmental Law 7 (1998), 57. 281 Çalı, ‘Comparing Support’, 906–7. 282 D. Bilchitz, ‘Constitutionalism, the Global South and Economic Justice’, in D. Bonilla Maldonado (ed.), Constitutionalism of the Global South: The Activist Tribunals of India, South Africa and Columbia (CUP 2013), 41; S. Shankar, ‘The Embedded Negotiators: India’s Higher Judiciary and Socioeconomic Rights’, in D. Bonilla Maldonado (ed.), Constitutionalism of the Global South: The Activist Tribunals of India, South Africa and Columbia (CUP 2013), 129. 283 N. Botha and M. Olivier, ‘Ten Years of International Law in the South African Courts’, SAYIL 29 (2004), 42.

Consistent interpretation

163

for treaties (Article 51(c) of the Indian constitution) as the basis for harmonizing the constitution with international obligations. In contrast, no similar constitutional provisions exist in the US. However, the constitutional provisions do not alone determine whether a court adopts a more embracing or less reliant approach to treaties. In the Indian context, a literal understanding of Article 51(c) of the Indian constitution as a directive principle of state policy runs counter to its application in domestic courts because the constitutional text determines that directive principles ‘shall not be enforced by any court’.284 Also, the constitutional drafters assumed that Article 51 of the constitution was supposed to direct India’s foreign policy but not to enforce its international legal commitments domestically.285 Furthermore, despite the lack of provisions on consistent interpretation, German courts developed the concept of international law-friendliness (Völkerrechtsfreundlichkeit) of the Basic Law to grant international law a strong role in the interpretation of the constitution. German courts relied on the Basic Law’s provisions touching upon foreign relations to construe the interpretative technique of Völkerrechtsfreundlichkeit – an angle that US courts could also have chosen. While US courts interpret parliamentary legislation consistently with treaty obligations, they are hesitant to employ this approach to constitutional interpretation. Thus, there are other factors that explain the different practices. In the US context, some justices’ ingrained scepticism towards an internationalized reading of the US constitution explains the reluctance to engage with international standards.286 In fact, the debate about the use of foreign sources and international agreements in constitutional interpretation has been a crucial divisive line between the justices of different ideological inclinations at least from the early 2000s onwards.287 In this debate, some justices, regarded as liberal or moderate, pushed for a more internationalized understanding of the constitution in particular in death penalty cases.288 One year after Atkins v Virginia, Justice Breyer, one of the key advocates of the position, embraced the ‘new international law’ of the 1990s at a 2003 meeting of the American 284 On the interpretation of Article 51 of the Indian Constitution see N. Jain, ‘The Democratizing Force of International Law: Human Rights Adjudication by the Indian Supreme Court’, in A. Roberts, P. Stephan, P.-H. Verdier and M. Versteeg (eds), Comparative International Law (OUP 2018), 319 (321); Rajamani, ‘Constitutional Schema’, 145–6. 285 Chandra, ‘Dualism’, 31. 286 Chapter 9.4 and 9.5. 287 For the different positions see Dorsen, ‘Relevance’, 519. 288 On the ideological inclination of the justices see N. Devins and L. Baum, ‘Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court’, The Supreme Court Review 8 (2016), 301.

164

Treaties in parliaments and courts

Society of International Law.289 Breyer suggested that this new international law would more strongly influence the jurisprudence of the Supreme Court in the future.290 Citing statements by Justice O’Connor and Justice Ginsburg and mentioning Justice Stevens, Justice Souter and himself, Breyer stressed that a majority of judges at the Court regard international law as ‘direct[ly] relat[ing] to their work’.291 His statement not only confirmed that the justices are divided on the matter of the use of treaties in constitutional interpretation, but also created expectations for a consistent internationalist majority. Because cases like Atkins v Virginia, Roper v Simmons and Graham v Florida seemed to prove the existence of such a majority in favour of the use of foreign sources and treaties, litigators started to inject international legal arguments into their briefs more regularly.292 In this context, the ideological background of the respective justices partly explains the willingness to cite the international standards. The justices who Breyer mentioned had by no means all been appointed by Democratic Presidents and thus did not come from the same political spectrum. In fact, only Breyer and Ginsburg had been appointed by Democratic President Clinton, whereas Justice O’Connor had been appointed by Republican President Reagan, Justice Stevens by Republican President Ford and Justice Souter by Republican President George H.W. Bush. However, the latter three were regarded as the more moderate justices at the Court when compared to Justices Scalia, Rehnquist and Thomas, which rejected the use of international law for constitutional interpretation per se.293 Furthermore, the role of Justice Kennedy who became the ‘swing vote’ of the court after Justice O’Connor’s retirement in 2006 was crucial. Kennedy, who had been appointed by Republican President Reagan,294 sided with the more liberal faction of the court when it came to foreign sources writing the majority opinions in Lawrence v Texas, Roper v Simmons and Graham v Florida. To some observers, Kennedy’s incli-

289 S. Breyer, ‘The Supreme Court and the New International Law’, Address to the American Society of International Law, 4 April 2003, www​.supremecourt​.gov/​ publicinfo/​speeches/​viewspeech/​sp​_04​-04​-03. 290 Ibid. 291 Ibid. 292 J. Kalb, ‘Evaluating International State Constitutionalism’, Washington Law Review 91 (2016), 141 (144). 293 A. Martin and K. Quinn, ‘Ideological Leanings of Supreme Court Justices’, https://​commons​.wikimedia​.org/​wiki/​File:​Graph​_of​_Martin​-Quinn​_Scores​_of​ _Supreme​_Court​_Justices​_1937​-Now​.png; on the latter three see Chapter 9.4 and 9.5. 294 D.A. Yalof, Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees (University of Chicago Press 2001), 155–64.

Consistent interpretation

165

nation to positively refer to international decisions was the main reason for his occasional concurrence with the more liberal justices of the Court.295 Be that as it may, the support for citations of international law and references to foreign sources in constitutional interpretation gradually deteriorated. While Justice Breyer’s 2015 book The Court and the World continued to call for interaction between the US legal system and the legal doctrines prevalent in the international community,296 the Court had become more reluctant to grant international legal arguments persuasive authority.297 In contrast, in South Africa the emphasis on international law in the constitutional jurisprudence stems from a specific understanding of international law’s status in South Africa’s history. To many observers, including justices, international human rights law had been an ally in the fight against apartheid. Thus, it needed to be taken seriously. In National Commissioner of the South African Police Service, concerning prosecution of crimes committed in Zimbabwe, the Constitutional Court started its reasoning by pointing to Nelson Mandela’s celebration of human rights as a guide for post-apartheid South African foreign policy.298 The Court connected this history to the facts of the case when emphasizing that ‘[t]he extent of our country’s responsibilities as a member of the family of nations to investigate crimes against humanity lies at the heart of this case’.299 In Ruta v Minister of Home Affairs, the Court emphasized that ‘[t]he year in which the Universal Declaration [on Human Rights] was adopted is of anguished significance to our country, for in 1948 the apartheid government came to power’.300 Accordingly, the apartheid history ‘looms tellingly over any understanding we seek to reach of the Refugees Act’.301 In the opening paragraphs of the SADC Tribunal case, the majority opinion referred to ‘[t]he centrality of international law in shaping our democracy’.302 The Court explained international law’s ‘well-deserved prominence in the architecture of our constitutional order’ with the ‘wide range of international legal instru-

295 J. Toobin, ‘Swing Shift: How Anthony Kennedy’s Passion for Foreign Law Could Change the Supreme Court’, 12 September 2005, www​.newyorker​.com/​archive/​ 2005/​09/​12/​050912fa​_fact​#ixzz1KyCKUdYf. 296 S. Breyer, The Court and the World: American Law and the New Global Realities (Knopf 2015). 297 Chapter 9.4 and 9.5. 298 National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre 2014 (12) BCLR 1428 (CC), 30 October 2014, para. 1. 299 Ibid, para. 3. 300 Ruta v Minister of Home Affairs (CCT02/18) [2018] ZACC 52; 2019 (3) BCLR 383 (CC); 2019 (2) SA 329 (CC), 20 December 2018, para. 25. 301 Ibid, para. 25. 302 Law Society of South Africa and Others v President of the Republic of South Africa and Others [2018] ZACC 51, 11 December 2018, para. 4.

166

Treaties in parliaments and courts

ments’ that ‘expose[d] the barbarity and inhumanity of the apartheid system of governance in our push for its eradication’.303 The South African justices adopted a historical narrative about the place of international law during apartheid and in post-apartheid South Africa, which informed their approach when harmonizing international legal rules with the domestic legal order. Moreover, the engagement with international agreements and foreign sources was linked to the search for a substitute for non-existent precedent.304 South African courts chose to borrow from foreign jurisdictions and international courts to set the frame for the law of the young democracy under a new constitution.305 Justice Mokgoro explained in S v Makwanyane that the constitutional provision requiring reference to international law ‘seems to acknowledge the paucity of home-grown judicial precedent upholding human rights, which is not surprising considering the repressive nature of the past legal order’.306 According to her, ‘[i]t requires courts to proceed to public international law and foreign case law for guidance in constitutional interpretation, thereby promoting the ideal and internationally accepted values in the cultivation of a human rights jurisprudence for South Africa’.307 Furthermore, the South African openness to foreign sources and international agreements was inspired by a tradition prevalent in common-law systems that invites distinction from and comparison with cases beyond national borders, in particular within the Commonwealth.308 Former Justice Ackermann pointed to a ‘comparative law ethos’ when stressing that the Court would have taken a comparative outlook even without explicit constitutional provisions on the value of comparative law.309 The Constitutional Court relied not only on Commonwealth apex courts, but also on jurisprudence of regional international courts and treaty body statements. Furthermore, with its decisions on the ICC and the SADC Tribunal, the South African judiciary challenged the Zuma administration’s foreign policy of disengagement with these institutions. This jurisprudence was part of a judicial self-assertion in the context of an increasingly strained relationship between

Ibid, para. 4. J. Kalb, ‘The Judicial Role in New Democracies: A Strategic Account of Comparative Citation’, Yale Journal of International Law 38 (2013), 423 (424–5). 305 Ibid, 424–5. 306 S v Makwanyane and Another (CCT3/94) [1995] ZACC 3, 6 June 1995, Concurring opinion Justice Mogkoro, para. 304. 307 Ibid, para. 304. 308 Martini, Vergleichende Verfassungsrechtsprechung, 265–73. 309 L. Ackermann, ‘Constitutional Comparativism in South Africa’, South African Law Journal 123 (2006), 497 (501). 303 304

Consistent interpretation

167

the executive and the judiciary under President Zuma.310 While increasing judicial concern about executive corruption partly explains the direct applicability of international law in the Glenister II case,311 the main fault line between the executive and judiciary became the field of foreign relations in general and the executive treatment of Sudanese President Al-Bashir in particular. Despite pending arrest warrants by the ICC against Al-Bashir, South African officials did not detain and extradite Al-Bashir when he visited the 2015 African Union summit close to Johannesburg. Through this inaction, the executive ignored a direct order of the High Court of South Africa to detain Al-Bashir.312 On an urgent application brought by the South African Litigation Center during Al-Bashir’s visit, the High Court of South Africa decided that the government’s failure to arrest Al-Bashir violated the constitution.313 Nonetheless, Al-Bashir left the country without any executive attempt at prevention.314 In the aftermath, the Supreme Court of Appeal dismissed the executive line of reasoning that South Africa was obliged to grant Al-Bashir head of state immunity under customary international law.315 Instead, the Supreme Court of Appeal held that the failure to arrest Al-Bashir violated South Africa’s obligations under the Rome Statute and Section 10 of the ICC Act.316 Various ANC officials were unwilling to accept the judicial interference in the administration’s foreign policy decision-making. Responding to the decision on the Al-Bashir non-arrest, ANC Secretary General Gwede Mantashe criticized the ‘drive in some courts to create chaos for governance’.317 The Minister for Higher and Tertiary Education stated in more aggressive fashion that ‘we liberated this country […] We are never going to ask for permission from forces who were never with us in the trenches.’318 The highest judges responded in an extraordinary press conference with a statement read by Chief 310 S. Ellman, ‘The Struggle for the Rule of Law in South Africa’, New York Law School Law Review 60 (2015), 57. 311 See Chapter 7.3. 312 High Court of South Africa, Gauteng Division, Pretoria, Southern African Litigation Centre v Minister of Justice and Constitutional Development and Others (27740/2015), 24 June 2015. 313 Ibid, para. 2. 314 The Minister of Justice and Constitutional Development v The Southern African Litigation Centre (867/15) [2016] ZASCA 17, 15 March 2016, paras 4–7. 315 Ibid, paras 66–7. 316 Ibid, para. 113. 317 S. Grootes, ‘Time and Again: The ANC vs the Courts’, Daily Maverick, 23 June 2015, www​.dailymaverick​.co​.za/​article/​2015​-06​-23​-time​-and​-again​-the​-anc​-vs​-the​ -courts/​#​.VZ2M2caqqkp. 318 S. Grootes, ‘When Judges of the Land Said “Enough!” to the ANC’, Daily Maverick, 8 July 2015, www​.dailymaverick​.co​.za/​article/​2015​-07​-08​-when​-judges​-of​ -the​-land​-said​-enough​-to​-the​-anc/​.

168

Treaties in parliaments and courts

Justice Mogoeng. Under the title ‘The judiciary’s commitment to the rule of law’, the judges emphasized the relevance of judicial independence and the rule of law for South African democracy.319 In particular, the judges pointed to the dangers of executive non-compliance with court orders and called for moderation in judicial criticism.320 After a meeting between President Zuma and the Chief Justice signalled a rapproachement of the two branches,321 the next executive-critical decisions reopened the wounds. In response to the ICC withdrawal case,322 an ANC discussion paper attacked the alleged judicial ‘attempts on the part of some privileged sectors of society to undermine the popular electoral mandate’.323 Thus, it is not surprising to find traces of the conflict between the two branches in the decisions. In the High Court decision on Al-Bashir’s visit, the judges highlighted that ‘[a] democratic State based on the rule of law cannot exist or function, if the government ignores its constitutional obligations and fails to abide by court orders’.324 In the SADC Tribunal judgment, Chief Justice Mogoeng made the criticism that the executive ‘made common cause with other Member States in the region to deprive South Africans and citizens from other SADC countries of access to justice’.325 Mogoeng suggested that the Court would not sacrifice South Africa’s ‘rightful place in the family of nations at the altar of diplomacy’.326 Rather than a guardian of the Zuma administration, the Court became a guardian of the SADC Tribunal. In Germany, the notion of an international law-friendly (völkerrechtsfreundlich) reading of the constitution had evolved in the context of the consolidation of West Germany after the Second World War.327 The idea of drafting a Basic Law with a strong role for international law had received 319 Office of the Chief Justice on Commitment to the Rule of Law, 8 July 2015, www​.gov​.za/​speeches/​office​-chief​-justice​-commitment​-rule​-law​-8​-jul​-2015​-0000. 320 Ibid. 321 N. Marrian, ‘Zuma, Judges Agree on “Mutual Respect”’, Business Day, 28 August 2015, www​.bdlive​.co​.za/​national/​law/​2015/​08/​28/​zuma​-judges​-agree​-on​ -mutualrespect. 322 High Court of South Africa (Gauteng Division, Pretoria), Case No: 83145/2016, 22 February 2017. 323 ANC Draft Strategy & Tactics 2017, 12 March 2017, www​.politicsweb​.co​.za/​ archive/​anc​-draft​-strategy​-​-tactics​-2017. 324 High Court of South Africa, Gauteng Division, Pretoria, Southern African Litigation Centre v Minister of Justice and Constitutional Development and Others (27740/2015), 24 June 2015, para. 37. 325 Law Society of South Africa and Others v President of the Republic of South Africa and Others [2018] ZACC 51, 11 December 2018, para. 81. 326 Ibid, para. 91. 327 During the Weimar Republic, the term völkerrechtsfreundliche Auslegung had been used to describe the notion of consistent interpretation of statutory law as devel-

Consistent interpretation

169

broad support during the constitutional drafting process in the late 1940s.328 The Social Democratic politician and legal scholar Carlo Schmid successfully pushed for the direct applicability and precedence of ‘general rules of international law’ in the German legal order as an expression of a new beginning of the young West German state.329 Schmid argued that one had to leave behind the German tradition of understanding international law as external state law (Außenstaatsrecht).330 Instead, West Germany would need to accept ‘the primacy of international law’ because the only ‘effective weapon of the powerless is law, international law’.331 Schmid likely hoped that these ‘general rules’ might be used by the ‘weak’ German pariah state to challenge some of the laws of the occupying powers.332 Early commentators suggested that the German constitutional provisions such as Article 25 of the Basic Law were expressions of ‘the idea of international law-friendliness’ (Völkerrechtsfreundlichkeit).333 Building on this language, the Constitutional Court employed the concept of Völkerrechtsfreundlichkeit to demonstrate Germany’s situatedness in the international environment.334 This by no means meant that the idea was always used to give primacy to international agreements or broaden protections of the individual. The Constitutional Court’s decision on the Reichskonkordat, which invoked the concept of international law-friendliness for the first time, stressed that the ‘Basic Law does not go so far in its support for international law as to secure compliance with existing international agreements’.335 The Court underlined

oped by the Supreme Court of the German Reich since the 1880s: Walz, Völkerrecht, 392–4. 328 F. Schorkopf, Staatsrecht der internationalen Beziehungen (Beck 2017), 619–27. 329 Der Parlamentarische Rat, 1948–1949, Akten und Protokolle, 12. Sitzung des Ausschusses für Grundsatzfragen, 15 October 1948, Volume 5/I (Harald Boldt 1993), 315–22. 330 Ibid, 317–18. 331 Ibid, 321–2. 332 T. Rensmann, ‘Die Genese des “offenenen Verfassungsstaats” 1948/1949’, in T. Giegerich (ed.), Der “offene Verfassungsstaat“ des Grundgesetzes nach 60 Jahren: Anspruch und Wirklichkeit einer großen Errungenschaft (Duncker & Humblot 2010), 37 (40–4); on the role of international law in countering the occuping powers see Lange, Praxisorientierung, 131–66. 333 C. Curtius, ‘Völkerrechtliche Schranken der Änderung des Grundgesetzes. Einige Bemerkungen zu Art. 25 GG’, DÖV 1955, 145 (145). 334 F. Schorkopf, ‘Völkerrechtsfreundlichkeit und Völkerrechtsskepsis in der Rechtsprechung des Bundesverfassungsgerichts’, in T. Giegerich (ed.), Der “offene Verfassungsstaat” des Grundgesetzes (Duncker & Humblot 2010), 131. 335 Federal Constitutional Court, 2 BvG 1/55, 26 March 1957, para. 224; for a contemporary critique see J. Kaiser, ‘Die Erfüllung der völkerrechtlichen Verträge des Bundes durch die Länder’, ZaöRV 18 (1957), 536.

170

Treaties in parliaments and courts

that legislative powers on the state level may be exercised even if international obligations are violated.336 In the 1960s, the Constitutional Court suggested that the international law-friendliness of the constitution would require respect for foreign legal orders.337 Thus, the Court held that the extradition of an accused to France was legal even if he might face the death penalty.338 In any case, the idea of an international law-friendly interpretation of the constitution became a prominent theme in the Constitutional Court’s jurisprudence.339 The writings of Klaus Vogel on the ‘open statehood’ (offene Staatlichkeit) of the Basic Law contributed to the popularity of the concept.340 While Vogel understood ‘open statehood’ as a counter-model to the ‘closed commercial state’ (geschlossener Handelsstaat), about which the philosopher Johann Gottlieb Fichte had written about in the early nineteenth century,341 others interpreted the international law-friendly provisions of the Basic Law as an expression of the rejection of national socialism and Stalinism.342 In the 1990s, the fact that the ECtHR made binding judgments on whether Germany (including its courts) complies with the ECHR became another motivator for consistent interpretation. German courts may avoid compensation claims against the German state for violations of the ECHR if they take ECtHR jurisprudence into account.343 After the Caroline conflict over the scope of the right to privacy demonstrated how the ECtHR might dismiss the reasoning of German courts, the Constitutional Court developed the duty to take ECtHR decisions into account to make contradictory interpretations less likely in the future. In later years, the Court expanded this reasoning to the decisions of UN treaty bodies. The goal of avoiding conflicts with the international courts and bodies has contributed to relatively extensive reliance on their decisions. In contrast, decisions of foreign courts construing foreign domestic laws play a lesser role.344 Possibly, the international law-friendly focus of the Court explains the lesser emphasis on comparative references to other jurisdictions. Federal Constitutional Court, 2 BvG 1/55, 26 March 1957, para. 224. Federal Constitutional Court, 1 BvR 93/64, 30 June 1964, para. 27. 338 Ibid. 339 One commentator pointed as early as 1957 to the ‘notorious international law-friendliness of the Basic Law’, Kaiser, ‘Erfüllung’, 553; see Schorkopf, ‘Völkerrechtsfreundlichkeit’, 137–41. 340 K. Vogel, Die Verfassungsentscheidung des Grundgesetzes für eine internationale Zusammenarbeit (Mohr Siebeck 1964), 41–4. 341 Ibid, 14–15. 342 A. Bleckmann, ‘Die Völkerrechtsfreundlichkeit der deutschen Rechtsordnung’, DÖV 1979, 309 (310). 343 Griebel, ‘Schutz’, 379. 344 Martini speaks of a stronger impact of the ECtHR jurisprudence when compared to decisions of other foreign courts: Martini, Vergleichende Verfassungsrechtsprechung, 224. 336 337

Consistent interpretation

171

In India, the references to human rights treaties since the 1970s were part of the change of direction by Indian courts after the emergency period. The Habeas Corpus majority opinion and other cases had considerably weakened the perception of the Supreme Court as a bastion of protection of individuals’ rights.345 Some justices attempted to recreate confidence in the judicial process through opening the courts to the concerns of the marginalized and poor. By lowering standing requirements and deciding cases in the interest of marginalized groups of society, the Court hoped to recast itself as a court of the common people.346 In this context, reliance on human rights law came to be a key instrument for expanding individual protections. Justices famous for developing public interest litigation, such as Justice Krishna Iyer, grounded their judicial rulings in international human rights standards.347 In general, human rights treaties played a key role in justifying broad interpretations of the constitution. As Chief Justice K.G. Balakrishnan stated in 2010, ‘[r]eliance on foreign law was instrumental’ in allowing for public interest litigation and expanding the interpretation of the ‘protection of life and liberty’ as enshrined in Article 21 of the constitution.348 According to him, ‘the importation of international and comparative law has been part of a conscious strategy of social transformation wherein previously disadvantaged groups have been made aware of their basic right’.349 While this assessment of the role of courts may be somewhat idealized,350 international and foreign decisions received considerable traction in the Indian case law. Moreover, the growth of the human rights regimes in the 1990s enabled Indian courts to engage with human rights treaties even more regularly. Reference to international law grew to play a key role in the attempts of the judiciary to take action in response to perceived failure and inaction of other institutions such as the executive and parliament.351 Because in the eyes of the

Robinson, ‘Structure Matters’, 181. Robinson, ‘Structure Matters’, 181; Rajagopal, ‘Evaluation’, 159–60; in detail on the jurisprudence, S. Sathe, ‘Judicial Activism: The Indian Experience’, Washington University Journal of Law and Policy 6 (2001), 29 (43–87). 347 On justice, Krishna Iyer U. Baxi, ‘Taking Suffering Seriously: Social Action Litigation in the Supreme Court of India’, Third World Legal Studies 4 (1985), 107 (112–13); Patel, State Practice, 156; 159. 348 K.G. Balakrishnan, ‘The Role of Foreign Precedents in a Country’s Legal System’, National Law School of India Review 22 (2010), 1 (11–12). 349 Ibid, 15. 350 B. Rajagopal, ‘Pro-Human Rights but Anti-Poor? A Critical Evaluation of the Indian Supreme Court from a Social Movement Perspective’, Human Rights Review 8 (2007), 157; for a critique of public interest litigation in general A. Bhuwania, Courting the People: Public Interest Litigation in Post-Emergency India (CUP 2017). 351 Tushnet, ‘Outside’, 1026–7; Smith, ‘Making’, 256. 345 346

Treaties in parliaments and courts

172

judiciary these institutions at times fail to address pressing social issues, the judiciary takes it upon itself to take the lead through the application of international human rights law. In this context, the apex court considers international standards to broaden the scope of constitutional protections in areas in which other highest courts or international bodies already determined the scope of the rights in question. Because the Indian constitution does not know an explicit right to privacy, the Supreme Court drew from human rights treaties and international decisions to read the right into the constitution. The common law tradition in which references to decisions in other common law jurisdictions are the rule rather than the exception promotes such engagement with foreign and international cases.352

Kanwar, ‘Treaty Interpretation’, 240–1.

352

7. Direct application Domestic courts integrate international law into the domestic order by declaring a treaty provision to be directly applicable if the respective domestic requirements for direct applicability are met.1 In such cases, domestic courts apply provisions of international law without prior legislative implementation.2 Instead of construing domestic law in light of international law, the international rules directly govern the legal outcome of the decision. Direct applicability is often used interchangeably with terms such as direct effect and self-execution,3 despite their different historical origins. While the idea of self-executing treaties has a long tradition in US jurisprudence4 and direct effect played a key role in the evolution of European law,5 the term direct applicability stems from the jurisprudence of the Permanent Court of International Justice (PCIJ) in the 1920s.6 In its decision on the Jurisdiction of the Courts of Danzig the PCIJ stressed that the ‘very object of an international agreement, according to the intention of the contracting Parties, may be the adoption by the Parties of some definite rules creating individual rights and obligations and enforceable by the national courts’.7 In this light, certain provisions of a bilateral treaty between the Free City of Danzig and Poland would be ‘directly applicable’.8 1 K. Kaiser, ‘Treaties, Direct Applicability’, Max Planck Encyclopedia of Public International Law (February 2013), para. 1. 2 Ibid., para. 1; ILA, Study Group 2016, 8; R.F. Oppong, ‘Re-Imagining International Law: An Examination of Recent Trends in the Reception of International Law into National Legal Systems in Africa’, Fordham International Law Journal 30 (2007), 296 (297–8). 3 See for instance R. Bilder, ‘Integrating International Human Rights Law into Domestic Law: U.S. Experience’, Houston Journal of International Law 4 (1981), 1 (1–2); A. von Bogdandy, ‘Pluralism, Direct Effect, and the Ultimate Say: On the Relationship between International and Domestic Constitutional Law’, ICON 6 (2008), 397 (398); Nollkaemper, National Courts, 117–38. 4 Foster v Neilson, 27 US (2 Pet.) 253, 314 (1829). 5 ECJ, Van Gend and Loos, Case 26/26, 5 February 1963, 13. 6 On these three sources of direct applicability see Y. Iwasawa, ‘Domestic Application of International Law’, Recueil de Cours 378 (2015), 11 (28–31). 7 Permanent Court of Justice, Jurisdiction of the Courts of Danzig, Advisory Opinion, PCIJ Series B No 15, 3 March 1928, para. 37. 8 Ibid, para. 38; on this see Iwasawa, ‘Domestic Application’, 32–4; K. Parlett, ‘The PCIJ’s Opinion in Jurisdiction of the Courts of Danzig: Individual Rights under

173

174

Treaties in parliaments and courts

While direct effect is often understood to contain the notion that an individual may invoke the international norm in a domestic court procedure, direct applicability strictly speaking only concerns the validity and applicability of an international norm in the domestic order, without necessarily providing for invocability.9 However, in this chapter the term direct application is understood to generally include invocability; whenever courts make a distinction between applicability and invocability, this will be pointed out.10 Courts explicitly engage with the question of direct applicability less often in relation to international agreements when compared with European law.11 Generally, domestic courts tend to focus on consistent interpretation or harmonization without explicitly assessing whether a certain provision is directly applied.12 Nonetheless, direct application is well known in various jurisdictions, in particular in monist systems. In fact, a key ground for classifying a system as monist is that treaties need no legislative act of transformation to be regarded as valid and applicable in the domestic order.13 This does not mean that individuals may invoke every provision of a treaty that has been ratified by the respective state. Instead, domestic courts in monist systems are frequently called upon to determine whether private actors may or may not directly rely on a treaty provision. Courts in the Netherlands, Poland, Switzerland and the US developed a rich jurisprudence defining and interpreting direct effect, self-execution and conditions for private rights of action.14

Treaties’, Journal of the History of International Law 10 (2008), 119. 9 Kaiser, ‘Treaties’, para. 2; Nollkaemper, National Courts, 121–2; A. Peters, Jenseits der Menschenrechte. Die Rechtsstellung des Individuums im Völkerrecht (Mohr Siebeck 2014), 447–9; D. Hollis and C. Vázquez, ‘Treaty Self-Execution as “Foreign” Foreign Relations Law’, in C. Bradley (ed.), The Oxford Handbook of Comparative Foreign Relations Law (OUP 2019), 467 (470). 10 Some however distinguish between validity, direct applicability and invocability of treaties: see H. Sauer, Staatsrecht III. Auswärtige Gewalt, Bezüge des Grundgesetzes zu Völker- und Europarecht (Beck, 5th ed. 2018), 86–93; others between self-execution and direct right of action: Restatement (Fourth), § 309 and § 310. 11 On direct effect in European law, M. Rasmussen, ‘Revolutionizing European Law: A History of the Van Gend en Loos Judgment’, ICON 12 (2014), 136; for a reconceptualization of the concept in European law, C. Wohlfahrt, Die Vermutung unmittelbarer Wirkung des Unionsrechts Ein Plädoyer für die Aufgabe der Kriterien hinreichender Genauigkeit und Unbedingtheit (Springer 2015). 12 Bradley, ‘Charming Betsy’, 482–3; Nollkaemper, National Courts, 117. 13 ILA, Study Group 2016, 8. 14 Hollis and Vásquez, ‘Self-Execution’, 468; A. Nollkaemper, ‘The Netherlands’, in D. Sloss (ed.), The Role of Domestic Courts in Treaty Enforcement: A Comparative Study (CUP 2009), 326; L. Garlicki and M. Masternak-Kubiak and K. Wojtowicz, ‘Poland’, in D. Sloss (ed.), The Role of Domestic Courts in Treaty Enforcement: A Comparative Study (CUP 2009), 370.

Direct application

175

In contrast, in strictly dualist systems, implementing legislation is always regarded to be a necessary precondition for the transformation of the treaty in the domestic system, rendering direct applicability a rare concept.15 Only after a treaty has been transformed into the domestic order through implementing legislation is the legislation applicable as domestic law.16 However, the notion of self-executing treaty provisions also plays a role in moderate dualist systems such as the German one, in which it is recognized that individuals may directly rely on treaty provisions that have become part of the domestic order through the approval law.17 Domestic courts have developed different criteria for allowing a provision direct applicability in the domestic order.18 Most domestic courts assume that a provision needs to be sufficiently precise to be directly applicable.19 Some courts find a treaty provision to be self-executing only if the parties to a treaty intended to have it directly applied in the domestic order.20 In any case, with the exception of the ECJ, courts assume that it is national law, not international law, that determines the conditions for direct effect.21 This study classifies the case law under the heading of direct application if courts explicitly hold that a certain treaty provision is self-executing or directly applicable. Moreover, the study suggests that in some cases courts directly apply treaty provisions without making this explicit. In the absence of domestic laws on the issue at stake, domestic courts draw the international provisions directly into the domestic order. While the demarcation between harmonization and direct application is not clear-cut but a sliding scale, the study proposes that one may speak in such cases of de facto direct application.

7.1

THE UN CHARTER IN THE US

The scope of application of treaties as supreme and directly applicable in the domestic order has been marginalized in US jurisprudence of domestic courts since the emergence of the idea of self-executing treaty provisions in the early Sloss and Alstine, ‘Domestic Courts’, 110. Ibid, 110. 17 On this see Chapter 7.2. 18 A. Seibert-Fohr, ‘Neue internationale Anforderungen an die Überführung von Menschenrechtsabkommen in nationales Recht – Das Verhältnis des Internationalen Pakts über bürgerliche und politische Rechte zu nationalem Recht’, ZaöRV 62 (2002), 391 (395); Buergenthal, ‘Treaties’, 341–67. 19 Kaiser, ‘Treaties’, para. 16; Hollis and Vásquez, ‘Self-Execution’, 474–6. 20 On this see Restatement (Fourth), § 310; Foster v Neilson, 27 US (2 Pet.) 253, 314 (1829). 21 A. Nollkaemper, ‘The Duality of Direct Effect of International Law’, EJIL 25 (2014), 105. 15 16

176

Treaties in parliaments and courts

nineteenth century.22 In the 1829 Foster v Neilson case, Chief Justice Marshall suggested that in light of the supremacy clause, courts should regard a treaty as ‘equivalent to an act of the legislature’ when it ‘operates of itself without the aid of any legislative provision’.23 In contrast, ‘when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act’, the treaty concerns the political branches and must be executed by the legislature before courts may directly apply it.24 Even though the Court did not use the term ‘self-execution’ explicitly, the passage is often regarded as the origin of the distinction between self-executing and non-self-executing treaty provisions.25 Until the mid-twentieth century, US courts mostly held treaties to be directly applicable as ‘supreme Law of the Land’ in the US legal system.26 Over the course of the twentieth century, treaties came to be treated less often in this way, presumably due to the rise of US geopolitical power and decreased dependence on international recognition as a treaty-abiding state.27 With the American Law Institute’s 1965 publication of the Restatement (Second) of the Foreign Relations Law of the United States, the idea that non-self-executing treaty provisions provide an exception to treaty supremacy was consolidated.28 The Restatement held a treaty to only be self-executing if the parties to the treaty intend the provision to be directly applicable.29 The Restatement (Third) of 1987 and Restatement (Fourth) of 2018 accepted this approach.30 However, while Louis Henkin, the rapporteur of the Restatement (Third), attached a note arguing that there should exist a presumption that a treaty is self-executing also because this would enhance international law’s effectiveness,31 the Restatement (Fourth) does not contain a similar note. The Restatement (Fourth) holds that ‘[c]ourts will evaluate whether the text and context of the provision, along with other treaty materials, are consistent with an understanding by the U.S. treatymakers that the provision would be directly enforceable in courts in the United States’.32 Furthermore, the Restatement stresses that ‘whether a treaty provision is sufficiently precise or obligatory’ Sloss, Death. Foster v Neilson, 27 US (2 Pet.) 253, 314 (1829). 24 Ibid. 25 See E. Dickinson, ‘Are the Liqor Treaties Self-Executing’, AJIL 20 (1926), 444. 26 In particular when it came to state law: Sloss, Death, 85–105; 129–52; Hollis and Vásquez, ‘Self-Execution’, 468. 27 Sloss, Death, 173–290. 28 Restatement (Second) of The Foreign Relations Law of the United States (1965); on this see Sloss, Death, 267–90. 29 Restatement (Second), § 141 (1). 30 Restatement (Third), § 111 (4); Restatement (Fourth), § 310 (2). 31 Restatement (Third), § 111, Note 5. 32 Restatement (Fourth), § 310 (2). 22 23

Direct application

177

and ‘whether the provision was designed to have immediate effect, as opposed to contemplating additional measures by the political branches’ are ‘relevant considerations’ when assessing whether a treaty is self-executing.33 The debate about the scope of treaty supremacy and self-execution was strongly linked to the evolution of the UN human rights system after the Second World War. In the 1950 Fujii case, the District Court of Appeal of California declared the California Alien Land Law invalid, which prohibited foreigners ineligible for citizenship from owning real estate property.34 Because higher courts had regarded the main provisions of the Alien Land Law to be constitutionally valid,35 the judges turned to international law as the key reason for rejecting the validity of the Act. The discriminatory flavour of the Act would violate the Preamble and Articles 1, 2, 55 and 56 of the UN Charter, which embrace the goal of encouraging respect for human rights and for fundamental freedoms ‘without distinction as to race, sex, language, or religion’.36 According to Article VI, Clause 2 of the US constitution, the Charter would be ‘supreme Law of the Land’, directly applicable by judges.37 The Court highlighted that the ‘discrimination against a people of one race is contrary both to the letter and to the spirit of the Charter which, as a treaty, is paramount to every law of every state in conflict with it’.38 Accordingly, the California Alien Land Law ‘must […] yield to the treaty as the superior authority’.39 Thus, the Court turned to the human rights provisions of the UN Charter to declare a state law invalid. However, two years later, the Supreme Court of California overturned the Fujii decision, stressing that the provisions of the Charter were ‘not intended to supersede existing domestic legislation’.40 Instead, the Court held the California Alien Land Law to be invalid under constitutional law.41 Since then, no US court has applied international human rights provisions on the basis of the treaty supremacy clause to override federal or state law.42 Moreover, US

Ibid. District Court of Appeal, Second District, California, Fujii v State, 217 Pac.(2d) 481, 24 April 1950. 35 Supreme Court of the United States, Terrace v Thompson, 263 US 197, 12 November 1923; Porterfield v Webb, 263 US 225, 12 November 1923; C. Fairman, ‘Finis to Fujii’, AJIL 46 (1952), 682 (685). 36 District Court of Appeal, Second District, California, Fujii v State, 217 Pac.(2d) 481, 485–6, 24 April 1950. 37 Ibid, 486–7. 38 Ibid, 488. 39 Ibid, 488. 40 Sei Fujii v State, 38 Cal.2d 718, 17 April 1952; on the case see Chapter 7.1. 41 Ibid. 42 Sloss, Death, 231–8. 33 34

178

Treaties in parliaments and courts

courts held neither provisions of international criminal law nor international climate change law to be directly applicable in the US domestic order. The notion of self-executing provisions was also called into question in other subject areas. In cases concerning the VCCR, the majority of the justices at the Supreme Court avoided addressing the issue whether Article 36 of the VCCR on consular notification created judicially enforceable rights, and explicitly held Article 94 of the UN Charter on the bindingness of ICJ decisions not to be self-executing in the US domestic order.43 Only in dissenting opinions did self-execution find some support. In his dissent in Sanchez-Llamas v Oregon, Justice Breyer, joined by Justices Stevens, Souter and Ginsburg (in part), stressed that the supremacy clause coupled with self-execution made Article 36 of the VCCR on consular notification directly applicable.44 According to Breyer, the parties to the VCCR agreed that the treaty provision ‘operates of itself without the aid of any legislative provision’.45 Pointing to the language of Article 36 of the VCCR, according to which domestic laws ‘must enable full effect’ of the purposes of the rights granted, Breyer emphasized that the provision is ‘intended to set forth standards that are judicially enforceable’.46 He indicated that evidence that had been attained in violation of the Article 36 of the VCCR needed to be disregarded in domestic court proceedings.47 In his dissent in Medellín v Texas, Justice Breyer, joined by Justices Souter and Ginsburg, stressed that ‘the treaty obligations, and hence the [ICJ] judgment resting as it does upon the consent of the United States to the ICJ’s jurisdiction, bind the courts no less than would “an act of the [federal] legislature”’.48 In light of the supremacy clause, the language of Article 94 of the UN Charter would suggest that ICJ decisions that have been ‘rendered pursuant to provisions for binding adjudication must be domestically legally binding and enforceable in domestic courts at least sometimes’.49 Accordingly, US courts would need to follow the ICJ’s decision in the case at hand as binding law.50 While the self-execution notion thus found some support, the majority of justices limited its scope considerably in these cases.51

Chapter 10.1. Sanchez-Llamas v Oregon, 548 US 331, 371-378 (2006), 28 June 2006, Dissenting opinion Justice Breyer. 45 Ibid, 373. 46 Ibid, 373–4. 47 Ibid, 392–6. 48 Medellín v Texas, 552 US 491, 539 (2008), 25 March 2008, Dissenting opinion Justice Breyer. 49 Ibid, 555. 50 Ibid, 563–4. 51 Chapter 10.1. 43 44

Direct application

7.2

179

NON-DISCRIMINATION PROVISIONS IN GERMANY

In Germany, direct effect is primarily associated with European law,52 but has a longer history in relation to treaties under international law. As early as Weimar times, the Supreme Court of the German Reich held provisions of the Versailles Treaty to be directly applicable ‘if any single provision, according to content, purpose and wording, is apt to have private law effects, without there being any need for further international or municipal actions’.53 Similarly, since the 1970s the Constitutional Court has stressed that all international treaty provisions are directly applicable if they ‘possess all the characteristics which a statute must have under domestic law’ in order to be obligatory for someone.54 The treaty provision needs to be ‘capable in its wording, purpose and content to produce legal effects in the same way as a provision of domestic law’.55 German courts regard these requirements to be fulfilled ‘only in exceptional cases’.56 Treaties containing state-to-state obligations generally do not fall under the self-executing category. For instance, the Constitutional Court declared provisions of the Treaty of Moscow (1970) and the Treaty of Warsaw (1970) addressing the relations of the Federal Republic with the Soviet Union and Poland not directly applicable.57 However, some provisions of human rights treaties are regarded to fulfil the criteria of direct application. In particular, civil and political rights are usually regarded as sufficiently precise to be directly applied.58 Nonetheless, domestic courts mostly harmonize statutory legislation or constitutional rules with the ICCPR provisions without assessing whether the provisions are directly applicable.59 The issue of direct applicability is only explicitly addressed in some cases; for instance, when it comes to economic and social rights. In particular, domestic courts held non-discrimination provisions of treaties that contain social rights to be self-executing. For instance, the Federal Social Court decided that the non-discrimination

52 On the recognition of direct effect of directives in German jurisprudence see Federal Constitutional Court, Kloppenburg, 2 BvR 687/85, 8 April 1987. 53 RG, I 372/26, 18 June 1927. 54 Federal Constitutional Court, 1 BvL 7/66, 9 December 1970, para. 42. 55 Ibid, para. 42. 56 Federal Constitutional Court, 2 BvR 636/09, 21 June 2016, para. 12; Schorkopf, Staatsrecht, 200. 57 Federal Constitutional Court, 1 BvR 274/72, 7 July 1975. 58 Krajewski, ‘Beiwerk’, 11. 59 Chapter 6.

180

Treaties in parliaments and courts

provision of Article 5(2) of the CRPD is directly applicable.60 Similarly, the same court stressed that the prohibition of discriminatory withholding of health care services (Article 25 Sentence 3f of the CRPD) is self-executing as an area-specific, special prohibition of discrimination.61 More generally, the Federal Administrative Court indicated that ICESCR provisions, which had often been declared to lack direct applicability, might well be directly applicable in the German domestic order.62 Beyond the field of human rights, the Federal Constitutional Court accepted that certain provisions of the Refugee Convention are directly applicable.63 Also, in a case concerning the VCCR’s consular notification obligation, the Constitutional Court held Article 36 VCCR to be self-executing.64 The treaty provision, which contains the right of an accused foreigner to have their consulate informed about the proceedings against them, was sufficiently precise to be directly applied by German law enforcement authorities.65 To support its reasoning, the Court cited the dissenting opinion of Justice Breyer in Sanchez-Llamas, which had been decided some months earlier.66 Nonetheless, the impact of direct applicable international law in the German domestic order is rather marginal. Most of the time, provisions of human rights treaties containing social rights or climate change treaties like the Kyoto Protocol are held to be non-self-executing.67 Even if courts recognize direct applicability, the international rules are held to reflect the status of domestic law. The Federal Social Court stressed that the CRPD’s directly applicable non-discrimination provision is equivalent to the prohibition of discrimination under constitutional law.68 Direct application often does not have an impact on the interpretation of German law. All in all, German courts tend to choose consistent interpretation for integrating international provisions into the domestic order.69

60 Federal Social Court, B 1 KR 10/11 R, 6 March 2012, paras 29–32; Federal Social Court, B 1 KR 12/13 R, 2 September 2014, para. 23. 61 Federal Social Court, B 1 KR 78/11 B, 10 May 2012, paras 9–12. 62 Federal Administrative Court, 6 C 16/08, 29 April 2009, para. 46. 63 Federal Constitutional Court, 2 BvR 450/11, 8 December 2014, para. 35. 64 Federal Constitutional Court, 2 BvR 2115/01, 19 September 2006, para. 54. 65 Ibid, para. 54. 66 Ibid, para. 54; on the Supreme Court case Chapter 7.1. 67 Chapter 10.2. 68 Federal Social Court, B 1 KR 10/11 R, 6 March 2012, paras 29–32; Federal Social Court, B 1 KR 12/13 R, 2 September 2014, para. 23; Federal Social Court, B 9 SB 34/21 B, 18 November 2021, para. 7. 69 Chapter 6.1.

Direct application

181

7.3 THE GLENISTER CASE IN SOUTH AFRICA In apartheid South Africa, a strictly dualist understanding dominated the jurisprudence of domestic courts. As the Appellate Division of the Supreme Court stated in Pan American World Airways Incorporated v SA Fire and Accident Insurance Co Ltd., ‘as a general rule, the provisions of an international instrument […] are not embodied in our municipal law except by legislative process’.70 The Court stressed that ‘[i]n the absence of any enactment giving their relevant provisions the force of law, they cannot affect the rights of the subject’.71 Whereas the drafters of the post-apartheid 1993 interim constitution did not include a provision on the direct applicability of treaties in the text,72 the 1996 constitution explicitly contains the concept of self-executing treaty provisions. According to part 2 of Section 231(4) of the constitution, ‘a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament’. Section 231(4) of the constitution thus recognizes that certain treaty provisions may be directly applicable. The treaty in which the provision is contained needs to have received approval by parliament, according to Section 231(2) of the constitution, but does not need to have been transformed into the domestic legal order through implementing legislation. Nonetheless, because direct applicability was not known in South African legal tradition, some scholars regard the inclusion of the self-execution concept in the South African constitutional context as an unwise transfer from the US.73 In any case, the provision hardly plays a role in the practice of South African courts.74 In AZAPO v President of South Africa, the Court held on the 70 Pan American World Airways Incorporated v SA Fire and Accident Insurance Co Ltd., 1965 3 ALL SA 24 (A), 1 April 1985, 28. 71 Ibid, 28. 72 M. Olivier, ‘The Status of International Law in South African Municipal Law: Section 231 of the 1993 Constitution’, SAYIL 19 (1993), 1. 73 N. Botha, ‘Treaty Making in South Africa: A Reassessment’, SAYIL 25 (2000), 69 (91); R. Keightley, ‘Public International Law and the Final Constitution’, SAJHR 12 (1996), 405 (413). 74 The Constitutional Court tends to evade the issue: see President of the Republic of South Africa v Quagliani, CCT24/08, CCT52/08) [2009], 21 January 2009, paras 45–6; on this case J. Dugard and A. Coutsoudis, ‘The Place of International Law in South African Municipal Law’, in J. Dugard, M. du Plessis, T. Maluwa and D. Tladi (eds), Dugard’s International Law: A South African Perspective (Juta, 5th ed. 2019), 57 (84–6); W. Scholtz and G. Ferreira, ‘Has the Constitutional Court Found the Lost Ball in the High Weeds? The Interpretation of Section 231 of the South African Constitution’, The Comparative and International Law Journal of Southern Africa 42 (2009), 264; more generally E. Ngolele, ‘The Content of the Doctrine of Self-Execution and Its Limited Effect in South African Law’, SAYIL 31 (2006), 141; M. Olivier,

182

Treaties in parliaments and courts

basis of the interim constitution that ‘[i]nternational conventions and treaties do not become part of the municipal law of our country, enforceable at the instance of private individuals in our courts, until and unless they are incorporated into the municipal law by legislative enactment’.75 In the 2011 Glenister case, the Constitutional Court then directly drew untransformed treaty provisions into the domestic order.76 Even though the court did not base its decision on Section 231(4) of the constitution and the notion of self-executing treaty provisions, provisions of an international agreement were directly relied upon for constitutional interpretation. As a substantive matter, the Court held that the Zuma administration’s decision (backed by parliamentary legislation) to replace the existing anti-corruption unit with a new policing unit violated the South African constitution.77 In 2009, the ANC-dominated legislature had established the Directorate of Priority Crime Investigation (referred to as ‘the Hawks’), which was subject to control by members of the executive. This meant that the more independent existing anti-corruption unit (referred to as ‘the Scorpions’) lost its competences.78 In proceedings challenging this legislation, international agreements concerning corruption played a decisive role. While South Africa had signed and ratified the UN Convention on Corruption in 2003/4, the Convention had not been transformed into domestic law through legislation. According to the slim five to four majority, written by Justices Moseneke and Cameron, the Convention nonetheless had crucial importance. The majority opinion held that Section 7(2), which requires the state to ‘respect, protect, promote and fulfil the rights in the Bill of Rights’, contains a positive obligation of the state to create an independent anti-corruption unit.79 Under the heading ‘Independence, international obligations and our Constitution’, the majority opinion argued that the positive obligation stems from an assessment of South Africa’s treaty obligations.80 Against the background of Section 39(1)(b) of the constitution, the majority justices pointed to the key role which the UN Convention against Corruption, the SADC Corruption Protocol and the African Union Convention

‘Exploring the Doctrine of Self-Execution as Enforcement Mechanism of International Obligations’, South African Yearbook of International Law 27 (2002), 99. 75 Constitutional Court, Azanian Peoples Organisation (AZAPO) v President of the Republic of South Africa, CCT 17/96, 25 July 1996, para. 26. 76 C. Gowar, ‘Status of International Treaties in the South African Domestic Legal System: Small Steps towards Harmony in Light of Glenister’, SAYIL 36 (2011), 307. 77 Glenister v The President of the Republic of South Africa and Others [2011] ZACC 6, 2011 (3) SA 347 (CC), 17 March 2011. 78 Ibid, paras 1–2, 160. 79 Ibid, para. 163. 80 Ibid, para. 179.

Direct application

183

on Corruption accord to the independence of anti-corruption units.81 The majority justices underlined that the conventions ‘impose on the Republic the duty in international law to create an anti-corruption unit that has the necessary independence’.82 The majority justices stressed that the international provisions became domestic law because ‘[o]ur Constitution appropriates the obligation for itself, and draws it deeply into its heart, by requiring the state to fulfil it in the domestic sphere.’83 In the language of the majority, the ‘state must create an anti-corruption entity with the necessary independence’ stemming ‘from our domesticated international obligations and […] therefore an intrinsic part of the Constitution itself’.84 The majority held that the Hawks unit would not live up to the standard of necessary independence, because its members would lack secure conditions of employment and stand under the political control of the executive.85 The minority opinion strongly contested the reasoning for incorporating a treaty into the domestic order that had not been implemented by parliament.86 Writing for the minority, Judge Ngcobo stressed that ‘treating international conventions as interpretive aids does not entail giving them the status of domestic law in the Republic’.87 The minority opinion underlined that even the ‘incorporation of an international agreement does not transform the rights and obligations embodied in the international agreement into constitutional rights and obligations’.88 Nonetheless, the majority justices favoured widening domestic constitutional norms through direct incorporation of international treaty provisions. Because the majority opinion did not clearly explain how the international provisions became part of the domestic order despite the lack of implementing legislation, controversy about its interpretation arose. Some commentators argue that the justices merely treated international law as an interpretative aid for domestic law, as in other decisions.89 Others stress that ‘the weight attached to these international obligations in the interpretation of the section 7(2) duty of the state, ultimately results in these international obligations being enforceable in domestic law, as constitutional rights’.90 Furthermore, according to Justice Cameron – who had co-authored the majority opinion – the decision Ibid, paras 179–86. Ibid, para. 189. 83 Ibid, para. 189. 84 Ibid, para. 197. 85 Ibid, para. 248. 86 Ibid, para. 95. 87 Ibid, para. 98. 88 Ibid, para. 102. 89 P. de Vos, ‘How Not to Criticise a Court Judgment’, 28 March 2011, https://​cons​ titutional​lyspeaking​.co​.za/​how​-not​-to​-criticise​-a​-court​-judgment/​. 90 Gowar, ‘Status’, 324. 81 82

184

Treaties in parliaments and courts

goes ‘far further’ than previous case law by ‘cut[ting] through the theoretical debate about the relationship between international law and national law – the monism/dualism debate’ – and ‘draw[ing] international law directly into the domestic sphere, using the provisions of the Constitution itself’.91 In the absence of domestic law on the issue, the majority justices regarded treaty provisions of an unincorporated treaty as determining the outcome of the case. The Glenister majority opinion thus de facto directly applied treaty provisions on anti-corruption in the domestic order.

7.4

DE FACTO IMPLEMENTATION IN INDIA

Indian courts did not explicitly state that treaties can be directly applicable and self-executing in the domestic order. According to the Westminster model of treaty-making and implementation, the executive concludes a treaty while the parliament transforms it into domestic law through implementing legislation.92 Article 253 of the Indian constitution highlights that parliament has the power ‘to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries’. The provision thus enables legislative action through which treaties are transformed into the domestic order.93 This also means that, in contrast to customary international law, treaties generally have no direct legal force in the domestic system prior to legislative action.94 In theory, all treaties are non-self-executing because without prior legislation a treaty cannot be applicable in the domestic order.95 Accordingly, in the seminal 1980 Jolly Verghese v Bank of Chochin case, the Indian Supreme Court stressed that ‘international conventional law must go through the process of transformation into the municipal law before the international treaty can become an internal law. From the national point of view, the national rules alone count’.96 Since then, the Court has repeatedly referred to the applicability of the ‘doctrine of

91 E. Cameron, ‘Constitutionalism, Rights, and International Law: The Glenister Decision’, Duke Journal of Comparative and International Law 23 (2013), 389 (404–5). 92 Harrington, ‘Scrutiny’, 125. 93 Hegde, ‘Courts’, 54. 94 McLachlan, Foreign Relations, 80–3. 95 Jayawickrama, ‘India’, 244; Hollis and Vásquez, ‘Self-Execution’, 472. 96 Jolly George Verghese & Anr v The Bank of Cochin on 4 February, 1980; 1980 AIR 470, 1980 SCR (2) 913, 918; for reference to the incorporation doctrine for international law in general, however, see Gramophone Company of India v Birendra Bahadur Pandey [1984] 2 SCR 664 (673).

Direct application

185

dualism’ in the Indian legal context,97 a view that is shared by many observers.98 Also, the Indian government maintains that treaties ‘are not self-executing but require enabling legislation’.99 Nonetheless, the Indian Supreme Court accords a rather strong role to human rights treaties in constitutional interpretation even without implementing legislation.100 In particular since the mid-1990s, the Court has turned to human rights treaties when developing a far-reaching jurisprudence for the protection of individuals subject to discrimination. In some of its cases, the Court de facto directly read the treaties into the Indian constitutional scheme. In 1997, the Supreme Court decided in Vishaka v Rajastan that CEDAW provisions on sexual harassment at the workplace are directly applicable in the domestic order.101 While the Indian government had ratified CEDAW in 1993, Indian domestic law did not contain provisions that transformed the treaty into the domestic order. In response to the acquittal of alleged gang rapists of a social worker who had tried to prevent a child marriage,102 Vishaka and other women groups filed a public interest litigation claim against the State of Rajasthan and the Union of India. The groups intended to enforce the fundamental rights of working women to equal protection, free speech and life and personal liberty (Articles 14, 19 and 21 of the Indian constitution).103 In his opinion, Justice J.S. Verma stressed that since no domestic provisions governed the issue at stake in the proceedings, ‘[i]nternational [c]onventions and norms are significant for the purpose of interpretation of the guarantee of gender equality’.104 With reference to Article 51(c) of the Indian constitution, Verma emphasized that ‘[a]ny International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into [the constitutional] provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee’.105 The opinion relied on CEDAW to develop the so-called Vishaka guidelines on non-discrimination of women in the workplace. Justice Verma cited Article 11 of CEDAW on the elimination of discrimination in 97 State of West Bengal v Kesoram Industries on 15 January 2004, Appeal (civil) 1532 of 1993; Bhavesh Jayanti Lakhani v State of Maharashtra (2009) 9 SCC 551, 7 August 2009. 98 Jayawickrama, ‘India’, 244; Chandra, ‘Dualism’, 25. 99 Third Periodic Report of India submitted under Article 40 of the International Covenant on Civil and Political Rights, UN Doc. CCPR/C/ 76/Add.6, 17 June 1996, para. 8. 100 Hegde, ‘Courts’, 59. 101 Vishaka v State of Rajastan, AIR 1997 SC 3011, 13 August 1997. 102 Ibid, para. 2. 103 Ibid, para. 1. 104 Ibid, para. 7. 105 Ibid, para. 7.

186

Treaties in parliaments and courts

the workplace and Article 24 of CEDAW on the full realization of rights recognized in CEDAW, and referred to recommendations of the CEDAW Committee on violence and equality in employment.106 He declared that he had ‘no hesitation in placing reliance on the above [CEDAW provisions] for the purpose of construing the nature and ambit of constitutional guarantee of gender equality in our Constitution’, given that India had ratified CEDAW and had promised a national policy on women at the World Conference on Women in Beijing.107 The opinion stressed that international conventions could ‘be used for construing the fundamental rights expressly guaranteed in the Constitution of India which embody the basic concept of gender equality in all spheres of human activity’.108 The Court then formulated the Vishaka guidelines as the new applicable law on sexual harassment in the workplace as long as no legislation exists.109 The guidelines contain a broad definition of sexual harassment and duties of the employer to prevent and deter violations and provide for mechanisms to settle sexual harassment claims.110 While the ruling thus formally applied consistent interpretation – albeit not to statutory but to constitutional law – the decision de facto directly applied the CEDAW provisions in the domestic order.111 In the absence of domestic rules on the matter, the Court turned to unincorporated treaty provisions to draw them directly into the domestic order. By reading the CEDAW provisions into the constitutional provisions on non-discrimination and developing guidelines for avoiding sexual harassment, the Court created rules on sexual harassment at the workplace even though the legislature had not taken any implementation steps as provided for in Article 253 of the Indian constitution. Hence, the Court de facto moved from a dualist conception on the integration of treaties in the domestic order to a monist one giving direct effect to the international provisions.112 In the 2014 National Legal Service Authorities v India case, the Supreme Court built on the Vishaka holding deciding that transgender people must be recognized by Indian law.113 The National Legal Services Authority, which had been established to provide free legal services to marginalized groups, approached the Court to receive recognition of transgender as a third legal

Ibid, paras 12–13. Ibid, para. 13. 108 Ibid, para. 15. 109 Ibid, para. 16. 110 Ibid, para. 16. 111 Atrey, ‘India’, 188. 112 For a similar assessment see Hegde, ‘Courts’, 60; Singh, ‘Treaties’, 64. 113 National Legal Service Authorities v India (2014), WP (Civil) No 604 of 2013, 15 April 2014. 106 107

Direct application

187

category besides male and female, claiming violations of Article 14 and 21 of the Indian constitution.114 Writing the majority opinion, Justice Radhakrishnan based his reasoning to a substantial extent on international instruments and their role in the Indian constitutional order. After explaining the history and fate of transgender persons in India, the opinion listed international human rights instruments on gender identity and sexual orientation.115 The Court put particular emphasis on the Yogyakarta Principles on Human Rights and Sexual Orientation, which had been formulated by a group of human rights experts recognizing various rights such as the right of non-discrimination, the right to recognition before the law and the right to freedom of expression for people of all sexual orientations.116 Moreover, the opinion referred to a report by the ICESCR Committee holding these rights to be applicable to transgender persons.117 In a section headed ‘India to follow International Conventions’, the opinion stressed that the UDHR, the ICCPR, the ICESCR and the CAT accord protections to transgender people.118 Justice Radhakrishnan argued that ‘[d]ue to the absence of suitable legislation protecting the rights of the members of the transgender community’ there would exist a ‘necessity to follow the International Conventions to which India is a party and to give due respect to other non-binding International Conventions and principles’.119 The opinion highlighted that even though Article 253 of the constitution usually assumes that treaties are implemented through legislation and even though the Indian constitution does not contain a supremacy clause like the US constitution, the ‘covenants can be used by the municipal courts as an aid to the Interpretation of Statutes by applying the Doctrine of Harmonization’.120 Moreover, the Court referred to Article 51(c) of the Indian constitution and to prior jurisprudence such as Vishaka to emphasize the relevance of treaties in the domestic order.121 The Court concluded that the treaties, including the Yogyakarta principles, ‘must be recognized and followed’ because they are consistent with Indian constitutional law.122 Against this background, the Court declared that the central and state governments are obliged to grant legal recognition to the gender identity of transgender persons, shall introduce quotas for their

116 117 118 119 120 121 122 114 115

Ibid, paras 2–3. Ibid, paras 21–2. Ibid, para. 22. Ibid, para. 23. Ibid, paras 47–8. Ibid, para. 49. Ibid, para. 51. Ibid, para. 53. Ibid, para. 53.

188

Treaties in parliaments and courts

admission in educational institutions and for public appointments and should facilitate access to medical care and separate public toilets.123 The Court thus drew from international instruments to expand the interpretation of its constitutional provision. Again, the Court formally referred to the principle of consistent interpretation but de facto applied the international instrument directly in the domestic order despite the lack of implementing legislation. In the absence of parliamentary legislation on transgender people, the Court decided to ‘make’ domestic law on transgender issues.124 In this context, the Court was not irritated by the non-binding status of the Yogyakarta principles in international law.125 All international instruments were regarded as sources containing protections for marginalized groups that could be applied in the Indian legal system. Lower courts adopted the Vishaka approach in various cases also in relation to other UN treaties.126

7.5

LIMITED EXPLANATORY POWER OF THE MONISM/DUALISM DISTINCTION

Courts in the four jurisdictions generally prefer to consistently interpret domestic law in light of the treaties, but some decisions directly apply the treaties discussed here. The existing case law is quite heterogenous. In the US, the 1950 Fujii decision of the California Court of Appeals stands out as the sole example of the direct applicability of human rights provisions of an international agreement. In Germany, courts held a few human rights treaty provisions to be self-executing and usually regarded them as mirroring domestic law. In contrast, in India and South Africa, the courts de facto directly applied certain treaty provisions in widely discussed cases. The respective uses of direct application in the four jurisdictions can hardly be explained through the constitutional setup and the conceptual distinction between monism and dualism. In fact, in some cases the constitutional practice even seems to conflict with the constitutional design. In the US, the supremacy clause plainly seems to imply that treaties, as the ‘supreme Law of the Land’, are directly applicable in the domestic order. Thus, one might anticipate more

Ibid, para. 129. In 2019, the legislature finally passed the Transgender Persons (Protection of Rights) Bill: The Transgender Persons (Protection of Rights) Act 2019, 5 December 2019. 125 For critique as ‘puzzling’, Rajamani, ‘Constitutional Schema’, 144; see also Jain, ‘Democratizing Force’, 327. 126 See for instance, in relation to the CRPD High Court of Bombay, Ranjit Kumar Rajak v State Bank of India 2009 (5) BomCR 227, 5 August 2009, www​.legitquest​.com/​ case/​ranjit​-kumar​-rajak​-v​-state​-bank​-of​-india/​468E1; on this Atrey, ‘India’, 201–10. 123 124

Direct application

189

jurisprudence than a singular case accepting self-executing treaty provisions. However, in its judicial application the ‘monist’ US constitution has moved towards a more ‘dualist’ understanding.127 In contrast, in India one would expect no cases of direct application, given its dualist constitutional understanding. In a strictly dualist state, the necessity of implementing legislation renders direct application of treaty provisions impossible.128 However, the Indian Supreme Court de facto directly applied provisions of human rights treaties to develop guidelines for the executive in certain issue areas. While in dualist systems, the judiciary usually interprets the domestic law in light of the treaty only after the executive has ratified and the legislature has implemented the treaty, the Indian Supreme Court in fact interchanged the roles in the Vishaka and Transgender cases: after executive ratification the judiciary implemented the treaty, and only then did the legislature become active. Contrary to the US, one witnesses a move from dualism to monism through the direct application of unincorporated treaties in the Indian legal system.129 Thus, other factors explain the divergent judicial practices. In Germany, the idea of directly applicable treaty provisions had emerged in the jurisprudence of the courts of the Weimar Republic. The courts faced the question of the status of the Versailles Treaty’s detailed provisions in the domestic order.130 To make sense of direct application in German domestic law, some German legal scholars borrowed the term ‘self-executing’ from the US debate.131 Nonetheless, in the inter-war period individuals often did not successfully rely on self-executing treaty provisions, because the treaties primarily contained state-to-state obligations.132 Nowadays, UN human rights treaties are regarded as containing rights for individuals that lend themselves to direct application in the domestic order.133 Accordingly, German courts increasingly recognize the direct applicability of such rules. However, German courts rarely assume that the treaty provisions change the outcome of a case because of the similarity of some human rights provisions to German fundamental rights. 127 On the shift towards a more dualist understanding, I. Wuerth, ‘International Law, Domestic Law, and the United States. Book Review’, AJIL 108 (2014) 116 (117). 128 Sloss and Alstine, ‘Domestic Courts’, 110. 129 Hegde, ‘Courts’, 60; Singh, ‘Treaties’, 64; this phenomenon has been termed ‘creeping monism’ also in relation to other common law jurisdictions: Waters, ‘Creeping Monism’, 628. 130 RG, I 372/26, 18 June 1927. 131 Walz, Völkerrecht, 243–5; on the debate see M. Schäfer, Treaty Overriding. Ein Beitrag zur verfassungsrechtlichen Zulässigkeit abkommensüberschreibender Bundesgesetze (Mohr Siebeck 2020), 90. 132 For early case law see A. Bleckmann, Begriff und Kriterien der innerstaatlichen Anwendbarkeit völkerrechtlicher Verträge (Duncker & Humblot 1970), 20–1. 133 Paulus, ‘Germany’, 211–12.

190

Treaties in parliaments and courts

In the US, the Fujii decision of the California District Court needs to be understood in the context of the legal debates of the early 1950s. According to a long line of legal precedent, the provisions of the California Alien Land Act that prohibited some foreign nationals to own real estate property did not violate the equal protection clause of the Fourteenth Amendment.134 Accordingly, the District Court confirmed the former decisions on the basis of the doctrine of stare decisis.135 Nonetheless, the judges seemed to be concerned about the obvious discriminatory effects of the law for Japanese citizens. Those they chose to rely on treaty provisions. Presumably, the litigation efforts of civil rights groups affected the judicial reasoning. Since the late 1940s, various civil rights groups, such as the American Civil Liberties Union and the National Association for the Advancement of Colored People, had invoked UN Charter provisions on human rights in combination with the supremacy clause to support the legal challenges to racial discrimination in domestic courts.136 Also, human rights-oriented international legal scholars such as Oscar Schachter supported the Court’s holding on the direct applicability of the Charter’s human rights provisions.137 When US courts became more willing to use the US constitution to address racial discrimination,138 the reliance on international standards lost some appeal. In South Africa, the de facto direct application of international agreements in the Glenister II case was also connected to the particular facts of the case. The rather independent Scorpions had been installed as an anti-corruption unit during the presidency of Thabo Mbeki in 1999. The replacement of the Scorpions with the Hawks triggered fears about the futility of the fight against corruption in South Africa. The Scorpions had not shied away from raiding the homes of high-ranking ANC politicians when investigating allegations of corruption in relation to an arms deal concluded in 1999.139 Based on one of these corruption charges, then Deputy President Zuma’s closest financial advisor, Schabir Shaik, was sentenced to 15 years of prison in 2005, with a court referring to ‘overwhelming evidence’ of a relationship of corruption On this Sloss, Death, 209–10. District Court of Appeal, Second District, California, Fujii v State, 217 Pac.(2d) 481, 24 April 1950. 136 Sloss, Death, 188–90. 137 O. Schachter, ‘The Charter and the Constitution: The Human Rights Provisions in American Law’, Vanderbilt Law Review 4 (1950), 643 (653–9). 138 Sei Fujii v State, 38 Cal.2d 718, 17 April 1952. 139 J. Berning and M. Montesh, ‘Countering Corruption in South Africa: The Rise and Fall of the Scorpions and Hawks’, South African Crime Quarterly 39 (2012), 3; on the context see H. Klug, ‘Transformative Constitutions and the Role of Integrity Institutions in Tempering Power: The Case of Resistance to State Capture in Post-Apartheid South Africa’, Buffalo Law Review 67 (2019), 701. 134 135

Direct application

191

between Zuma and Shaik.140 The conviction led to Zuma’s dismissal by President Mbeki and created political turmoil within the ANC.141 After ensuing allegations of overreach on the part of the Scorpions, in December 2007 the ANC decided to replace the Scorpions with a unit under closer executive oversight. Nonetheless, the Constitutional Court upheld the conviction of Shaik in 2008 and once more pointed to evidence that Shaik had paid bribes to Zuma.142 In the same year, the Constitutional Court dismissed President Zuma’s challenge to search warrants against his premises in another corruption case.143 In this context, some Constitutional Court justices even filed a complaint with the Judicial Service Commission because a High Court judge allegedly urged members of the Constitutional Court to decide the case in favour of Zuma.144 The ANC parliamentarians brought the South African Police Service Amendment Bill through parliament undisturbed in late 2008, dismantling the Scorpions and establishing the Hawks.145 The Glenister II case was part of the ongoing political struggle regarding judicial oversight of executive action. The majority opinion based its legal reasoning on the emphasis on independence in international agreements on fighting corruption. Justice Moseneke, the co-author of the majority opinion, included the decision in the list of cases evidencing a conflict between the judiciary on the one hand and the executive and legislature on the other.146 The majority of justices directly applied unincorporated treaty provisions in the domestic legal order, partly because they were concerned about thriving corruption among high-ranking politicians in South Africa. This also explains why the Zuma administration responded critically to the decision. In November 2011, President Zuma, having recovered from his dismissal as Deputy President, pointed to the relevance of the rule of law, the separation of powers and judicial independence in a speech upon the succession of the Chief Justice of the Constitutional Court.147 At the same time, he reminded the

Berning and Montesh, ‘Corruption’, 3. Ibid, 6. 142 S v Shaik 2008 (5) SA 354 (CC), 29 May 2008, para. 44. 143 Thint (Pty) Ltd. v Nat’l Dir. of Pub. Prosecutions 2009 (1) SA 1 (CC), 31 July 2008, para. 225. 144 Ellman, ‘Struggle’, 81. 145 Berning and Montesh, ‘Corruption’, 1. 146 D. Moseneke, ‘A Journey from the Heart of Apartheid Darkness Towards a Just Society: Salient Features of the Budding Constitutionalism and Jurisprudence of South Africa’, Georgetown University Law Center (2012), 27–8, https://​scholarship​.law​ .georgetown​.edu/​cgi/​viewcontent​.cgi​?article​=​1000​&​context​=​hartlecture. 147 Cited after I.M. Rautenbach, ‘Policy and Judicial Review: Political Question, Margins of Appreciation and the South African Constitution’, Journal of South African Law 1 (2012), 20 (20). 140 141

192

Treaties in parliaments and courts

judiciary of the executive’s ‘sole discretion to decide policies for government’ and emphasized that ‘[w]e must not get a sense that there are those who wish to co-govern the country through the courts, when they have not won the popular vote during election’.148 For some observers, ‘South Africa’s courts [found] themselves increasingly called upon to preserve the rule of law without the support of the government as a whole’.149 The direct application of treaty provisions in the Glenister II case occurred as part of the conflict between the different branches. In the Indian context, the 1993 PHRA provides for the application of international human rights law in the domestic order.150 Because the Act defines human rights as ‘the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India’ (Section 2(d) of the PHRA),151 the PHRA may be regarded as opening the door for judicial reliance on the ICCPR and the ICESCR. However, the PHRA seems to be primarily directed at setting up national and state human rights institutions to oversee the authorities’ actions. This explains why, in key cases of direct application (the Vishaka and Transgender cases), the PHRA did not play a major role. Instead, the direct application of treaties and the use of Article 51(c) of the Indian constitution in an ‘expansive and instrumental manner’ stem from their connection to public interest litigation devised for the protection of minorities and the poor.152 The de facto direct application played a key role in public interest litigation cases in which NGOs brought claims in the interest of minorities on the basis of rather loose standing requirements.153 The justices at the Supreme Court used the international instruments as a tool to expand the constitutional protections of discriminated-against groups, such as women and transgender persons, in the domestic constitutional context.154 De facto direct

Ibid, 21. Ellman, ‘Struggle’, 59. 150 C. Masilamani Mudaliar v Idol of Sri Swaminathanswami, (1996) 8 SCC 525, 30 January 1996; High Court of Delhi, Laxmi Mandal v Deen Dayal Harinagar Hospital & Ors, WP(C) Nos 8853 of 2008, and 10700 of 2009 (2010), 4 June 2010; High Court of Delhi, Maken v Union of India, W.P.(c) 11616/2015, 18 March 2019. 151 The Protection of Human Rights Act, 1993, 8 January 1994; International Covenants are defined as the ICCPR and the ICESCR and might entail other Conventions developed by the UN GA in case the Central Government specifies it (Chapter I, Section 2 (f) of the PHRA). 152 Rajamani, ‘Constitutional Schema’, 145; on this Chapter 6.5. 153 Divan, ‘Public Interest’, 668–72. 154 Jain, ‘Democratizing Force’, 320. 148 149

Direct application

193

application of human rights norms contributed to the expansion of fundamental rights protections in India.155 Moreover, through the direct application of treaties, the Court responded to the lack of action by other political branches in relevant policy fields.156 Reliance on international instruments allowed the courts to give detailed instructions to parliament and the executive on how to address certain social issues. Despite the fact that Article 253 of the constitution only vests parliament with the power to pass implementing legislation, the Court de facto implements the treaties intending to not only solve the specific case, but also address the issue for all affected persons. By allowing treaties to ‘enlarge’ the content of constitutional rights, the Court acts on behalf of other institutions and heightens its institutional influence in the domestic system.

Hegde, ‘Courts’, 64–7. Tushnet, ‘Outside’, 1026–7.

155 156

8. Evidence for custom Besides direct applicability and consistent interpretation, domestic courts also cite the treaties discussed here when they assess customary international law. This is not surprising because multilateral treaties, if ratified by a large number of states, might be indicative of the existence of a certain customary rule.1 As the commentary to the International Law Commission’s (ILC) Draft Conclusions on Identification of Customary International Law stresses, ‘treaties that have obtained near-universal acceptance’ and those adopted ‘by an overwhelming majority of states’ are important factors for the evaluation of customary international law.2 The reference to the treaties thus does not mean that courts directly integrate the treaty into the domestic order. Rather, as a first step, domestic courts cite treaties for evaluating whether an international customary norm exists as such, which they might then apply. In the case that the customary rule exists, domestic courts then, in a second step, integrate the rule into the domestic system on the basis of the domestic provisions governing the status of customary international law in the domestic order.

8.1

SCARCE PRACTICE IN GERMANY, SOUTH AFRICA AND INDIA

In German jurisprudence, customary international law is often discussed in the context of sovereign immunity claims without reference to the treaties examined in this study.3 Only in a few cases have German domestic courts engaged with human rights treaties when assessing customary international law.4 In the late 1980s, the Constitutional Court held the right of a non-German speaking 1 See R. Baxter, ‘Multilateral Treaties as Evidence of Customary International Law’, British Yearbook of International Law 41 (1965), 275. 2 ILC, Draft conclusions on identification of customary international law with commentaries, A/73/10, 2018, 143–4. 3 A. Paulus, ‘The Judge and International Custom’, The Law & Practice of International Courts and Tribunals 12 (2013), 253 (262). 4 This case law often stems from the Constitutional Court. The norm verification procedure obliges lower courts to refer matter to the Constitutional Court in case the customary international law status is not settled (Article 100(2) of the Basic Law); the procedure is supposed to guarantee a general and consistent application of custom in the German legal order.

194

Evidence for custom

195

defendant to assistance by an interpreter in oral court proceedings to be part of the minimum human rights standard covered by customary international law.5 In this context, the Court stressed that the ICCPR – with its 80 state parties at the time – recognized such a right.6 Most of the time, the treaties focused upon here are regarded as providing insufficient evidence for a particular customary international rule on which a claimant relies. As early as the 1950s, German courts stressed that certain provisions of the non-binding UDHR, such as the right to education, do not reflect custom.7 In 1987, the Constitutional Court referred to the ICCPR when holding that the principle of ne bis in idem does not prohibit prosecution in Turkey after the claimant had been convicted in an earlier trial in Greece for smuggling drugs.8 The reservations by various states to the ne bis in idem provision in Article 14(7) of the ICCPR would suggest that no customary rule exists that applies the ne bis in idem principle to prosecution in different jurisdictions.9 The Court confirmed this reasoning 20 years later, stating that the ne bis in idem prohibitions in the statutes of the ad hoc tribunals and the ICC would provide no evidence for the emergence of such custom.10 The provisions would be silent about the applicability of ne bis in idem to prosecutions in different jurisdictions.11 As early as 2004, the Constitutional Court had stressed that no universally recognized customary rule protecting the right to property as a human right of a state’s own citizens exists.12 The Court explained that due to tensions between East and West during the Cold War, no right of property had been written into the ICCPR.13 Therefore, one could not assume that a universally applicable customary norm of property protection under human rights law existed.14 The German government had not violated the constitutional duty to respect international law by not annulling the Soviet expropriations on East German territory between 1945 and 1949 after the reunification of Germany.15 All in all, the treaties examined here played a minor role for the evaluation of custom.

7 8 9

Federal Constitutional Court, 2 BvR 1170/83, 21 May 1987. Ibid, para. 13. Federal Administrative Court, II C 105.56, 29 June 1957, para. 49. Federal Constitutional Court, 2 BvM 2/86, 31 March 1987. Ibid, paras 45–62. 10 Federal Constitutional Court, 2 BvR 38/06, 4 December 2007, paras 28–9. 11 Ibid, paras 28–9. 12 Federal Constitutional Court, 2 BvR 955/00, 26 October 2004. 13 Ibid, para. 121. 14 Ibid, para. 121. 15 Ibid. 5 6

196

Treaties in parliaments and courts

Indian courts also rarely cite the treaties discussed here when assessing principles of customary international law.16 However, the 1996 Vellore Citizens’ Welfare Forum v Union of India case, which was referred to the UNFCCC, is regarded as an exemplar for the treatment of custom in Indian jurisprudence.17 In the case, a three-judge bench of the Indian Supreme Court ordered the government to set up an authority to oversee remedies for environmental damage caused by tanneries.18 In this context, the Court argued that the principle of sustainable development, which includes the precautionary principle and polluter-pays principle as ‘essential features’, had become part of customary international law.19 As evidence, the bench referred to the emergence of the concept of sustainable development as a balancing concept between ecology and development at the Stockholm Conference of 1972.20 The Court underlined that the Convention on Biological Diversity and the UNFCCC, which were signed by more than 150 states, reflect the acceptance of sustainable development ‘as a viable concept to eradicate poverty and improve the quality of human life’.21 The Supreme Court thus built on the UNFCCC as evidence for an emerging customary international law principle that shapes the interpretation of domestic environmental law. Even though the decision has been criticized for applying ‘not-so-customary’ international law,22 it demonstrates the willingness of the Supreme Court to draw from international legal rules for interpretations of domestic law.23 Since this case, Indian courts have continued to refer to customary international law without citing the treaties discussed here as an evidentiary base.24 Similarly, in South Africa, the treaties focused upon here did not play a major role for the assessment of customary international law.25 As an excep16 Anderson, ‘Indian Courts’, 21; Hegde, ‘Courts’, 68; L. Rajamani and S. Gosh, ‘India’, in R. Lord, S. Goldberg, L. Rajamani and J. Brunnée (eds), Climate Change Liability: Transnational Law and Practice (CUP 2012), 139. 17 Hegde, ‘Courts’, 61–2; Jain, ‘Democratizing Force’, 323–4. 18 Vellore Citizens’ Welfare Forum v Union of India (1996) 5 SCC 647, 28 August 1996. 19 Ibid. 20 Ibid. 21 Ibid. 22 Rajamani, ‘Constitutional Schema’, 149; Jain, ‘Democratizing Force’, 324. 23 On the crucial role of the case see C. Redgwell, ‘National Implementation’, in D. Bodansky, J. Brunnée and E. Hey (eds), The Oxford Handbook of International Environmental Law (OUP 2008), 923 (931). 24 The case concerned the customary law status of the principle of permanent sovereignty over natural resources: Centre for Public Interest Litigation v Union of India (2012) 3 SCC 1, 2 February 2012, para. 64. 25 In the judicial practice of apartheid South Africa, courts only rarely referred to customary rules: A. Sanders, ‘The Applicability of Customary International

Evidence for custom

197

tion, in National Commissioner of the South African Police Service v Southern African Human Rights Litigation the Constitutional Court stressed that the crime of torture is not only domesticated through the ICC Act but also is ‘law in the Republic in terms of Section 232 of the constitution due to its status as a peremptory norm of customary international law’.26 Citing the CAT and jurisprudence by international courts, the Court put forward that, ‘[c]oupled with treaty obligations’, the prohibition of torture reflects custom as a jus cogens norm.27 Construing the ICC Implementation Act in light of customary law and international obligations would demonstrate that the South African Police Service has the duty to investigate the crime of torture even outside of its territory.28 In Ruta v Minister of Home Affairs, the Court suggested that the principle of non-refoulement is not only enshrined in various universal and regional multilateral treaties but also reflects customary international law.29 Besides pointing to a 2001 declaration of the state parties to the Geneva Refugee Convention on the principle’s customary status, the Court also stressed that by 2018 only 16 of the 193 UN member states had not ratified one of the treaties containing the non-refoulement principle.30 Accordingly, the Court applied the domestic immigration act in light of ‘the continuing obligation not to contravene customary international law and human rights’ as well as existing constitutional safeguards.31 In contrast, the Court expressed a rather cautious approach to the determination of custom when it assessed the principle of sustainable development in Fuel Retailers Association of Southern Africa v Director-General: Environmental Management in 2007.32 Unlike the Indian Supreme Court some ten years earlier, the South African court did not regard the principle to be part of custom when deciding that the environmental authorities had to take into account the environmental impact of a construction project in the context

Law in South African Law – the Appeal Court Has Spoken’, The Comparative and International Law Journal of Southern Africa 11 (1978), 198. 26 National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre 2014 (12) BCLR 1428 (CC), 30 October 2014, para. 77. 27 Ibid, para 35. 28 Ibid, para 61. 29 Ruta v Minister of Home Affairs (CCT02/18) [2018] ZACC 52; 2019 (3) BCLR 383 (CC); 2019 (2) SA 329 (CC), 20 December 2018. 30 Ibid, fn. 76. 31 Ibid, para. 54. 32 Fuel Retailers Association of Southern Africa v Director-General: Environmental Management, Department of Agriculture, Conservation and Environment, Mpumalanga Province and Others (CCT67/06) [2007] ZACC 13; 2007 (10) BCLR 1059 (CC).

198

Treaties in parliaments and courts

of a permit for a gas filling station.33 In its interpretation of Section 24 of the constitution on the right to a healthy environment, the Court emphasized the connection between environmental protection and economic development and the idea of sustainable development in the 1987 Brundtland Report.34 The Court also mentioned that the ICJ had referred to the ‘concept of sustainable development’ in Gabčíkovo-Nagymaros.35 The Constitutional Court stressed that domestic law had to be interpreted in light of the ‘concept of sustainable development’ that ‘provides a framework for reconciling socio-economic development and environmental protection’.36 The Court was hesitant to declare the principle to reflect custom and did not refer to Section 232 of the constitution, probably because only one ICJ judge in Gabčíkovo-Nagymaros had held the concept to be part of ‘modern international law’ in light of the ‘wide and general acceptance by the global community’.37

8.2

ATS LITIGATION IN THE US

In US jurisprudence, US courts often turn to multilateral human rights treaties and international criminal law treaties as evidence for the evolution of custom. In fact, US courts have a ‘leadership role’ in relation to customary human rights law.38 This reliance on custom primarily emerged in the context of civil litigation under the Alien Tort Statute (ATS).39 The ATS grants federal district courts jurisdiction over ‘any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States’. The ATS thus provides victims of violations of international law with the remedy of a tort claim.40 While the idea of jurisdiction for ATS claims on the basis of the law of nations goes back to the Judiciary Act of 1789, for a long time domestic courts based only very few cases on the Act.41 This changed with the Filartiga v Pena-Irala decision of 1980 when the Second Circuit Court awarded a Paraguayan family compensation against a high-ranking Paraguayan police Ibid. Ibid, paras 43–8. 35 Ibid, paras 46–55. 36 Ibid, para. 56. 37 ICJ, Gabčíkovo-Nagymaros Project (Hungary v Slovakia), 25 September 1997, ICJ Reports 1997, 7, 94–5, Separate opinion Weeramantry. 38 Çalı, ‘Comparing Support’, 910. 39 For a rather exceptional reference to custom built on human rights treaties outside of the ATS context, Rodriguez-Fernandez v Wilkinson, 505 F. Supp. 787 (795–7), (D. Kan. 1980), 31 December 1980. 40 Bradley, International Law, 209–37. 41 Bradley mentions two reported decisions that relied on the ATS as a basis for jurisdiction in the first 190 years after its enactment: ibid. 33 34

Evidence for custom

199

officer, for torture committed against one of their family members.42 The decision referred to the UN Charter, the ACHR, the ICCPR and the ECHR as evidence for an international consensus prohibiting torture under international law.43 Moreover, the Court declared that ‘the law of nations […] has always been part of the federal common law’ and therefore falls within the jurisdiction of federal courts under Article III of the constitution.44 The Court applied the ATS because ‘[t]his is undeniably an action by an alien, for a tort only, committed in violation of the law of nations’.45 Building on this jurisprudence, in 1995, in Kadic v Karadzic, the Second Circuit Court held that a cause of action for genocide and war crimes existed under the ATS.46 The Court stressed that the Genocide Convention and Common Article 3 of the Geneva Conventions prohibit genocide and war crimes under international law.47 On this basis, Croat and Muslim victims of atrocities were entitled to bring tort action against the former president of the self-proclaimed republic of Srpska.48 In 2007, in Khulumani v Barclay National Bank Ltd., the Second Circuit Court referred to the emerging international criminal law regime when holding with a two to one majority that multilateral corporations that had done business in apartheid South Africa in principle could be held liable under the ATS.49 Writing for the majority, Judge Katzmann referred to the statutes of the ICTY and ICTR as well as the Rome Statute to show that the concept of liability for aiding and abetting violations of international criminal law exists under customary international law.50 To support his finding, Judge Katzmann emphasized that the ICTY recognized criminal responsibility for aiders and abettors as reflections of customary international law in the Furundžija and Tadić cases.51 Moreover, the judge cited Article 25(3)(c and d) of the Rome Statute, which enshrines

42 Filartiga v Pena-Irala, United States Court of Appeals, Second Circuit, 630 F.2d 876 (2d Cir. 1980), 30 June 1980. 43 Ibid, 883–4.  44 Ibid, 885. 45 Ibid, 887. 46 Kadic v Karadzic, 70 F.3d 232 (2d Cir. 1995), 13 October 1995. 47 Ibid, 241–3. 48 Ibid. 49 Khulumani v Barclay Nat. Bank Ltd., United States Court of Appeals, Second Circuit, 504 F.3d 254, 12 October 2007; on this see K. Hutchens, ‘International Law in the American Courts – Khulumani v. Barclay National Bank Ltd.: The Decision Heard ’Round the Corporate World’, German Law Journal 9 (2008), 639. 50 Khulumani v Barclay Nat. Bank Ltd., United States Court of Appeals, Second Circuit, 504 F.3d 254, 270, 274–7, 12 October 2007. 51 Ibid, 275.

200

Treaties in parliaments and courts

individual criminal responsibility for aiders and abettors.52 In the 2011 Doe v Exxon Mobil Corp. case, the Court of Appeals, District of Columbia Circuit suggested that Article 25(3)(d) of the Rome Statute as well as decisions of the ICC and the ICTY are evidence of a knowledge standard for aiding and abetting with a violation of the laws of nations.53 Exxon Mobil thus, in principle, could be regarded as liable for aiding and abetting with violations of the law of nations by government security forces in Indonesia in the early 2000s even if intent could not be proven.54 The Rome Statute and the jurisprudence of the international criminal tribunals came to be the benchmark for assessing the liability of corporations under the ATS. In other ATS cases, courts dismissed the tort claims because multilateral treaties would not provide enough evidence for the existence of a customary rule on which the claimant relied.55 In particular, the Rome Statute became an argument for limiting ATS litigation against foreign corporations.56 In the 2010 Kiobel v Royal Dutch Petroleum Co. case, the United States Court of Appeals, Second Circuit rejected the class action filed by Nigerian residents against Dutch, British and Nigerian oil corporations for alleged human rights abuses. The Court held that the ATS does not provide jurisdiction for federal courts over claims against corporations.57 In light of the jurisprudence of the Nuremberg Tribunal, the statutes of the ICTY and ICTR and the Rome Statute, the majority judgment written by Judge Cabranes and joined by Judge Jacobs stressed that ‘no international tribunal of which we are aware has ever held a corporation liable for a violation of the law of nations’.58 In particular, the Rome Statute would only grant jurisdiction to ‘natural persons’ even though jurisdiction over corporations had been discussed at the Rome Conference.59 The majority stressed that ‘[h]owever limited the value of the Rome Statute in determining what customary international law is, a demonstrated lack of

Ibid, 275–6. Doe v Exxon Mobil Corp. 654 F.3d 11, 35–8 (DC Cir 2011), 8 July 2011. 54 Ibid. 55 Flores and ors v Southern Peru Copper Corporation, 414 F.3d 233 (United States Court of Appeals, 2d Cir. 2003), 29 August 2003; Presbyterian Church of Sudan v Talisman Energy, Inc, United States Court of Appeals, Second Circuit, 582 F.3d 244, 2 October 2009. 56 According to some observers, ‘the prospects of holding [corporations] liable for violating those norms in US courts have faded nearly to vanishing point’: W. Dodge, ‘Corporate Liability under the US Alien Tort Statute: A Comment on Jesner v Arab Bank’, Business and Human Rights Journal 4 (2019), 131 (137). 57 Kiobel v Royal Dutch Petroleum Co., the United States Court of Appeals, Second Circuit, 621 F.3d 111, 17 September 2010. 58 Ibid, 132. 59 Ibid, 119, 136. 52 53

Evidence for custom

201

consensus amongst its signatories about a particular norm is valuable evidence of what customary international law is not’.60 In the 2018 Jesner v Arab Bank case, the Supreme Court majority held accordingly, by five to four, that the ATS does not encompass jurisdiction for criminal torts against corporations.61 The majority opinion written by Justice Kennedy (joined in part by Chief Justice Roberts and Justices Thomas, Alito and Gorsuch) emphasized that ‘charters of respective international criminal tribunals often exclude corporations from their jurisdictional reach’.62 This would suggest that civil or criminal liability for human rights violations of corporation does not reflect current international law.63 In particular, Justice Kennedy stressed that the statutes of the ICTY and ICTR and the Rome Statute only contain provisions on jurisdiction for natural persons.64 During the negotiations on the Rome Statute, a jurisdictional base for prosecuting corporations was considered but rejected.65 He concluded that ‘[t]he international community’s conscious decision to limit the authority of these international tribunals to natural persons counsels against a broad holding that there is a specific, universal, and obligatory norm of corporate liability under currently prevailing international law’.66 This assessment of custom was by no means uncontroversial. In her dissent, Justice Sotomayor, joined by Justices Ginsburg, Breyer and Kagan, suggested that under the ATS the law of nations may only be used to determine the existence of substantive prohibitions under international law.67 The issue of corporate liability as a mechanism for enforcing the prohibition would be a question of domestic law. Relying on limits in the charters of international criminal tribunals ‘confuses the substance of international law with how it has been enforced in particular contexts’.68 In any case, international law would contain no categorical distinction between liability of corporations and individuals given that the ICTR had held a private radio station, a newspaper and a political party to be responsible for genocide.69 Both the majority as well as the minority thus built their interpretations on the Rome Statute and jurisprudence of international courts.

60 Ibid, fn 16; on the decision of the Supreme Court in Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013) see below Chapter 7.3. 61 Jesner v Arab Bank, PLC, 138 S.Ct. 1386, 24 April 2018. 62 Ibid, 1400. 63 Ibid, 1400. 64 Ibid, 1400–1. 65 Ibid, 1401. 66 Ibid, 1401. 67 Ibid, 1419–23, Dissenting opinion Justice Sotomayor. 68 Ibid, 1423. 69 Ibid, 1423–4; on this see Dodge, ‘Jesner’, 133.

202

8.3

Treaties in parliaments and courts

THE RELEVANCE OF AN EXPLICIT DOMESTIC MANDATE

The broad use of human rights treaties and international criminal treaties as evidence for custom in US jurisprudence contrasts with the very few examples of engagement in German, Indian and South African courts. The different statuses of custom in the four jurisdictions do not explain this difference. Article 25 of the Basic Law stipulates that ‘general rules of international law’, which are regarded to include custom and general principles of law, ‘shall take precedence over the laws’. Thus, custom may override parliamentary legislation.70 In contrast, the South African 1996 constitution explicitly determines in Section 232 that ‘customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament’.71 Similarly, Indian courts do not incorporate custom into the domestic system if it is in conflict with domestic law.72 In Vellore Citizen’s Welfare Forum v Union of India, the Supreme Court stressed that ‘it is almost accepted proposition of law [sic] that the rules of customary international law which are not contrary to the municipal law shall be deemed to have been incorporated in the domestic law and shall be followed by the Courts of Law’.73 In the US, the constitution does not explicitly apply the supremacy clause to custom but only to treaties.74 The Supreme Court held in Paquete Habana that ‘[i]nternational law is part of our law’ subject to a ‘controlling […] legislative act’.75 While the commentator of the Restatement (Third) suggested that ‘arguably later customary law should be given effect as law of the United States, even in the face of an earlier law or agreement, just as a later international agreement of the United States is given effect in the face of an earlier law or agreement’,76 the commentary to the Restatement (Fourth) states that an act of Congress may override customary

70 See already R. Geiger, ‘Zur Lehre vom Völkergewohnheitsrecht in der Rechtsprechung des Bundesverfassungsgerichts’, Archiv des öffentlichen Rechts 103 (1978), 382 (384). 71 Olivier, ‘Status’, 11–12. 72 Hegde, ‘Courts’, 60–2. 73 Vellore Citizens’ Welfare Forum v Union of India (1996) 5 SCC 647, 28 August 1996. 74 On the status of custom in the US legal system Bradley, International Law, 145–73. 75 Supreme Court, The Paquete Habana, 175 US 677, 700 (1900), 8 January 2000. 76 Restatement (Third), § 115, Note 4; on this R. Lillich, ‘Invoking International Human Rights Law in Domestic Courts’, University of Cincinnati Law Review 54 (1985), 367 (368).

Evidence for custom

203

international law.77 Be that as it may, there is no evidence that the frequency of reliance on the treaties addressed here when assessing custom is related to custom’s rank in the respective domestic orders. Rather, the different practices seem to be partly linked to the divergent ratification records. The low ratification in the US in relation to UN human rights treaties may explain why US courts are regarded to play a ‘leadership role’ in relation to customary human rights law.78 While domestic courts in states that ratified a high number of multilateral treaties often rely on the provisions of such treaties, US courts often do not have that option and turn to custom. Most importantly, the US jurisprudence finds its reason in explicit domestic mandate for reliance on custom. The ATS explicitly provides for tort claims in case of ‘violations of the law of nations’. On the basis of the domestic statute, courts engage with human rights treaties and the Rome Statute as evidence for customary law provisions. Also, more conservative judges, who are usually sceptical regarding a broad reach of international law in the domestic order, are willing to relate to custom under these circumstances.79 However, the conflict between more liberal and more conservative judges and justices partly reoccurs in relation to the application of custom. More liberal judges often suggest a rather broad scope for ATS litigation with reference to the treaties discussed here and custom, whereas more conservative judges tend to limit this scope, employing the same interpretative technique.80 While the use of treaties as evidence for this custom in the ATS jurisprudence is not questioned, justices invoked treaty provisions to substantiate arguments in favour of or against corporations’ liability for extraterritorial human rights violations.

77 Restatement (Fourth), § 406, Reporters Notes 3; for the academic controversy see C. Bradley and J. Goldsmith, ‘Customary International Law as Federal Common Law: A Critique of the Modern Position’, Harvard Law Review 110 (1997), 815; M. Ramsey, ‘International Law as Part of Our Law: A Constitutional Perspective’, Pepperdine Law Review 29 (2001), 187; R. Goodman and D. Jinks, ‘Filartiga’s Firm Footing: International Human Rights and Federal Common Law’, Fordham Law Review 66 (1997), 463. 78 Çalı, ‘Comparing Support’, 910. 79 On the scepticism see Chapter 9.4 and 9.5. 80 See Chapter 8.2 and 11.3.

9. Rejection In many jurisdictions, domestic courts rely on international agreements and foreign sources in constitutional reasoning. However, some courts and judges reject the use of treaties as inappropriate for the interpretation of constitutional law.1 Often this rejection pertains not only to treaties but to foreign materials more generally.2 Because international agreements and foreign court practices lack normative force in the home-grown legal system, it would be wrong to cite international courts’ decisions or point to high rates of participation in multilateral treaties as persuasive authority for the understanding of the constitution.3 While these arguments are directed against the use of treaties in constitutional interpretation per se, domestic courts more often explicitly reject a particular decision of an international court or commission. If domestic courts are not convinced by the offered interpretation, they may ignore or deviate from it. Domestic courts may then argue that the interpretation by an international body does not properly fit into the domestic legal order or that an international case should not be a model for a domestic proceeding because of its different context.4 This allows domestic courts to retain the last word on the matter. The reluctance to apply the international standards strongly differs from the rejection of the relevance of foreign sources in the domestic order per se. Generally, these courts accept the relevance of the international decisions in the domestic order and only carve out an exception in the specific case at hand. Nonetheless, the deviation is remarkable because it manifests courts’

1 On the debate in the US see G. Neuman, ‘The Uses of International Law in Constitutional Interpretation’, AJIL 98 (2004), 82; R. Alford, ‘Misusing International Sources to Interpret the Constitution’, AJIL 98 (2004), 57; some controversy also exists in Australia: Sloss and Alstine, ‘Domestic Courts’, 110; some shariah courts feel no need to debate whether it makes sense to engage with international human rights law at all: A. Amoloye-Adebayo, ‘Ideological Barriers to Judicial Dialogue: A Study of the Laws Establishing Sharī‘ah Courts in Malaysia and Nigeria’, in A. Müller and H.E. Kjos (eds), Judicial Dialogue and Human Rights (CUP 2017), 153. 2 See the view of US Supreme Court Judge Justice Scalia as one of the most prominent supporters of this argument: Dorsen, ‘Relevance’, 521. 3 Ibid, 521–2. 4 On contextualization in general see O. Lepsius, ‘Kontextualisierung als Aufgabe der Rechtswissenschaft’, JuristenZeitung (2019), 793.

204

Rejection

205

preference to apply domestic rules rather than international standards in case of conflict.

9.1

SCEPTICISM VOICED IN INDIA

In India, some court decisions reveal a hesitant approach towards international sources. In the 2013 Suresh Kumar Koushal v NAZ Foundation case, which was later overturned,5 the Supreme Court of India set aside a decision of the Delhi High Court that had declared that a statute criminalizing homosexuality violated the constitution.6 The Delhi High Court had referred to various decisions by foreign and international courts and bodies, inter alia the ECtHR and the UN Human Rights Committee, to substantiate its reasoning.7 In contrast, the Supreme Court dismissed the comparative arguments as violating the separation of powers in the Indian constitutional democracy. The Court underlined that ‘[t]hough these judgments shed considerable light on various aspects of this right [of LGBT persons] and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature’.8 The Court referred to an earlier decision on the legal validity of the death penalty in India in which the Supreme Court had expressed doubts about ‘the expediency of transplanting Western experience in our country’.9 Instead, the judiciary should exercise judicial self-restraint in light of the principles of separation of powers and parliamentary democracy.10 In the 2017 Triple-Talaq case before the Indian Supreme Court, the two minority justices dismissed the applicability of human rights law in the case at hand.11 The majority opinion had decided that a man’s divorce from a woman by pronouncing talaq thrice in front of

5 Navtej Singh Johar & Ors v Union of India thr. Secretary Ministry of Law and Justice, Writ Petition (Criminal) No. 76 of 2016, 6 September 2018; Chapter 6.2. 6 Suresh Kumar Koushal & Anr v Naz Foundation & Ors, Civil Appeal No. 10972 of 2013, 11 December 2013. 7 Delhi High Court, Naz Foundation v Government of Delhi, WP No. 7455/2001, 2 July 2009; M. Khosla, ‘Inclusive Constitutional Comparison: Reflections on India’s Sodomy Decision’, American Journal of Comparative Law 59 (2011), 909. 8 Suresh Kumar Koushal & Anr v Naz Foundation & Ors, Civil Appeal No. 10972 of 2013, 11 December 2013, para. 52. 9 Ibid, para. 52. 10 Ibid, para. 26. 11 Bano and Ors v Union of India and Ors, Writ petition (civil), No 118 of 2016, 22 August 2017; on the case see T. Herklotz, ‘Shayara Bano versus Union of India and Others: The Indian Supreme Court’s Ban of Triple Talaq and the Debate around Muslim Personal Law and Gender Justice’, Verfassung und Recht in Übersee 50 (2018), 300.

206

Treaties in parliaments and courts

witnesses was illegal. The argument was largely based on the right to equality under the Indian constitution.12 The minority, nonetheless, felt compelled to respond to arguments of the Attorney General of India who suggested that the practice of divorce through ‘talaq-e-biddat’ violates the ICCPR, ICESCR and CEDAW.13 Dissenting Chief Justice Jagdish Singh Khehar and dissenting Justice S. Abdul Nazeer emphasized that since the Indian constitution granted protection against sex discrimination, ‘there is […] no reason or necessity […] to fall back upon international conventions and declarations’.14 The minority stressed with reference to Article 25 of the Indian constitution that ‘whilst the Constitution of India supports all conventions and declarations which call for gender equality, the Constitution preserves “personal law” through which religious communities and denominations have governed themselves, as an exception’.15 Conventions ratified by India would only be binding to the extent that they are consistent with domestic law, and the ‘talaq-e-biddat’ issue would be a case in point.16 While the minority did not reject the application of international agreements for constitutional interpretation per se, the justices pointed to potentially conflicting superior constitutional law. Moreover, in Mohamad Salimullah v Union of India, the Supreme Court denied the grant of interim relief in a case concerning the deportation of Rohingya refugees from India to Myanmar.17 The claimants based their argument on the non-refoulement principle as part of the right to life (Article 21 of the Constitution). The Court held, however, that because India did not sign the Refugee Convention ‘serious objections are raised, whether Article 51(c) of the Constitution can be pressed into service, unless India is a party to or ratified a convention’.18 Since the non-refoulement principle is often considered to be recognized in customary international law, this reasoning led to severe critique.19 In any case, these decisions did not trigger a general debate in which

12 Bano and Ors v Union of India and Ors, Writ petition (civil), No 118 of 2016, 22 August 2017, Majority opinion, Justices Nariman and Lalit, para. 57; one justice argued that ‘talaq-e-biddat’ is forbidden under Muslim religious law: ibid, Concurring opinion Justice Joseph, para. 10. 13 Ibid, Minority opinion Chief Justice Khehar and Justice Abdul Nazeer, para. 74. 14 Ibid, para. 186. 15 Ibid, para. 187. 16 Ibid, paras 188–9. 17 Mohammad Salimullah v Union of India, Interlocutory Application No.38048 of 2021, 8 April 2021. 18 Ibid, para. 12. 19 Ranjan, ‘Dualism to Monism’, 590; M. Katrak and S. Kulkarni, ‘Refouling Rohingyas: The Supreme Court of India’s Uneasy Engagement with International Law’, Journal of Liberty and International Affairs 7 (2021), 116 (122–3).

Rejection

207

the use of international legal materials in constitutional interpretation was challenged.20

9.2

REJECTING THE ‘MINIMUM CORE’ APPROACH IN SOUTH AFRICA

In apartheid South Africa, judges regularly did not cite multilateral treaties when assessing the legality of the discriminatory practices, likely because South Africa had not ratified the CERD, ICCPR and ICESCR.21 Under the new 1996 constitution, UN human rights treaties played a key role in the evolving jurisprudence of the Constitutional Court.22 However, at times, justices expressed concerns about overly broad reliance on international standards. Justice Kriegler questioned the frequent use of foreign authorities in the early jurisprudence of the Constitutional Court.23 While the South African constitution would invite comparative reasoning, one should always have the South African context in mind and avoid ‘blithe adoption of alien concepts or inapposite precedents’.24 In the AZAPO case in which the Constitutional Court upheld the validity of South African post-apartheid amnesty laws, the Court rejected the applicants’ claim that the amnesty provisions violated international law.25 Before the Court held the provisions of the 1949 Geneva Conventions to be inapplicable to the internal South African situation, Justice Mahomed stressed in the majority opinion that the international legal rules would be ‘irrelevant’ anyhow if the amnesty rules were authorized by the Constitution.26 This seemed to imply that the international legal rules are not capable of influencing the interpretation of certain constitutional provisions.27 Moreover, even though South African courts often referred to the ICESCR in their broad social rights jurisprudence on access to health care, adequate housing, water and education even before South Africa ratified the treaty in

20 On the citation to foreign precedents as ‘routine practice’ in Indian constitutional law Balakrishnan, ‘Precedents’, 15; see also Chapter 6.5. 21 Dugard, ‘Apartheid’, 110. 22 Chapter 6.3.1. 23 Bernstein v Bester, Case No CCT 23/95, 27 March 1995, para. 133. 24 Ibid, para. 133. 25 Constitutional Court, Azanian Peoples Organisation (AZAPO) v President of the Republic of South Africa, CCT 17/96, 25 July 1996. 26 Ibid, para. 28. 27 Moreover, the Court did not assess whether the amnesty provisions violated customary law prohibitions of torture and crimes against humanity: Dugard, ‘International Law’, 89–91; for a critique see also R.C. Blake, ‘The World’s Law in One Country: The South African Constitutional Court’s Use of Public International Law’, South African Law Journal 115 (1998), 668 (672–3).

208

Treaties in parliaments and courts

2015,28 they did not adopt the approach of the CESCR Committee. In the 2000 Grootboom case, the Constitutional Court explicitly dismissed the ‘minimum core approach’ that the Committee had developed in its General Comment No. 3.29 The Court held that Sections 26 and 27 of the South African constitution on the right to access to adequate housing do not grant direct access to a minimum of the relevant goods and services from the state.30 After stressing that Section 39(1)(b) of the constitution requires the Court to consider international law when interpreting the Bill of Rights,31 the Court emphasized the differences between the treaty and the constitution. While the ICESCR speaks of a ‘right to adequate housing’, Section 26 of the South African constitution highlights the ‘right of access to adequate housing’.32 While the ICESCR obliges parties to take ‘appropriate steps’, the constitution obliges South Africa to take ‘reasonable’ measures.33 The Court then deviated from the ‘minimum core’ approach as enshrined in General Comment No. 3, arguing that ‘[i]t is not possible to determine the minimum threshold for the progressive realisation of the right of access to adequate housing without first identifying the needs and opportunities for the enjoyment of such a right’.34 The lack of information before the Court on how to assess a ‘minimum core’ would run against that standard.35 Rather, the Court assessed the rationality of the state’s measures to realize the constitutional rights.36 On this basis, the Court held that while the right to access to housing could not be realized immediately,37 the government programme on housing did not live up to the constitutional promise.38 Accordingly, the Court ordered the government to devise a better housing programme.39 In the Treatment Action Campaign case, the Court built on this reasoning.40 The Court stated that it would be ‘impossible to give everyone access even to 28 M. Ssenyonjo, ‘The Influence of the International Covenant on Economic, Social and Cultural Rights in Africa’, Netherlands International Law Review 64 (2017), 259 (277–9); Chapter 6.3.1. 29 CESCR, General Comment No. 3, The Nature of States Parties’ Obligations, E/1991/23 14 December 1990, para. 10. 30 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), 2000 (11) BCLR 1169 (CC), 4 October 2000. 31 Ibid, para. 26. 32 Ibid, para. 28. 33 Ibid, para. 28. 34 Ibid, para. 32. 35 Ibid, para. 33. 36 Ibid, para. 33. 37 Ibid, paras 94–5. 38 Ibid, para. 96. 39 Ibid, para. 96. 40 Minister of Health and Others v Treatment Action Campaign 2002 (5) SA 721 (CC), 2002 (10) BCLR 1033 (CC).

Rejection

209

a “core” service immediately’.41 Rather, ‘[a]ll that is possible, and all that can be expected of the state, is that it act[s] reasonably to provide access to the socio-economic rights identified in sections 26 and 27 on a progressive basis’.42 In Mazibuko v City of Johannesburg, the Court rejected the ‘minimum core’ approach in the context of the interpretation of the right to water under Section 27(1)(b) of the constitution.43 The Court once more pointed to the wording of the constitution and added that the ‘proper role of courts in our constitutional democracy’ is at stake.44 The Court emphasized that the legislature and executive would be ‘best placed to investigate social conditions in the light of available budgets and to determine what targets are achievable in relation to social and economic rights’.45 Courts should not determine what constitutes ‘sufficient water’.46 Therefore, the Court overturned the decisions of the High Court and Supreme Court of Appeal, which had interpreted the right to water as guaranteeing at least 42 litres per day for each person living in the community.47 According to the established jurisprudence of the Constitutional Court, the ‘minimum core’ approach of General Comment No. 3 is no basis for the interpretation of the South African constitution’s social rights provisions.

9.3

NON-BINDINGNESS OF COMMITTEE DECISIONS IN GERMANY

In Germany, domestic courts do not explicitly reject the possibility to use treaties and foreign sources for the interpretation of the constitution per se. However, some instances of deviation occur, even though they are clearly the exception.48 Generally, the Court emphasizes that in the case of conflict between an international court’s decision and domestic constitutional law, the

Ibid, para. 35. Ibid, para. 35. 43 Mazibuko and Others v City of Johannesburg and Others (CCT 39/09), 8 October 2009. 44 Ibid, para. 57. 45 Ibid, para. 61. 46 Ibid, para. 62. 47 Ibid, paras 25–9; 171. 48 On the relationship to the European Court of Justice see Federal Constitutional Court, 2 BvR 859/15, 5 May 2020; more generally on the conflict see for instance D. Thym, ‘Separation versus Fusion – or: How to Accommodate National Autonomy and the Charter: Diverging Visions of the German Constitutional Court and the European Court of Justice’, European Constitutional Law Review 9 (2013), 391; M. Payandeh, ‘Constitutional Review of EU Law after Honeywell: Contextualizing the Relationship between the German Constitutional Court and the EU Court of Justice’, Common Market Law Review 48 (2011), 9. 41 42

210

Treaties in parliaments and courts

latter prevails. In its Görgülü decision, the Court stressed that ‘[t]he Basic Law aims to integrate Germany into the legal community of peaceful and free states, but does not waive the sovereignty contained in the last instance in the German constitution’.49 Accordingly, the legislature may disregard treaties if ‘this is the only way in which a violation of fundamental principles of the constitution can be averted’.50 In the ensuing jurisprudence, the Court mentioned the ‘limits of the international-law-friendly interpretation of the Basic Law’.51 The case law of the ECtHR needed to be ‘integrated as carefully as possible into the existing, dogmatically [sic, according to official translation] differentiated national legal system’ and ‘an unreflected adaptation of international-law concepts must be ruled out’.52 This position on the primacy of domestic (constitutional) law over international law also found its way into the 2015 Treaty override decision.53 Even though the case does not directly address the domestic status of international jurisprudence, it is evidence for the Constitutional Court’s understanding of the limits of international law in the domestic order. In the decision, the Court once more emphasized that a treaty does not have higher status than statutory law in the domestic order (Article 59(2) of the Basic Law).54 Rather, domestic legislation that is adopted after the entry into force of an international agreement outranks the incorporated treaty (last-in-time rule).55 The Court stressed that the principle of democracy does not allow primacy for treaties in such cases, because ‘subsequent legislatures must be able to revise […] legislative acts undertaken by earlier legislatures’.56 The principle of the Basic Law’s openness to international law ‘does not supersede the varied provisions of the Basic Law governing the rank of the various sources of international law’ in the domestic order.57 While Justice König made a case for a more international law-friendly reading of the constitution in her dissent,58 the majority used the last-in-time rule to give primacy to parliamentary legislation over the international agreement.59 Federal Constitutional Court, 2 BvR 1481/04, 14 October 2004, para. 35. Ibid, para. 35. 51 Federal Constitutional Court, 2 BvR 2365/09, 4 May 2011, para. 93. 52 Ibid, para. 94. 53 Federal Constitutional Court, 2 BvL 1/12, 15 December 2015. 54 Ibid, paras 45–6. 55 Ibid, para. 50. 56 Ibid, para. 53. 57 Ibid, paras 73–5. 58 Federal Constitutional Court, 15 December 2015, 2 BvL 1/12, Separate opinion Justice König. 59 On the last-in-time rule C. Tomuschat, ‘§ 226. Staatsrechtliche Entscheidung für die internationale Offenheit’, in J. Isensee and P. Kirchhof (eds), Handbuch 49 50

Rejection

211

Since the Court emphasized that the Basic Law distinguishes between inviolable and inalienable human rights (Article 1(2) of the Basic Law) and other international law,60 it is not clear whether this reasoning also applies to human rights treaties. However, in the 2018 decision on the strike ban for career civil servants, the Constitutional Court pointed out that, ‘if possible, a conflict with principal values enshrined in the Convention must be avoided’,61 but underlined that the legislature may ignore treaties ‘provided this is the only way to avert a violation of fundamental constitutional principles’.62 The Court distinguished existing ECtHR jurisprudence from the German case concluding that the strike ban does not violate the German Constitution.63 The Court did not cite the ICESCR or views by the ICESCR Committee as a potential barrier to the ban.64 Even though the complaint was partly based on the ICESCR65 and the ICESCR Committee had urged Germany to take measures to ensure that ‘public officials who do not provide essential services are entitled to their right to strike’,66 the Court did not engage with this treaty. It seems that the reliance on the ECtHR decisions in German jurisprudence at times marginalizes the impact of UN human rights treaties on interpretations of domestic law.67 Furthermore, in some decisions the Court limited the scope of decisions by international bodies dealing with human rights. In 2019, the Constitutional Court deviated from the CRPD Committee’s General Comment No. 1.68 The Court held that only the general exclusion of persons with disabilities under full guardianship from elections violates the principle of universal suffrage (Article 38 of the Basic Law) and the prohibition of discrimination on grounds of disability (Article 3(3) Sentence 2 of the Basic Law).69 In this context, the Court addressed the CRPD Committee’s General Comment No. 1 on equal recognition before the law stating that ‘a person’s decision-making ability cannot be a justification for any exclusion of persons with disabilities from exercising

des Staatsrechts der Bundesrepublik Deutschland: Band XI Internationale Bezüge (3rd ed., Müller 2013), para. 44; for a critique M. Payandeh, ‘Grenzen der Völkerrechtsfreundlichkeit. Der Treaty Override – Beschluss des BVerfG’, NJW 2016, 1279. 60 Federal Constitutional Court, 2 BvR 2365/09, 4 May 2011, para. 76. 61 Federal Constitutional Court, 2 BvR 1738/12, 12 June 2018, para. 132. 62 Ibid, para. 133. 63 Ibid, para. 173. 64 Federal Constitutional Court, 2 BvR 1738/12, 12 June 2018, para. 163. 65 Ibid, para. 43. 66 Committee on Economic, Social and Cultural Rights, E/C.12/DEU/CO/5, 12 July 2011, para. 20. 67 Wenzel, ‘Germany’, 325. 68 Federal Constitutional Court, 2 BvC 62/14, 29 January 2019. 69 Ibid.

212

Treaties in parliaments and courts

their political rights, including the right to vote’.70 Before starting the assessment, the Court discussed the role of the Convention in the constitutional order, reiterating its jurisprudence on human rights treaties as interpretative guides for the content and scope of fundamental rights.71 Moreover, the Court distinguished between the weight of the ECtHR jurisprudence and recommendations and General Comments of UN treaty bodies, stressing that these ‘are not binding on international and domestic courts’.72 In particular, the CRPD Committee would have ‘no mandate to issue binding interpretations of the text of the convention’ and to ‘further develop international conventions beyond the agreements and practices of the treaty parties’.73 Nonetheless, domestic courts ‘should address the view of such treaty bodies’ even though they do not ‘have to endorse it’.74 The Court then contrasted the CRPD Committee’s view with the view of the ICCPR Committee. According to General Comment No. 25 to the ICCPR, Article 25 of the ICCPR would allow for exclusion from voting for reasonable and objective grounds.75 The Court highlighted that the CRPD Committee’s General Comment No. 1 is non-binding and conflicts with the view of the ICCPR Committee, and suggested that the CRPD Committee did not properly take into account that Article 12(4) CRPD allows restrictions of a person with disabilities’ legal capacity.76 On this basis the Constitutional Court suggested that persons taking part in elections ‘must have the cognitive skills necessary to make a free and self-determined electoral decision’.77 While the Court discussed the effects of General Comment No. 1 in the German legal order, it dismissed the Committee’s reasoning and advanced its own interpretation as the authoritative understanding of the CRPD provisions.

9.4

OPPOSITION TO TREATIES IN CONSTITUTIONAL INTERPRETATION IN THE US

In the US, a debate about the weight of international and foreign law in constitutional interpretation has been ongoing at least since the late 1990s. The discussion largely unfolded in the context of the interpretation of the prohibition of cruel and unusual punishment under the Eighth Amendment

72 73 74 75 76 77 70 71

CCRPD, General Comment No. 1, CRPD/C/GC/1, 19 May 2014, para. 48. Ibid, para. 62. Ibid, para. 65. Ibid, para. 65. Ibid, para. 65. UN Doc, CCPR/C/21/Rev. 1/Add. 7, para. 4. Federal Constitutional Court, 2 BvC 62/14, 29 January 2019, para. 77. Ibid, para. 72.

Rejection

213

in death penalty cases. As a response to the references to foreign case law and international agreements by the more liberal wing of the Supreme Court as ‘confirmative’ authority in constitutional interpretation,78 some justices – mostly appointed by Republican presidents – questioned the reference to foreign sources in general. This rejection was later expanded to also pertain to unratified treaties. In the 1988 Thompson v Oklahoma case, Justice Scalia’s dissent, joined by Chief Justice Rehnquist and Justice White, sharply criticized references to foreign practices in general.79 Scalia suggested that ‘the views of other nations, however enlightened the Justices of this Court may think them to be, cannot be imposed upon Americans through the Constitution’.80 In his concurrence with the denial of certiorari in Knight v Florida in 1999, Justice Thomas commented that if there were any support in the US constitutional tradition for the prohibition on carrying out the death penalty for prisoners who had spent 20 years or longer on Death Row, ‘it would be unnecessary for proponents of the claim to rely on the European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council’.81 When Justice Breyer invoked a new decision of a Canadian Court to challenge the denial of certiorari in a similar case in 2002, Justice Thomas put forward that the Supreme Court ‘should not impose foreign moods, fads, or fashions on Americans’.82 In the 2002 Atkins v Virginia case, the minority of four justices opposed the holding that the execution of people with intellectual disabilities violates the Eighth Amendment.83 In his dissent, Justice Rehnquist reacted sharply to footnote 21 referring to international standards, asserting that ‘viewpoints of other countries simply are not relevant’ for determining a national consensus on the standard of decency in the Eighth Amendment.84 The rejection of foreign sources also became a theme of opinions of some justices outside of the Eighth Amendment context. In Lawrence v Texas, the majority invalidated a law criminalizing homosexual conduct while referring to foreign practice to substantiate their reasoning.85 The dissenting judges reacted sharply to references to decisions of the ECtHR and other courts. Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, stressed that ‘[c]onstitutional entitlements do not spring into existence […] because

Chapter 6.4. Thompson v Oklahoma, 487 U.S. 815 (1988), 29 June 1988. 80 Ibid, 868, fn 4. 81 Knight v Florida, 120 S. Ct. 459 (1999), Concurring opinion Justice Thomas. 82 Foster v Florida, 537 US 990 (2002), 21 October 2002, fn*, Justice Thomas, Concurring in Denial of Certiorari. 83 Atkins v Virginia, 536 US 302 (2002), 20 June 2002. 84 Justice Rehnquist, Dissenting opinion, 536 US 304 (2002), at 325. 85 Lawrence v Texas, 539 US 558 (2003), 26 June 2003; Chapter 6.4. 78 79

214

Treaties in parliaments and courts

foreign nations decriminalize conduct’.86 According to Scalia, reliance on these foreign views was ‘meaningless dicta’ and even ‘[d]angerous dicta’.87 In the context of the Eighth Amendment jurisprudence, justices with conservative leanings maintained their sceptical view, for instance when responding to the majority holding in Roper v Simmons. This time the reliance on international agreements for constitutional interpretation triggered sharp reactions. The majority suggested that the death sentence for juvenile offenders violates the Eighth Amendment protection against cruel and unusual punishment, citing the CRC and international practice as ‘confirmatory’ for its reasoning.88 In his dissent, Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, criticized the reliance of the majority opinion on Article 37 of the CRC and Article 6(5) of the ICCPR pointing to US non-ratification of the former and the US reservation to the latter.89 He argued that ‘[u]nless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes’ the holding of the majority.90 The constitution would empower the President and Senate to join treaties and their disinclination to do so would suggest that ‘our country has either not reached a national consensus on the question, or has reached a consensus contrary to what the Court announces’.91 More generally, Scalia stressed that ‘the basic premise of the Court’s argument – that American law should conform to the laws of the rest of the world – ought to be rejected out of hand’.92 According to Scalia, the CRC would confirm the majority justices’ ‘own notion of how the world ought to be’ that they would impose on the US constitutional system.93 In his dissent to Graham v Florida in 2010, Justice Thomas, joined by Justice Scalia, reiterated the repudiation of international law’s impact on constitutional interpretation. As Justice Rehnquist’s dissenting opinion in Atkins would have shown, foreign laws are ‘irrelevant to the meaning of our Constitution or the Court’s discernment of any longstanding tradition in this Nation’.94 The conservative wing of the Court was (and is) not willing to accept the reference to foreign sources in general, and treaties in particular, in constitutional interpretation.

Ibid, 598. Ibid, 598. 88 Roper v Simmons, 543 US 551 (2005), 1 March 2005; Chapter 6.4. 89 Ibid, Dissenting opinion Justice Scalia, 622. 90 Ibid, 622. 91 Ibid, 622. 92 Ibid, 624. 93 Ibid, 628. 94 Graham v Florida, 560 US 48, 114 fn 11 (2010), 17 May 2010, Dissenting opinion Justice Thomas. 86 87

Rejection

215

Even the majority opinions on the Eighth Amendment lost some of their international outlook. Younger decisions did not adopt the Roper v Simmons reasoning about the relevance of international consensus for construing ‘cruel and unusual’ punishment under the US constitution. Even though amicus briefs pointed to the relevance of decisions by international authorities for solution of the cases,95 even the liberal justices did not base their reasoning on comparative arguments or international agreements. In the 2012 Miller v Alabama case, the Supreme Court held that mandatory life sentences for homicide without a procedure on possible parole for juvenile offenders violate the Eighth Amendment’s protection on cruel and unusual punishment.96 Writing for the majority, Justice Kagan did not mention practices in other countries but primarily relied on the similarities between the case and the Graham v Florida precedent.97 In contrast to Kennedy’s opinions, Justice Kagan did not attempt to find evidence for an evolving international consensus against such sentencing practices. At the same time, lower courts tend to reject arguments building on human rights treaties as irrelevant to the case at hand.98 With the change in composition of the Supreme Court during the Trump presidency the prospects for references to international legal rules in constitutional interpretation further declined.99 The selection of Neil Gorsuch in 2017, Brett Kavanaugh in 2018 and Amy Coney Barrett in 2020 led to a conservative 6 to 3 majority which is reluctant to engage with treaties. In Trump v Hawai, the Supreme Court upheld President Trump’s travel ban imposing travel restrictions on nationals of Iran, Yemen, Libya, North Korea, Somalia, Syria and Venezuela in a five to four ruling.100 In the litigation before the Supreme Court, some lawyers had pointed to the impact of international human rights law provisions on the case. An amicus curiae brief stressed that the travel ban violates the non-discrimination provisions of the ICCPR and CERD (Article 26 of the ICCPR and Article 2 and 4 of CERD) because no coherent rationale for singling out the particular countries had been advanced.101 Relying on the Charming Betsy canon, the amicus curiae brief pointed to the relevance Spiro, ‘Twilight’, 320. Miller v Alabama, 567 US 460 (2012), 25 June 2012. 97 Ibid. 98 Kalb, ‘Evaluating’, 146. 99 Generally on the role of courts under Trump see J. Kalb and A. Bannon, ‘Courts under Pressure: Judicial Independence and Rule of Law in the Trump Era’, New York University Law Review 93 (2018), 1. 100 Trump v Hawaii, 138 S. Ct. 2392, 26 June 2018; this ban was the third version, which included two non-Muslim countries in its list while dropping Iraq and Sudan: on this, Koh, Trump, 22–30. 101 Amicus Curiae Brief of International Law Scholars and Nongovernmental Organizations in Support of Respondents, Supreme Court, Trump v Hawai, 2–3, 9–17 95 96

216

Treaties in parliaments and courts

of non-self-executing treaties for the interpretation of domestic US law.102 However, in its majority opinion, the Supreme Court reversed the injunction granted by a lower court against the ban without reference to international law.103 Writing for the majority, Chief Justice Roberts held that the travel ban likely does not violate the First Amendment’s Establishment Clause prohibiting the government from preferencing one religion over another.104 While Roberts argued that the policy has ‘a legitimate grounding in national security concerns, quite apart from any religious hostility’,105 he did not mention any possible violation of human rights treaties. Moreover, even the dissenting liberal justices did not cite international (treaty) law to support their arguments but rather focused on violations of the First Amendment.106 In its 2021 Jones v Mississippi decision, the Supreme Court majority accepted life without parole for underaged persons since the sentencing judge had properly exercised his discretion.107 Even though the case concerned the interpretation of the Eighth Amendment, the Convention of the Rights of the Child did not play any role in the reasoning of the Court. What is more, even in her dissent, Justice Sotomayor did not engage with a potential international standard.108 Similarly, in its 2022 Dobbs v Jackson Women’s Health Organization decision, neither the Supreme Court majority nor the minority engaged with human rights law. The majority opinion upheld a 2018 Mississippi state law that banned most abortions after the first 15 weeks of pregnancy since the constitution would not protect a right of abortion.109 Justice Alito’s majority opinion did not mention the UN Human Rights Committee’s General Comment No. 36 that highlighted the right to safe access to abortion under the ICCPR.110 While the dissent pointed to a ‘global trend […] toward increased provision of legal and safe abortion care’, it also did not engage with the Human Rights Committee’s

www​.scotusblog​.com/​wp​-content/​uploads/​2017/​09/​16​-1436​-16​-1540​-bsac​-intl​-law​ -scholars​-and​-NGOs​.pdf. 102 Ibid, 4–6. 103 Trump v Hawaii, 138 S.Ct. 2392, 26 June 2018. 104 Ibid, 2415–23. 105 Ibid, 2421. 106 Trump v Hawaii, 138 S.Ct. 2392, 26 June 2018, Dissenting opinion Justice Breyer; Dissenting opinion Justic Sotomayor; for a critique see M. Cohn, ‘In Upholding Muslim Ban, the Supreme Court Ignored International Law’, 1 July 2018, https://​truthout​.org/​articles/​in​-upholding​-muslim​-ban​-the​-supreme​-court​-ignored​ -international​-law/​. 107 Jones v Mississippi, 141 S. Ct. 1307, 22 April 2022. 108 Ibid. 109 Dobbs v Jackson Women's Health Organization, 597 U.S. ___ (2022), No. 19-1392, 24 June 2022. 110 See UN Human Rights Committee, General Comment No 36, 8.

Rejection

217

practice.111 The ‘utter absence’ of treaties in these decisions demonstrates that the Supreme Court by now seems generally hesitant to introduce international legal arguments in its reasoning.112

9.5

THE US SONDERWEG AND THE CONSERVATIVE LEGAL MOVEMENT

The scope of judicial reluctance to engage with treaties and decisions of international bodies differs quite considerably in the four jurisdictions. In India, some case law warns against putting too much emphasis on international law in particular contexts. Some justices seem to take a cautious approach towards reliance on international legal concepts, pointing to the established jurisprudence on the Indian constitution. In Germany, the Constitutional Court advances the weak normative force of the practice of the treaty bodies as one argument for not following the CRPD Committee’s view.113 The assumption of the non-bindingness of the practice is in line with the jurisprudence of the ICJ and most domestic courts.114 By dismissing the authoritative force of the General Comments, the German Constitutional Court safeguards its last word as interpreter of the Basic Law. In this sense, the Court acts as a ‘gatekeeper’ deciding which decisions of international bodies fit in the domestic legal order.115 However, such cases remain exceptional because the burden of justification for deviation seems higher than for harmonizing domestic law with international decisions.116 In South Africa, the Constitutional Court rejects the ICESCR Committee’s ‘minimum core’ approach in its social rights jurisprudence as a mis-fit for the South African constitutional context. According to the Court, 111 Dissent in Dobbs v Jackson Women's Health Organization, 597 U.S. ___ (2022), No. 19-1392, 24 June 2022. 112 Goldsmith, ‘Koh’, 410; see also Cohn, ‘Ban’. 113 Federal Constitutional Court, 2 BvC 62/14, 29 January 2019, para. 77; for a critique M. Payandeh, ‘Rechtsauffassungen von Menschenrechtsausschüssen der Vereinten Nationen in der deutschen Rechtsordnung’, NVwZ 2020, 125. 114 ICJ, Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), 30 November 2010, ICJ Reports 2010, 639 (664); J. Barkholdt and N. Reiners, ‘Pronouncements of Expert Treaty Bodes: From “Black Boxes” to “Key Catalysts” in International Law?’, KFG Working Paper Series, No. 40, December 2019, 16–17. 115 On the term gatekeeper Paulus, ‘Germany’, 213; in relation to the ECJ, N. Ghazaryan, ‘Who Are the “Gatekeepers”? In Continuation of the Debate on the Direct Applicability and the Direct Effect of EU International Agreements’, Yearbook of European Law 37 (2018), 27. 116 A. Paulus, ‘Engaging in Judicial Dialogue : The Practice of the German Federal Constitutional Court’, in A. Müller and H.E. Kjos (eds), Judicial Dialogue and Human Rights (CUP 2017), 258 (263–4).

218

Treaties in parliaments and courts

the differences in the literal meaning of Sections 26 and 27 of the constitution and the ICESCR call for divergent interpretations.117 Moreover, the rejection of not only the authoritative but also the persuasive force of the international decisions is linked to the specific character of social rights. The South African Constitutional Court argues that the lack of access to information, the varying conditions at the local level and concerns regarding separation of powers speak against adopting a ‘minimum core’ approach.118 The Court assumes that only the executive and legislature are capable and responsible for determining the content of social rights.119 The Court takes the view that it is not competent to decide on the ‘minimum core’ of social rights.120 The US Supreme Court’s refusal to rely on treaties in constitutional interpretation goes far beyond a specific case or issue area but limits the impact of treaty provisions in the domestic order to a considerable degree. This has partly to do with the poor ratification record. Since the United States has ratified only few human rights treaties, consistent interpretation construing domestic law in light of binding international legal obligations is only applicable in few cases. For instance, the cases concerning the death penalty for juvenile offenders evoke protections granted under the CRC, a treaty that the US did not ratify. However, as the more liberal justices’ reliance on human rights treaties demonstrates,121 doctrine alone cannot explain the rejection of foreign and international sources. The treaty-sceptical view is also linked to the professional success of lawyers with conservative leanings. Since the early 1980s, a conservative legal movement had started to organize, rejecting the broad interpretations of constitutional law of the Warren Court era.122 Instead of an expansive reading of the Bill of Rights, members of the Federalist Society for Law and Public Policy Studies pushed for a textual and originalist 117 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), 2000 (11) BCLR 1169 (CC), 4 October 2000, para. 28. 118 On this see O. Fuo and A. Du Plessis, ‘In the Face of Judicial Deference: Taking the “Minimum Core” of Socio-Economic Rights to the Local Government Sphere’, Law, Development and Democracy 19 (2015), 1 (7–10). 119 Government of the Republic of South Africa v Grootboom 2001 (1) SA 46 (CC), 2000 (11) BCLR 1169 (CC), 4 October 2000, para. 28. 120 For critiques of this view, D. Bilchitz, ‘Giving Socio-Economic Rights Teeth: The Minimum Core and its Its Importance’, South African Law Journal 119 (2002), 484; D. Brand, ‘Judicial Deference and Democracy in Socio-Economic Rights Cases in South Africa’, Stellenbosch Law Review 3 (2011), 614. 121 Chapter 6.4. 122 S. Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton University Press 2010), 137–9; A. Hollis-Brusky, Ideas with Consequence: The Federalist Society and the Conservative Counterrevolution (OUP 2015), 1–4; for the Warren era see A. Cox, The Warren Court: Constitutional Decision as an Instrument of Reform (Harvard University Press 2013).

Rejection

219

understanding of the United States constitution.123 Over time the Society became highly influential as a ‘gatekeeper’ for conservative lawyers striving for federal judgeships and government positions under Republican presidents.124 In fact, the justices that expressed the strongest scepticism regarding foreign sources had been appointed by Republican presidents (Justices Scalia and Rehnquist by President Reagan and Justice Thomas by President George H.W. Bush). Justice Scalia had been one of the first faculty advisors to the Federalist Society, and Justice Thomas had been one of its members.125 In the 2000s, the issue of the status of international law in the US domestic order became one of the key topics in debates organized by the Society.126 At a 2003 meeting, various members spoke out against Supreme Court jurisprudence that referred to foreign and international decisions. In response to the majority opinions in Atkins v Virginia, Grutter v Bollinger and Lawrence v Texas, a judge of the United States Court of Appeals questioned the increasing reliance on foreign decisions.127 Judges could only make legitimate decisions if they based their decisions on the US legal tradition instead of ‘wad[ing], sua sponte, into international law’s deep blue sea’.128 Three years later, the society organized a debate on ‘international law and the state of the constitution’ during which various speakers associated with the society expressed their concern that international law might be used to expand constitutional interpretations. John McGinnis decried the ‘comparative disadvantage of customary international law’ with its inbuilt ‘democratic deficit’, and emphasized that ‘America helps the world most by remaining true to her own democratic genius’.129 In 2003, Robert Bork, a former judge and key member of the Federalist Society, characterized the appeal of internationalism as ‘insidious’ in his book with the telling title Coercing Virtue: The World Wide Rule of Judges.130 Bork suggested that the impact of NGOs on human rights entails that ‘international

123 Hollis-Brusky, Ideas, 19–20; T. Keck, ‘The Reagan Revolution to the Present’, in M. Tushnet, A. Graber and S. Levinson (eds), The Oxford Handbook of Comparative Constitutional Law (OUP 2012), 25. 124 Hollis-Brusky, Ideas, 152–5. 125 Devins and Baum, ‘Split’, 341. 126 J. McGinnis, ‘An Opinionated History of the Federalist Society’, Georgetown Journal of Law & Public Policy 7 (2009), 403 (409). 127 J.H. Wilkinson, ‘The Use of International Law in Judicial Decisions’, Harvard Journal of Law and Public Policy 27 (2003), 423. 128 Ibid, 425. 129 J. McGinnis, ‘The Comparative Disadvantage of Customary International Law’, Harvard Journal of International Law and Public Policy 30 (2006), 7 (9, 14). 130 R. Bork, Coercing Virtue: The Worldwide Rule of Judges (Vintage Canada 2003), 22.

220

Treaties in parliaments and courts

human rights law continually moves to the cultural left’ and that ‘international law becomes one more weapon in the domestic culture war’.131 The scepticism about a strong role of international law in the US constitutional system built on academic scholarship emerging since the late 1990s. While the rapporteur of Restatement (Third) on the Foreign Relations Law of the United States, Louis Henkin, had been sympathetic to a relatively robust impact of international law on the domestic legal order, some scholars challenged the common understanding at the turn of the millennium. This group, which has been called the ‘new sovereigntists’ or ‘new realists’, advocated a more sovereignty-oriented view of foreign relations law.132 Courts should in principle ignore treaties unless they have been implemented by the legislature,133 international law should not be used to ‘misinterpret’ the US constitution134 and customary law should not be regarded to have the status of federal common law.135 Even though these arguments were rejected by other scholars136 and legal briefs in domestic proceedings frequently cite international legal sources,137 judicial scepticism regarding international law remains strong.138 Members of the Supreme Court that had been appointed by Republican presidents George W. Bush and Donald Trump publicly expressed concerns about reliance on foreign material. Chief Justice-to-be John Roberts stressed at his 2005 confirmation hearings that ‘[l]ooking at foreign law for support [of its constitutional reasoning] is like looking out over a crowd and picking out your friends’.139 Justice-to-be Samuel Alito dismissed reference to foreign law when interpreting the constitution since ‘[w]e have our own law, we have our own Ibid, 38, 21. P. Spiro, ‘The New Sovereigntists, American Exceptionalism and Its False Prophets’, Foreign Affairs 79 (2000), 9; J. Ohlin, The Assault on International Law (OUP 2015), 8–14. 133 J. Yoo, ‘Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding’, Columbia Law Review 99 (2000), 195. 134 Alford, ‘Sources’, 57. 135 Bradley and Goldsmith, ‘Federal Common Law’, 815. 136 For instance D. Jinks and N. Katyal, ‘Disregarding Foreign Relations Law’, The Yale Law Journal 116 (2007), 1230; Spiro, ‘Sovereigntists’. 137 Kalb, ‘Evaluating’, 144. 138 For the introduction of comparative arguments in court proceedings by conservative NGOs to question ‘progressive’ comparative trends see, however, C. McCrudden, ‘Transnational Culture Wars’, ICON 13 (2015), 434 (455–60); see also J. Kalb, ‘Human Rights Proxy Wars’, Stanford Journal of Civil Rights and Civil Liberties 13 (2017), 53 (74–9). 139 Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States: Hearing Before the Comm. on the Judiciary, 109th Cong., 12–15 September 2005, 201. 131 132

Rejection

221

traditions [and] we have our own precedents’.140 Similarly, Trump nominee Neil Gorsuch declared references to international law in constitutional interpretation to be unnecessary because the US rule of law ‘is still the shining example in the world’.141 Justice Kavanaugh’s judicial record also indicates that he is likely to take a hesitant approach towards employing international legal sources for constitutional interpretation;142 likewise, Amy Coney Barrett seems rather reluctant to endorse international legal arguments in constitutional interpretation.143 Even justices appointed by President Obama and President Biden were cautious about open embrace of the use of foreign law for constitutional interpretation in their confirmation hearings.144 Sonia Sotomayor stressed ‘as a given’ that ‘American law does not permit the use of foreign law or international law to interpret the Constitution’.145 Elena Kagan emphasized that foreign law should not have ‘independent precedential weight’ and stressed the existence of an ‘American constitution which needs to be interpreted by American judges using American sources’.146 Kentanji Brown Jackson highlighted that even though international law is not irrelevant, she did not believe that ‘international law plays a determinative role in interpreting our Constitution’.147 While the justices indicated that they regarded foreign law and international 140 Confirmation Hearing on Samuel Alito to Be Associate Justice of the United States: Hearing Before the Comm. on the Judiciary, 109th Cong. 9–13 January 2006, 370. 141 Confirmation Hearing on Neil M. Gorsuch to Be Associate Justice of the United States: Hearing Before the Comm. on the Judiciary, 115th Cong., 20–23 March 2017, 320. 142 On this see L. Riemer, ‘Trump’s Latest Attack on International Law: How the Nomination of Judge Kavanaugh to the Supreme Court Could Shape the USA’s approach to International Obligations’, 19 September 2018, https://​voelkerrechtsblog​.org/​trumps​ -latest​-attack​-on​-international​-law​-how​-the​-nomination​-of​-judge​-kavanaugh​-to​-the​ -supreme​-court​-could​-shape​-the​-usas​-approach​-to​-international​-obligations/​. 144 On this J. Coyle, ‘The Case for Writing International Law into the U.S. Code’, Boston College Law Review 56 (2015), 433 (443–6); Wuerth, ‘Book Review’, 117; R. Steinhardt, ‘Kiobel and the Weakening of Precedent: A Long Walk for a Short Drink’, AJIL 107 (2013), 841 (845); for a less clear account Spiro, ‘Twilight’, 307. 145 Confirmation Hearing on the Nomination of Sonia Sotomayor to be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Congress, 13–16 July 2009, 132. 146 Confirmation Hearing on the Nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong., 28–30 June and 1 July 2010, 126–7; 155–6. 147 Senator Chuck Grassley, Questions for the Record, www​.judiciary​.senate​.gov/​ imo/​media/​doc/​Judge​%20Ketanji​%20Brown​%20Jackson​%20Written​%20Responses​ %20to​%20Questions​%20for​%20the​%20Record​.pdf.

222

Treaties in parliaments and courts

law as a knowledge reservoir for their decisions, they were cautious not to appear too international law-friendly in light of the political backlash that Roper v Simmons had created. The use of foreign and international law in constitutional interpretation has been a political issue since at least the early 2000s.148 One day after the Roper opinion was published, Republican Member of the House Tom C. Feeney claimed that the Supreme Court ‘has insulted the Constitution by overturning its own precedent to appease contemporary foreign laws, social trends, and attitudes’.149 He stressed that the ‘integrity of our legal process is jeopardized when laws are created by five unelected, life-tenured Justices, with no accountability to the will of the people’.150 Republican Senator John Cornyn suggested that through decisions such as Roper v Simmons the American people might find their say over criminal law given over ‘to the control of foreign courts and foreign governments’.151 Some Republicans in the House and Senate sponsored the Constitutional Restoration Act, which proposes that ‘a court of the United States may not rely upon any constitution, law, administrative rule […] of any foreign state other than English constitutional and common law up to the time of the adoption of the Constitution of the United States’.152 In 2011, 91 Republican co-sponsors in the House supported the draft bill of Representative Sandy Adams prohibiting the ‘misuse of foreign law in Federal Courts’.153 Even though such efforts never gained sufficient support to pass as a law, the reaction highlights how much political salience lies in this question of referring to foreign and international decisions. On the state level, the effort of limiting judicial resort to foreign material received majority support in at least one case: in a 2010 referendum, 70 per cent of the voters of Oklahoma approved the ‘Save Our State’ amendment to the Oklahoma constitution which directs the state’s judges not to consider ‘international law’ in general and ‘Sharia

Kalb, ‘Evaluating’, 146. T. Feeney, ‘Supreme Court Ruling Reiterates Importance of Reaffirmation of American Independence Resolution’, 2 March 2005, https://​votesmart​.org/​public​ -statement/​82909/​supreme​-court​-ruling​-reiterates​-importance​-of​-the​-reaffirmation​-of​ -american​-independence​-resolution​#​.X04Fb3kzaUk. 150 Ibid. 151 Cornyn Introduces Legislation to Keep Foreign Influence Out of U.S. Courts, 21 March 2005, www​.cornyn​.senate​.gov/​content/​cornyn​-introduces​-legislation​-keep​ -foreign​-influence​-out​-us​-courts. 152 S. 520 – Constitutional Restoration Act of 2005, 109th Congress (2005–6), 3 March 2005; see also H.R. 3799 – Constitutional Restoration Act of 2004 – 108th Congress (2003–4), 11 February 2004. 153 H.R. 973, 112th Cong. (2011–12), 9 March 2011. 148 149

Rejection

223

law’ in particular in their rulings.154 Against this background, even more liberal justices have become increasingly hesitant to cite international law.

154 The amendment was later stopped by the Tenth Circuit Court for violating the First Amendment; on this see Kalb, ‘Evaluating’, 146–7.

10. Non-self-execution Domestic courts reject the direct application of treaty provisions in the domestic legal order and declare them to be non-self-executing if the provisions do not fulfil the requirements of direct applicability.1 Whether a rule is self-executing or not partly depends on the character of the international legal rule and the context of its creation. Courts often will not directly apply in the domestic legal order imprecise provisions that require concretization through legislative action.2 Courts may also find a treaty provision to be non-self-executing if the parties to a treaty did not intend to have it directly applied.3 At the same time, the domestic constitutional setup affects the scope of application of the concept. On the one hand, in strictly dualist systems, implementing legislation is a necessary precondition for the transformation of the treaty in the domestic system, making the non-self-execution/self-execution distinction superfluous.4 Only after a treaty has been transformed into the domestic order through implementing legislation is the legislation is applicable as domestic law.5 For courts in strictly dualist states, ‘direct application is not an available option’.6 In contrast, in monist systems, in which international law becomes part of domestic law without prior implementing legislation, the notions of self-execution and non-self-execution play a crucial role for determining the invocability of the provisions in domestic courts. Courts in such systems may either allow or deny a provision entry into the domestic realm. While courts are bound to apply the criteria leading to non-self-execution, one may witness divergent levels of judicial readiness to treat treaty provisions as non-self-executing. Even if no leeway for the justices exists, the application of the doctrine means non-reliance on the treaty provisions in the case at hand. In this sense, the use of the doctrine is an example of judicial reluctance towards incorporating treaties into the domestic order.

On direct application see Chapter 7. Kaiser, ‘Treaties’, para. 16; Hollis and Vásquez, ‘Self-Execution’, 474–6. 3 Foster v Neilson, 27 US (2 Pet.) 253, 314 (1829); on this Restatement (Third), § 111 (4); Restatement (Fourth), § 310 (2). 4 Sloss and Alstine, ‘Domestic Courts’, 110. 5 Ibid, 110. 6 Ibid, 110. 1 2

224

Non-self-execution

10.1

225

BROADENING THE SCOPE OF NON-SELF-EXECUTION IN THE US

While Indian and South African courts did not doctrinally engage with the concept of non-self-executing treaty provisions,7 the practice of declaring provisions of treaties to be non-self-executing is widespread in US courts. In relation to the treaties discussed here, the practice goes back to the early 1950s. In 1952, the Supreme Court of California overturned the Fujii decision of the District Court according to which UN Charter provisions on human rights were directly applicable in the US domestic order.8 The Supreme Court stressed that the human rights provisions of the Charter were ‘not intended to supersede existing domestic legislation’.9 According to the Court, Articles 55 and 56 of the UN Charter ‘lack the mandatory quality and definiteness which would indicate an intent to create justiciable rights in private persons’.10 The provisions may not invalidate the California Alien Land Law, since they would be non-self-executing.11 The Court held instead that the Alien Land Law violates the Fourteenth Amendment to the US Constitution because it is ‘obviously designed and administered as an instrument for effectuating racial discrimination’.12 The decision set the tone for the future of direct applicability of human rights treaties in the domestic order. Since Fujii, no US court has applied international human rights provisions as ‘supreme Law of the Land’ to override state law.13 Even the US ratification of the CERD, ICCPR and CAT in the early 1990s did not change this lack of practice. Because the political branches had attached non-self-execution declarations upon treaty ratification, domestic courts did not apply them directly.14 Two years after ratification of the ICCPR, the United States Court of Appeals, First Circuit briefly mentioned in a footnote that Puerto Ricans could not base a right to vote in US presidential elections on the ICCPR. According to the US declaration, the provisions would be

7 Indian courts treat the idea as a foreign concept: Magambhai Ishwarbhai Patel v Union of India and another, AIR 1969 SC 783, 9 January 1969; Madras High Court, M/S Sony India Ltd v The Commercial Tax Officer, 7 September 2007; in the jurisprudence of South African courts section 231(4) of the constitution plays hardly any role. 8 Sei Fujii v State, 38 Cal.2d 718, 17 April 1952; on the District Court decision see Chapter 7.1. 9 Ibid, 724–5. 10 Ibid, 724. 11 Ibid, 722; 725. 12 Ibid, 737–8. 13 Sloss, Death, 231–8. 14 On the RUDs, Chapter 3.1.3.

226

Treaties in parliaments and courts

non-self-executing.15 In the 2001 Beazley v Johnson decision, the United States Court of Appeals, Fifth Circuit stressed that the ICCPR is non-self-executing and may not affect the legality of the juvenile death penalty in US law.16 The Court pointed to the US reservation attached to Article 6(5) of the ICCPR upon ratification as well as the clear intention of the Senate that Articles 1 to 27 of the ICCPR are non-self-executing.17 Similarly, the Supreme Court majority highlighted in passing in the 2004 Sosa v Alvarez-Machain decision that ‘the Senate has expressly declined to give the federal courts the task of interpreting and applying international human rights law, as when its ratification of the International Covenant on Civil and Political Rights declared that the substantive provisions of the document were not self-executing’.18 Moreover, in Singh v Ashcroft, the United States Court of Appeals, Fifth Circuit emphasized that CAT is not self-executing but only became law in the US through domestic implementing legislation.19 Two years later, the Second Circuit Appeals Court built on this reasoning in the context of deportation of a Haitian citizen to his homeland for criminal conduct.20 The plaintiff argued that while the US authorities had defined torture as an act being specifically intended to inflict severe physical or mental pain or suffering, general intent would suffice under the CAT definition (Article 1 of the CAT leaves this open, speaking of ‘intentionally inflicted’).21 However, the Court highlighted that in relation to the definition of torture, ‘[g]reat deference is owed to the political branches, which guide the nation’s efforts to achieve (and define) domestic compliance and to coordinate with other countries in eradicating torture worldwide’.22 Because CAT would neither be self-executing nor confer enforceable rights on individuals, the implementing legislation on CAT had to guide the assessment of the definition.23 The Senate understanding of torture advanced upon ratification of the treaty had become part of the implementing law. Because the Senate understanding defines torture as specifically intending the infliction of pain,24 the plaintiff’s claim would fail. In the view of the Court, the plaintiff could not rely on CAT directly, but only on the implementing

Igartua De La Rosa v United States, 32 F.3d 8, 10 fn.1., 17 August 1994. Beazley v Johnson, 242 F. 3d 248, 267 (CA5 2001), 9 February 2001. 17 Ibid, 267. 18 Sosa v Alvarez-Machain, 542 US 692, 728, 29 June 2004. 19 Singh v Ashcroft, 398 F. 3d 396, 404, fn. 3 (CA6 2005), 8 February 2005. 20 United States Court of Appeals, Second Circuit, Pierre v Gonzales, 502 F. 3d 109, 11 September 2007. 21 Ibid, 113. 22 Ibid, 114. 23 Ibid, 113. 24 Ibid, 118–19. 15 16

Non-self-execution

227

legislation. The Court did not directly apply CAT because it was bound by parliamentary legislation. Beyond human rights treaties, the majority of justices at the Supreme Court applied the non-self-executing concept also to other US treaty obligations in the so-called Vienna Convention cases.25 According to Article 36(1)(b) of the VCCR, each state party is obliged to inform the home consulate of an arrested foreign national. Since the late 1990s, the majority at the Supreme Court held in a line of decisions that a violation of Article 36(1)(b) of the VCCR does not lead to a stay of execution in death penalty cases.26 In 2008, the Supreme Court built on this jurisprudence in Medellín v Texas.27 The Mexican national Jose Ernesto Medellín was sentenced to death in 1994 for murder by a Texas state court without being informed of his right to consular protection under the VCCR. In 2004, the ICJ decided, in light of US failure to comply with obligations under the VCCR, that a group of 51 Mexican nationals (among them Medellín) were entitled to ‘review and reconsideration’ of the convictions and sentences in the US.28 Responding to the ICJ decision, the Bush administration issued a memorandum asking state courts to give effect to the ICJ judgment and to review the 51 Death Row cases addressed by the ICJ.29 Despite this intervention by the executive, the Supreme Court held by six to three votes that the ICJ judgment is not directly enforceable as domestic law in state courts.30 Writing for the majority, Justice Roberts based the reasoning on the distinction between self-executing and non-self-executing treaties. There would be agreement that the ICJ’s Avena decision creates an international legal obligation for the United States.31 The majority opinion stressed that one should give ‘respectful consideration to the interpretation of an international treaty by an international court with jurisdiction to interpret [the treaty]’;32 however, ‘[t]his Court has long recognized the distinction between treaties that automatically have effect as domestic law, and those that – while they constitute international law commitments – do not by themselves function as binding federal law’.33 25 On this see C. Bradley, ‘Self-Execution and Treaty Duality’, The Supreme Court Review [2008], 131; C. Vázquez, ‘Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties’, Harvard Law Review 122 (2008), 599. 26 Breard v Greene, 523 US 371 (1998), 14 April 1998; also dealing with Article 36(1)b of the VCCR Sanchez-Llamas v Oregon, 548 US 331 (2006), 28 June 2006. 27 Medellín v Texas, 552 US 491 (2008), 25 March 2008. 28 Avena and Other Mexican Nationals (Mex. v US), 31 March 2004, ICJ Reports, p.12. 29 Medellín v Texas, 552 US 491 (2008), 25 March 2008, 503. 30 Ibid, Syllabus. 31 Ibid, 504. 32 Ibid, fn 9. 33 Ibid, 504.

228

Treaties in parliaments and courts

The language of Article 94 of the UN Charter (each member state ‘undertakes to comply with the decision of the ICJ in any case to which it is a party’) would be directed at the political branches and would imply that ICJ decisions receive no immediate legal effect in US courts.34 Referring to earlier case law, Roberts emphasized that ‘[n]othing in the text, background, negotiating and drafting history, or practice among signatory nations suggests that the President or Senate intended the improbable result of giving the judgments of an international tribunal a higher status than that enjoyed by “many of our most fundamental constitutional protections”’.35 Thus, the majority of justices took the view that domestic courts are not obliged to follow ICJ judgments even if they were directed at the US.36 The procedural default rule, according to which federal habeas corpus relief is only possible if procedural errors had been raised in state court, would stand and Medellín’s sentence would not need to be reviewed.37 Medellín v Texas may be understood as reflecting a ‘low point’ of a domestic court’s approach towards an international court.38 More generally, the decision was received as an additional argument for the non-self-executing character of human rights treaties in the US domestic legal order.39 From then on, lower domestic courts also pointed to the Medellín v Texas precedent when holding that the ICCPR was non-self-executing.40

Ibid, 508. Ibid, 523. 36 D. Sloss, ‘Taming Madison’s Monster: How to Fix Self-Execution Doctrine’, BYU Law Review [2015], 1691. 37 Ibid, 523. 38 In relation to another Vienna Convention case, A. Paulus, ‘From Neglect to Defiance? The United States and International Adjudication’, EJIL 15 (2004), 783 (784). 39 O. Hathaway, S. McElroy and S. Solow, ‘International Law at Home: Enforcing Treaties in US Courts’, Yale Journal of International Law 37 (2012), 51 (53); for a general critique L. Damrosch, ‘Medellin and Sanchez-Llamas: Treaties from John Jay to John Roberts’ in D. Sloss, M. Ramsey and W. Dodge (eds), International Law in the U.S. Supreme Court: Continuity and Change (CUP 2011), 451. 40 See for instance Parrish v Commonwealth, 272 S.W.3d 161, 180 (Ky. 2008), 18 September 2008; on this, Kalb, ‘State Courts’, 1052; for other cases in relation to the VCCR, S. Charnovitz, ‘Editorial Comment, Correcting America’s Continuing Failure to Comply with the Avena Judgment’, AJIL 106 (2012), 572. 34 35

Non-self-execution

10.2

229

THE GERMAN LEGAL ORDER AND THE LIMITS OF DIRECT APPLICATION

While German courts regard some provisions of human rights treaties to be self-executing,41 they often reject the direct applicability of such provisions in domestic courts. This concerns foremost treaty commitments that entail social and economic rights.42 In the early 1990s, some domestic courts decided that the ICESCR in its totality is not directly applicable in the domestic order.43 More recently, the decisions focused on singular provisions instead of declaring the whole covenant to be non-self-executing. The Higher Regional Court of North Rhine-Westphalia rejected the direct applicability of a specific ICESCR provision when deciding that the introduction of tuition fees for university students does not violate German and international law.44 The Court argued that the right to free education at universities as enshrined in Article 13 of the ICESCR is not directly applicable in the German legal order because the provision would be too vague.45 In relation to the CRPD, various courts suggested that Article 24 of the CRPD on inclusive education is not self-executing.46 In 2009, the Hessian Higher Administrative Court upheld the allocation of a person with disabilities to a special needs school on the basis that Article 24 of the CRPD is not directly applicable.47 The Court stressed that only the Länder possess the competence to pass legislation that transforms the CRPD provision on education into domestic law.48 Accordingly, the Bund would constitutionally be prohib Chapter 7.2. Krajewski, ‘Beiwerk’, 19. 43 Higher Administrative Court of Baden-Württemberg, 9 S 2163/90, 17 December 1991; Higher Administrative Court of Berlin, 8 B 186.96, 14 July 1998. 44 Higher Administrative Court of North Rhine-Westphalia, 15 A 1596/07, 9 October 2007. 45 Ibid, paras 44–75; the Federal Administrative Court left this issue undecided but confirmed the decision on the basis of consistent interpretation: Federal Administrative Court, 6 C 16/08, 29 April 2009, para. 46. 46 Federal Administrative Court, 6 B 52/09, 18 January 2010, para. 4; Higher Administrative Court of Lower Saxony, 2 ME 278/10, 16 September 2010, para. 14; Higher Administrative Court of North Rhine-Westphalia, 19 E 533/10, 3 November 2010, para. 4. 47 Higher Regional Court of Hesse, 7 B 2763/09, 12 November 2009; for a critique see E. Riedel and J.-M. Arend, ‘Im Zweifel Inklusion: Zuweisung an eine Förderschule nach Inkraftreten der BRK’, NVwZ 2010, 1346; P. Masuch ‘Die UN-Behindertenrechtskonvention anwenden!’, in C. Hohmann Dennhardt, P. Masuch and M. Villiger (eds), Festschrift für Renate Jaeger: Grundrechte und Solidarität (N. P. Engel 2011), 245. 48 Higher Regional Court of Hesse, 7 B 2763/09, 12 November 2009; para. 7. 41 42

230

Treaties in parliaments and courts

ited to adopt legislation on the matter.49 Since the legislator on the state level had not taken action, the CRPD provision on inclusive education had not been transformed into the domestic order.50 Moreover, unlike customary law under Article 25 of the Basic Law, treaties would not automatically become part of the domestic legal order.51 A treaty provision could only be directly applicable if it – according to its literal meaning, object, and content – would be capable of triggering direct legal effects.52 Article 24 of the CRPD would lack the necessary precision since the provision does not dictate how to achieve the goal of inclusive education.53 Thus, the Court saw no space for direct applicability.54 Building on this case, the Higher Regional Court of North Rhine-Westphalia held in 2023 that Article 24 of the CRPD would not grant a subjective right to receive travel costs to school.55 The provision would not contain an unconditional legal obligation for the state to pay such costs.56 The non-self-execution jurisprudence was also applied to certain CRC and CEDAW provisions. In 2012, the Higher Administrative Court of Lower Saxony decided in the context of a potential deportation of a minor to Kosovo that certain provisions of the CRC are not directly applicable in the German legal order and grant no subjective rights to individuals.57 The Court stressed that Articles 3(2), 6(2) and 22 of the CRC would not pass the threshold for direct applicability even after the revocation of Germany’s interpretative declaration to the CRC in 2010 and even though the CRC had been transformed into domestic law through the approval law.58 The provisions would only contain obligations for the state parties, allowing for wide discretion on how to implement them.59 In particular, the obligation to give priority to the best interests of the child (Article 3(1) of the CRC) would not grant subjective rights to the individual because the provision would be directed at public insti-

Ibid, para. 7. Ibid, para. 21. 51 Ibid, para. 26. 52 Ibid, para. 28. 53 Ibid, paras 29–31. 54 After the legislature of the state had passed a law on inclusive school education, the same Court once more rejected the direct applicability of the CRPD provisions on inclusive education; Higher Administrative Court of Hesse, 7 A 1138/11.Z, 16 May 2012, para. 14. 55 Higher Regional Court of North Rhine-Westphalia, 19 A 2181/22, 26 April 2023. 56 Ibid, paras 8–12. 57 Higher Administration Court of Lower Saxony, 8 LA 209/11, 2 October 2012. 58 Ibid, paras 13–14; 16. 59 Ibid, para. 25. 49 50

Non-self-execution

231

tutions.60 Likewise, in 2017, the Regional Labor Court of Lower Saxony held that Article 11(2)(b) of CEDAW, which calls on states to introduce maternity leave with pay without loss of employment, is not directly applicable.61 The provision would envision implementing measures of the state parties and thus not create direct rights.62 According to German domestic courts, various social rights granted under the ICESCR, CRPD, CRC and CEDAW are not directly applicable. Aside from these cases concerning certain provisions of human rights treaties, German courts also reject the direct applicability and invocability of climate change treaties.63 After Germany had ratified the Kyoto Protocol as an Annex I country in 2002, domestic courts started to mention the Protocol but often dismissed its impact on the case in question. In 2009, the Higher Administrative Court of Hesse ruled that Germany’s goals under the Kyoto Protocol do not prohibit the expansion of Frankfurt airport dismissing the contention that the expansion would lead to a violation of these goals.64 In passing, the Court stressed that the plaintiff could not rely on the Protocol because it would not convey a private cause of action to reduce greenhouse gases.65 In 2014, the Bavarian Higher Administrative Court held that building a third runway for Munich airport does not violate rules on climate change protection.66 While the impact on the local climate had been addressed in the environmental impact assessment during the administrative procedure, the projects’ negative global climate impact could hardly be measured and thus did not need to be included in the assessment.67 Moreover, ‘as far as reference is made to the objectives of the so-called Kyoto Protocol […] it should be noted that this international agreement cannot convey a subjective public right [subjektives öffentliches Recht] to the reduction of greenhouse gases’.68 In 2019, the Berlin Administrative Court decided on the claim of German farmer families requesting the Court to order the government to take additional measures to reach its goal of reducing greenhouse gas emissions by 40 per cent by 2020 compared to 1990s levels.69 The Court held the government’s 73–4. 62 63 64 65 66 883. 67 68 69 60 61

Ibid, paras 31–2. Regional Labour Court of Lower Saxony, 13 Sa 399/16, 29 March 2017, paras Ibid, para. 74. Koch, Lührs and Verheyen, ‘Germany’, 416. Higher Administrative Court of Hesse, 11 C 227/08, 21 August 2009, para. 1053. Ibid, para. 1053. Higher Administrative Court of Bavaria, 8 A 11.40040, 19 February 2014, para. Ibid, paras 884–6. Ibid, para. 887. Administrative Court of Berlin, 10 K 412.18, 31 October 2019, paras 1, 25.

232

Treaties in parliaments and courts

climate protection programme to be judicially reviewable but dismissed the claim as inadmissible.70 The claimants failed to show that a subjective public right (subjektives-öffentliches Recht) might have been violated since there existed no legal obligation on the part of the federal government to take further climate mitigation measures.71 According to the Court, the cabinet decision on the climate protection programme represents a mere ‘political declaration of intent, but does not contain any legally binding regulation with external effect that the plaintiffs could rely on’.72 Moreover, in the view of the Court, the plaintiffs did not properly substantiate that the government violated the obligation to protect the farmers’ health and life.73 In this context, the Court turned to treaties to show that even if Germany missed the 40 per cent target, this would not violate the constitutionally required minimum level of climate protection.74 The Court pointed to the obligations under the UNFCCC, the Kyoto Protocol and the Paris Agreement, highlighting that the EU promised a 20 per cent reduction by 2020 for the second Kyoto commitment period – which, however, did not enter into force.75 The Court stressed that under the Paris Agreement the EU promised a 40 per cent reduction only by 2030.76 Also, in 2007 – the first point at which the German government supported the 40 per cent goal – the Intergovernmental Panel on Climate Change and the Bali Plan of Action recommended greenhouse gas emission reductions of 10–40 per cent by 2020 for developed countries. Compared to this international practice, the German target of 40 per cent would be ambitious and would not violate the constitutionally required minimum even if it were missed by 8 per cent.77 Furthermore, since the 2009 EU Effort Sharing Decision authorizes flexibility in reaching the national commitments by allowing member states to transfer up to 5 per cent of their emissions to other member states,78 an individual could not enforce the EU decision directly before domestic courts.79 While the Court did not explicitly address the issue of direct applicability of the Kyoto Protocol, it did not regard the international standards as obliging the government to take more assertive action.

72 73 74 75 76 77 78 79 70 71

Ibid, paras 45–9. Ibid, paras 53–5. Ibid, para. 56. Ibid, paras 68–84. Ibid, paras 81–2. Ibid, para. 82. Ibid, para. 82. Ibid, para. 82. Article 3.4 406/2009/EC. Administrative Court of Berlin, 10 K 412.18, 31 October 2019, para. 94.

Non-self-execution

10.3

233

BETWEEN MONIST AND DUALIST PRECEPTS AND JUDICIAL ATTITUDES

Frequent references to the notion of non-directly-applicable treaty provisions in German and US jurisprudence can be juxtaposed with a complete lack of practice in India and South Africa. Monism and dualism partly explain the divergence. The Indian Supreme Court’s dualist understanding of the Indian constitution renders the distinction between self-executing and non-self-executing treaty provisions superfluous.80 In a dualist state, all treaty commitments are non-self-executing because implementing legislation is by definition the precondition for their applicability.81 Accordingly, even though Indian courts may use the notion of consistent interpretation to de facto directly apply international agreements,82 Indian courts do not declare treaty provisions to be not directly applicable or non-self-executing. In contrast, US courts frequently use the non-self-execution concept because the supremacy clause, which is often associated with monism, generally allows for the direct applicability of treaty provisions. Because treaties are recognized as ‘supreme Law of the Land’, courts need to position themselves on whether a provision is self-executing or not.83 However, the distinction between monist and dualist constitutional understandings only partly explains the divergence in jurisprudence. The self-execution/non-self-execution dichotomy also features in German court practice even though the German Constitutional Court understands the constitution to reflect a (moderate) dualist conception.84 According to the Court, the Basic Law is premised on ‘the classic idea that the relationship of public international law and domestic law is a relationship between two different legal spheres’.85 Nonetheless, German courts often discuss whether treaty provisions are directly applicable. German courts recognize treaty provisions’ potential direct applicability under certain conditions since the 1920s.86 It seems likely that Article 4 of the Weimar constitution contributed to this understanding. 80 On the dualist understanding Jolly George Verghese & Anr v The Bank of Cochin on 4 February 1980; 1980 AIR 470, 1980 SCR (2) 913. 81 Sloss and Alstine, ‘Domestic Courts’, 86, 110; D. Sloss, ‘Domestic Application of Treaties’, in D. Hollis (ed.), The Oxford Guide to Treaties (OUP, 2nd ed. 2020), 355; L.-A. Duvic-Paoli, ‘Environmental Law and Public International Law’, in E. Lees and J. Vinuales (eds), The Oxford Handbook of Comparative Environmental Law (OUP 2019), 1160 (1167). 82 Chapter 7.4. 83 Verdier and Versteeg, ‘International Law’, 522–3. 84 On this see Chapter 7.2. 85 Federal Constitutional Court, 2 BvR 1481/04, 14 October 2004, para. 34. 86 RG, I 372/26, 18 June 1927.

234

Treaties in parliaments and courts

According to the provision, ‘[t]he universally recognized rules of international law are accepted as integral and obligatory parts of the law of the German Reich’. Even though the provision was understood to primarily apply to customary law,87 some commentators linked the provision to treaties.88 In any case, today’s courts often opt for stressing the non-self-executing character of the provisions.89 Because of the relatively open-ended language of some social rights, German courts assume that the obligations need to be concretized through the legislature. In South Africa, courts do not debate the notion of non-self-executing treaty provisions despite Section 231(4) of the constitution.90 During apartheid, South African courts followed the dualist British approach according to which only parliament may incorporate international law into the domestic order.91 The 1993 interim constitution leaned towards a monist approach on treaty incorporation enabling parliament to explicitly provide for international agreements’ status as domestic law in the context of parliament’s consent to ratification (Section 231(3) of the interim constitution).92 However, government departments were reluctant to present treaties for parliamentary approval, fearing the consequences of uncontrolled direct applicability.93 Accordingly, the final 1996 constitution explicitly emphasizes the necessity of an implementing law for transformation (first part of Section 231(4) of the Constitution). This legacy arguably leads judges to focus on this first part of Section 231(4) of the constitution according to which ‘any international agreement becomes law in the Republic when it is enacted into law by national legislation’. In contrast, the second part of the provision on self-executing treaty provisions is often ignored.

87 M. Wenzel, Juristische Grundprobleme. Erste Abhandlung: Der Begriff des Gesetzes. Zugleich eine Untersuchung zum Begriff des Staates und Problem des Völkerrechts (Dümmler 1920), 480–1; nach Walz, Völkerrecht, 389. 88 F. Stier-Somlo, Deutsches Reichs- und Landesstaatsrecht I (De Gruyter 1924), 343. 89 For a case dismissing the direct applicability of the Budapest Convention on Cybercrime, Federal Constitutional Court, 2 BvR 637/09, 21 June 2016, para. 13. 90 Generally on this, Dugard and Coutsoudis, ‘Place’, 81–6. 91 Pan American World Airways Incorporated v SA Fire and Accident Insurance Co Ltd., 1965 3 ALL SA 24 (A), 1 April 1985, 28. 92 Section 231(3) of the interim constitution states: ‘Where Parliament agrees to the ratification of or accession to an international agreement under subsection (2), such international agreement shall be binding on the Republic and shall form part of the law of the Republic, provided Parliament expressly so provides and such agreement is not inconsistent with this Constitution’; on this Olivier, ‘Status’, 6–11. 93 Dugard, ‘International Law’, 81–3; ibid, ‘South Africa’, 450–3; Harrington, ‘Scrutiny’, 143–6.

Non-self-execution

235

In the US, the supremacy clause declares that treaties have supremacy over state law. Accordingly, courts often need to determine whether the supreme treaty provisions are self-executing or non-self-executing. However, this does not explain the prevalence of the notion of non-self-execution in US jurisprudence. In the 1950s, the political opposition to a broad relevance of human rights provisions in the US legal order placed the self-executing concept under pressure. In response to the District Court’s Fujii decision,94 Republican Senator Homer Ferguson warned that the effect of the UN Charter ‘may be to nullify or make void all statutes in any State in relation to distinctions made between the sexes’.95 The Bricker Amendment, which was supposed to limit the supremacy clause and uphold the independence of states, was partly directed against the possible invalidation of laws on racial segregation throughout the South on the basis of international human rights provisions.96 The controversial debate of the 1950s is evidence of the fear among some American lawyers that international standards may encroach upon US domestic law and legal traditions. Since the 1970s, Democratic and Republican administrations have attached non-self-executing declarations to human rights treaties, hoping this might facilitate Senate advice and consent.97 Accordingly, the CAT, ICCPR and CERD, which have been ratified by the US, may not be applied by courts directly as the ‘supreme Law of the Land’.98 Furthermore, the Supreme Court’s expansion of the non-self-execution concept to areas where similar explicit declarations have not been made once more sheds light on the ideological divide between justices with liberal and conservative leanings. Republican presidents had appointed the six majority justices of the Medellín v Texas case,99 while Democratic presidents had appointed two of the three minority justices.100 As in Roper v Simmons, the political socialization of the justices affected their positions. As a key difference, this time the ‘swing vote’ – Justice Kennedy, a Reagan appointee, and Justice Stevens, a Ford appointee – sided with the conservative majority. The majority opinion’s narrow reading of the notion of self-executing treaty provisions thus is linked to the general rejection of foreign and international 94 For a critique of the decision for principled reasons, M. Hudson, ‘Charter Provisions on Human Rights in American Law’, AJIL 44 (1950), 543 (545). 95 Cited after Sloss, Death, 210. 96 Golove, ‘Treaty-Making’, 1273–4; Sloss, Death, 210; on this Chapter 2.1.1. 97 Sloss, ‘Domestication’, 139–40. 98 Neuman, ‘Uses’, 86. 99 Justice Roberts, joined by Justices Scalia, Kennedy, Thomas and Alito, wrote the majority opinion, while Justice Stevens concurred. 100 Justice Breyer, joined by Justices Souter and Ginsburg, dissented. Justice Souter was appointed by Republican President George H.W. Bush but often joined the more liberal justices.

236

Treaties in parliaments and courts

sources for constitutional interpretation by justices appointed by Republicans and close to the Federalist Society.101 Accordingly, it is no surprise that the Federalist Society also took an interest in Medellín v Texas. At the Annual Federalist Society Student Symposium, Texas Solicitor General Ted Cruz, who had represented the state of Texas in Medellín v Texas before the Supreme Court, presented his view of the case. According to Cruz, Texas had ‘vigorously defended US sovereignty, separation of powers and federalism’ by successfully litigating the case.102 With reference to the treaty boom since the 1990s, Cruz suggested that ‘[t]he creep of international law, and the asserted authority of international tribunals, will pose one of the greatest challenges of coming decades’.103 According to him, ‘there will remain a continued need to defend our sovereignty, and our structural limitations on government, so as to preserve our liberty’.104 While this view is indicative of a particularly strong rejection of the evolving international law, the majority of the Supreme Court justices shared Cruz’s scepticism regarding a broad scope for the self-execution doctrine.

Chapter 9.5. T. Cruz, ‘Defending US Sovereignty, Separation of Powers, and Federalism in Medellin v Texas’, Harvard Journal of Law & Public Policy 33 (2010), 25 (25). 103 Ibid, 35. 104 Ibid, 35. 101 102

11. Non-justiciability Domestic courts may employ the notion of non-justiciability to avoid deciding on issues of foreign policy.1 Courts may hold a case to be non-justiciable when they regard a claimant to have no standing or when they consider a case to concern a political question.2 While some jurisdictions reject the political question doctrine, it plays a role in others such as Uganda, Nigeria and Ghana and is debated vigorously in the United States.3 Its historical origin is often traced back to the statement of Chief Justice John Marshall in Marbury v Madison that ‘questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court’.4 As this statement indicates, there exist certain issues in a political system that are too politically charged for courts to adjudicate because a decision would create conflicts with the political branches which are better suited to address the policy issue.5 Accordingly, the political question doctrine is related to the idea of the separation of powers between the judiciary on the one hand and the legislative and executives on the other hand.6 Bradley, International Law, 2–6. For the US see ibid, 3–6; M. Paus, Der U.S. Supreme Court als ‘Hüter des Kongresses’? Das checks and balance-System im Bereich der auswärtigen Gewalt vor dem Hintergrund des Ansatzes des BVerfG (Nomos 2015), 183–220; on other doctrines such as ripeness and mootness see S. Schwinn, ‘Limits on Access to Judicial Review’, Max Planck Encyclopedia of Comparative Constituional Law (January 2017), paras 33–5. 3 M. Mhango, ‘Separation of Powers and the Application of the Political Question Doctrine in Uganda’, African Journal of Legal Studies 6 (2014), 249; on the debate R. Barkow, ‘More Supreme than Court: The Fall of the Political Question Doctrine and the Rise of Judicial Supremacy’, Columbia Law Review 102 (2002), 237; J. Choper, ‘The Political Question Doctrine: Suggested Criteria’, Duke Law Journal 54 (2004), 1457. 4 Marbury v Madison, 5 US 137, 170 (1803), 24 February 1803. 5 M. Tushnet, ‘Law and Prudence in the Law of Justiciability. The Transformation and Disappearance of the Political Question Doctrine’, North Carolina Law Review 80 (2002), 1203; Barkow, ‘Political Question Doctrine’, 319–37. 6 A. Endicott, ‘The Judicial Answer? Treatment of the Political Question Doctrine in Alien Tort Claims’, Berkeley Journal of International Law 28 (2010), 537 (539); for a justification see J. Nzelibe, ‘The Uniqueness of Foreign Affairs’, Iowa Law Review 89 (2003), 941; for a rejection T. Franck, Political Questions – Judicial Answers: Does the Rule of Law Apply to Foreign Affairs? (Princeton University Press 1992); M. Glennon, ‘Foreign Affairs and the Political Question Doctrine’, AJIL 83 (1989), 814. 1 2

237

238

Treaties in parliaments and courts

According to standing doctrines, the plaintiffs need to demonstrate that they have a direct interest in the case at hand.7 While some jurisdictions provide for relatively easy access to courts, the standing rules in other jurisdictions are more restrictive.8 Like the political question doctrine, standing requirements are often linked to assumptions about the proper separation of powers and the role of courts vis-à-vis the political branches.9 This chapter addresses the use of the notion of non-justiciability in the courts of the four jurisdictions. Rather than only looking at cases in which the political question doctrine or standing doctrines have been explicitly mentioned, it also engages with cases that argue for executive discretion and a limited role of courts in foreign relations with reference to separation of powers concerns.10

11.1

THE STRONG ROLE OF INDIAN COURTS IN FOREIGN AFFAIRS

In India, the courts do not employ standing doctrines or a political question doctrine to reject deciding on cases concerning foreign policy. In fact, the Indian Supreme Court is known for its rather lax standing requirements in the context of public interest litigation that enables third parties to bring claims on behalf of affected individuals or groups.11 Moreover, in Roy v Union of India, the Supreme Court of India held that ‘the doctrine of the political question was evolved [sic] in the United States of America on the basis of its Constitution which has adopted the system of a rigid separation of powers, unlike ours’.12 Even though the Court suggested that the doctrine may be used as ‘a tool for maintenance of governmental order’,13 there are no cases in which the doctrine is used to limit judicial decisions.14 9

Schwinn, ‘Limits’, para. 19. Ibid, paras 20–32. See for instance ibid, paras 31–2. 10 For deference in foreign affairs T. Giegerich, ‘Verfassungsgerichtliche Kontrolle der auswärtigen Gewalt im europäisch-atlantischen Verfassungsstaat: Vergleichende Bestandsaufnahme mit Ausblick auf die neuen Demokratien in Mittel- und Osteuropa’, ZaöRV 57 (1997), 410 (459–63); J. Arato, ‘Deference to the Executive: The US Debate in Global Perspective’, in H. Aust and G. Nolte (eds), The Interpretation of International Law by Domestic Courts: Uniformity, Diversity, Convergence (OUP 2016), 189. 11 Schwinn, ‘Limits’, paras 21–5. 12 A. K. Roy, Etc v Union of India and ANR 1982 AIR 710, 1982 SCR (2) 272 (1981). 13 Gurudevdatta VKSSS Maryadit v State of Maharashtra, AIR 2001 SC 1980. 14 W. Husain, The Judicialization of Politics in Pakistan: A Comparative Study of Judicial Restraint and its Development in India, the US and Pakistan (Routledge 2018), 92. 7 8

Non-justiciability

239

Accordingly, Indian courts do not shy away from taking a position on the competences of the branches in foreign affairs. In the late 1960s, the Supreme Court emphasized the broad powers of the central government when it comes to treaty-making and the implementation of a decision by an arbitral tribunal.15 In the 1994 P.B. Samant v Union of India case, the Bombay High Court stressed that the government may conclude treaties without involvement of the state legislature even if the issues concern matters on the state list.16 In 2003, the Supreme Court once more emphasized that the treaty-making power is vested with the executive.17 Beyond this, in Vishaka v State of Rajasthan, the Supreme Court drew from human rights treaties to develop and ‘legislate’ guidelines concerning certain issue areas even where parliament had not passed an implementing law.18 Rather than emphasizing the limits of the judicial role, the Court arrogates powers to itself that usually are of a legislative character. Nonetheless, Indian courts assume that there exist (minor) limits for constitutional adjudication. In a 2019 decision on the role of the CAT in the Indian legal order, the Supreme Court did not further expand its Vishaka jurisprudence.19 The plaintiff asked the Court to order the government to enact comprehensive legislation against custodial torture.20 The Court, however, dismissed the plaintiff’s case after making general observations about the evolution of the doctrine of separation of powers.21 Even though the Court conceded that it had ‘“legislated” beyond what can be strictly construed as pure interpretation or judicial review’ in cases such as Vishaka v State of Rajasthan, the Court stressed that this had only been done to guard fundamental rights from gross violations and on an interim basis ‘to fill the vacuum until the legislative takes upon it to legislate’.22 In contrast, it would exceed the power of the judiciary to ‘enforce its opinion’ of the best law on the legislature.23 Also, the executive could not be ordered to ratify CAT, because ‘[i]t would virtually amount to issuing directions to enact laws in conformity with the UN Convention,

15 Maganbhai Ishwarbhai Patel v Union of India, AIR 1969 SC 783, 9 January 1969; on further early cases see Hegde, ‘Courts’, 62–4. 16 High Court of Bombay, P.B. Samant v Union of India, AIR 1994 Bom 323, 5 April 1994. 17 Union of India and Anr v Azadi Bachao Andolan and Anr, Appeal (civil) 8161–8162 of 2003, 7 October 2003; see also High Court of Delhi, Shiva Kant Jha v Union Of India & Ors, WP (C) No. 1357 of 2007, 11 November 2009. 18 Vishaka v State of Rajastan, AIR 1997 SC 3011, 13 August 1997; Chapter 7.4. 19 Supreme Court, Dr Ashwini Kumar v Union of India Ministry of Home, Miscellaneous Application No. 2560 of 2018, 5 September 2019. 20 Ibid, paras 1–2. 21 Ibid, paras 9–13. 22 Ibid, para. 27. 23 Ibid, para. 32.

240

Treaties in parliaments and courts

a power which we do not “possess”, while exercising power of judicial review’.24 Instead, the Indian constitution would grant parliament the power to conceive implementing legislation for treaties according to Article 253 of the Indian constitution.25 While the decision built on traditional perceptions of the proper separation of power between the legislature and the judiciary rather than referring to the specifics of foreign affairs, it shows that some sense of the limits of judicial power in the judiciary exists. In general, however, a strong role of courts is part of the self-understanding of Indian justices and judges.

11.2

EXECUTIVE DISCRETION IN GERMANY AND SOUTH AFRICA

German courts do not recognize a political question doctrine as such.26 By providing for judicial review of legislative acts (Article 100(2) of the Basic Law) and enshrining the right to effective legal protection before a court (Article 19(4) of the Basic Law), the Basic Law puts trust into judicial review and a strong role for the judiciary in the parliamentary democracy. Accordingly, the Constitutional Court did not refrain from deciding cases concerning the division of competences between the legislative and executives in foreign affairs shortly after its establishment.27 In the context of the controversy about German rearmament in the early 1950s, the Constitutional Court stressed that its decisions affecting foreign affairs were based on its legal view of the division of competences under the Basic Law.28 In contrast, the fact that a case might conceivably affect the ‘life of the nation’ would not guide the Constitutional Court’s reasoning.29 Moreover, even though the Court pledged in its decision on the Basic Treaty between the Federal Republic and the German Democratic Republic to adhere to the concept of ‘judicial self-restraint’,30 it did not refrain from deciding the case.31 Instead of adopting a political question doctrine, the Court generally emphasizes the wide scope of discretion of the executive in foreign affairs. In the Rudolf Heß case, the Court stated that the Basic Law would provide for broad Ibid, para. 33. Ibid, para. 34. 26 R. Zuck, ‘Political-Question-Doktrin, Judicial-self-restraint und das Bundesverfassungsgericht’, JZ 1974, 361 (362); K. Schlaich and S. Korioth, Das Bundesverfassungsgericht (Beck, 11th ed. 2018), para. 505. 27 Federal Constitutional Court, 2 BvE 3/51, 29 July 1952; 2 BvE 2/51, 29 July 1952. 28 Federal Constitutional Court, 1 PBvV 1/52, 8 December 1952, para. 59. 29 Ibid, para. 59. 30 Federal Constitutional Court, 2 BvF 1/73, 31 July 1973, para. 51. 31 Ibid. 24 25

Non-justiciability

241

executive discretion for the assessment of its foreign policy taking into account Germany’s lack of capability to control the course of events in foreign affairs.32 Accordingly, courts should exercise restraint before declaring the government opinion on the legality of a particular foreign policy to constitute an inaccurate legal evaluation.33 Courts should only intervene where the executive’s legal opinion was arbitrary.34 Also, in more recent decisions, the Constitutional Court highlighted that the ‘organs responsible for foreign and defense policy’ should decide how the state could live up to its duty to protect fundamental rights in foreign affairs in relation to foreign states.35 In 2020, the Federal Administrative Court affirmed the discretionary power of the executive in foreign affairs.36 The case concerned the German government’s responsibility for US drone strikes against Yemeni citizens in Yemen electronically conducted via an US airbase in Ramstein, Germany.37 While the Court left open whether the government had a duty to protect the Yemeni claimants, it held that the German government had taken sufficient measures to address the issue through political and diplomatic channels.38 According to the Court, asking for and receiving US assurances about the legality of the US actions on German territory could not be regarded as ‘completely insufficient’ for protecting potentially affected individuals.39 The decision demonstrates that German courts acknowledge executive discretion in foreign affairs, in particular if duties of protection are at stake.40 In South Africa too, a political question doctrine does not play a role in the jurisprudence of courts.41 While during apartheid the executive had been left with an almost unfettered discretion in foreign affairs,42 this changed with the Federal Constitutional Court, 2 BvR 419/80, 16 December 1980, para. 37. Ibid, para. 40. 34 Ibid, para. 40. 35 Federal Constitutional Court, 2 BvR 1371/13, 15 March 2018, para. 46; for further decisions see H. Aust, ‘US-Drohneneinsätze und die grundrechtliche Schutzpflicht für das Recht auf Leben: “German exceptionalism”?’ JZ 2020, 303 (306). 36 The court overturned a decision of the Higher Administrative Court of North Rhine – Westphalia, 4 A 1361/15, 19 March 2019. 37 Federal Administrative Court, 6 C 7/19, 25 November 2020. 38 Ibid, paras 67–81. 39 Ibid, paras 67–81. 40 On the case see Aust, ‘Drohneneinsätze’, 303; P. Heinemann‚ ‘US-Drohneneinsätze vor deutschen Verwaltungsgerichten’, NVwZ 2019, 1580. 41 On the debate about direct access see J. Dugard and T. Roux, ‘The Record of the South African Constitutional Court in Providing an Institutional Voice for the Poor, 1995–2004’, in R. Gargarell and T. Roux and P. Domingo (eds), Courts and Social Transformations in New Democracies: An Institutional Voice for the Poor? (Routledge 2006), 107. 42 Tladi, ‘Mandela’, 217; Dugard and Coutsoudis, ‘Place’, 105. 32 33

242

Treaties in parliaments and courts

adoption of the post-apartheid constitution. The Constitutional Court takes the view that – according to the rule of law as a foundational value entrenched in Section 1 of the constitution – each exercise of government power must be rationally related to a legitimate purpose that the courts are empowered to control.43 Moreover, cases concerning a ‘crucial political question’ may be regarded as a matter in the exclusive jurisdiction of the Constitutional Court (Section 167(4) of the constitution) rather than outside the purview of judicial decision-making per se.44 While some observers assert that a political question doctrine should be developed in South African jurisprudence to prevent judicial overreach,45 others reject the doctrine as a foreign concept.46 Be that as it may, as in Germany, the courts grant the executive some discretion in the field of foreign policy. The High Court of South Africa indicated in 2001 that certain decisions, such as the recognition of a foreign state, would be non-justiciable since no ‘judicial or manageable standards’ for judging them would exist.47 In Kaunda v President of the Republic of South Africa, which concerned the exercise of diplomatic protection for South Africans held in Zimbabwe, the Constitutional Court stressed the wide discretion of the executive. Courts should ‘give particular weight to the government’s special responsibility for and particular expertise in foreign affairs’.48 Accordingly, the Constitutional Court granted ‘wide discretion’ when assessing issues of foreign relations and emphasized that judicial review does ‘not mean that courts would substitute their opinion for that of the government’.49 Nonetheless, as cases such as SADC Tribunal demonstrate, the Court may not always grant the executive broad discretion in its exercise of foreign policy.50

Rautenbach, ‘Political Question’, 26. Doctors for Life International v Speaker of the National Assembly (CCT12/05) [2006] ZACC 11; 2006 (12) BCLR 1399 (CC); 2006 (6) SA 416 (CC) (17 August 2006), para. 24. 45 M. Mhango, ‘Is It Time for a Coherent Political Question Doctrine in South Africa? Lessons from the United States’, African Journal of Legal Studies 7 (2014), 457. 46 Rautenbach, ‘Political Question’, 20. 47 Kolbatschenko v King NO and Another, 2001 (4) SA 336 (C), 356–7, cited after Dugard and Coutsoudis, ‘Place’, 108. 48 Kaunda v the President of the Republic of South Africa, 2005 (4) SA 235 (CC), 4 August 2004, para. 144. 49 Ibid, paras 144, 79; see also Supreme Court, Government of the Republic of South Africa and Other v Von Abo, 2011 (5) SA 262 (SCA), 4 April 2011; on this Strydom, ‘Treaty-Making’, 262–9. 50 Tladi, ‘Mandela’, 215; Dugard and Coutsoudis, ‘Place’, 114–16; on the case see Chapter 6.3.3. 43 44

Non-justiciability

11.3

243

THE ATS, CLIMATE LITIGATION AND TREATY WITHDRAWAL IN THE US

11.3.1 ATS and Prudential Considerations As explained above, the 1980 Filartiga decision of the Second Circuit Court of Appeals provided the basis for tort litigation by foreigners against other foreigners in US courts for violations of the law of nations.51 However, other courts dismissed the admissibility of similar claims before US courts based on the political question doctrine. Tel Oren v Libyan Arab Republic concerned a claim by Israelis against members of the Palestine Liberation Organization allegedly involved in a terrorist attack on a civilian bus in Israel.52 Building on the famous 1962 Baker v Carr decision,53 Judge Robb emphasized that the case concerns standards that ‘defy judicial application’ and would touch upon ‘sensitive matters of diplomacy that uniquely demand a single-voiced statement of policy by the Government’.54 Judge Robb emphasized that ‘[t]he courts must be careful to preserve [the President’s] flexibility and must hesitate to publicize and perhaps legitimize that which ought to remain hidden’.55 In his concurring opinion, Judge Bork referred to precedent, stressing that ‘[t]he conduct of the foreign relations of our Government is committed by the Constitution to the Executive and Legislative – “the political” – Departments’.56 Separation of powers concerns became an obstacle for various ATS cases. In Sosa v Álvarez-Machaín in 2004, the unanimous Supreme Court pointed to prudential reasons calling for a narrow interpretation of ATS claims.57 The 51 Filartiga v Pena-Irala, United States Court of Appeals, Second Circuit, 630 F.2d 876 (2d Cir. 1980), 30 June 1980; pointing to other cases in which the political question doctrine did not play a major role, Endicott, ‘Answer?’ 546–51; Chapter 8.2. 52 Tel Oren v Libyan Arab Republic, 726 F.2d 774, 3 February 1984. 53 The Court listed as factors ‘[1)] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2)] a lack of judicially discoverable and manageable standards for resolving it; or [3)] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4)] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5)] an unusual need for unquestioning adherence to a political decision already made; or [6)] the potentiality of embarrassment from multifarious pronouncements by various departments on one question’: Baker v Carr, 369 US 186, 217, 26 March 1962. 54 Ibid, 823–4, Concurring opinion Judge Robbs. 55 Ibid, 825. 56 Ibid, 801, Concurring opinion Judge Bork. 57 Sosa v Alvarez-Machain, 542 US 692 (2004), 29 June 2004; on the case see H. Cohen, ‘Supremacy and Diplomacy: The International Law of the US Supreme Court’, Berkeley Journal of International Law 24 (2006), 273 (280–92).

244

Treaties in parliaments and courts

case concerned a claim by a Mexican who had been abducted and brought to the US on behalf of the Drug Enforcement Agency to stand trial for alleged torture and murder of a US special agent in Mexico. After the acquittal for lack of evidence, Álvarez-Machaín filed an ATS claim, which was dismissed by the Supreme Court. Writing for the majority, Justice Souter suggested that ‘great caution’ should be taken when ‘adapting the law of nations to private rights’, pointing to potential implications for US foreign relations.58 Courts should be ‘particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs’.59 In a footnote, the Court proposed ‘a policy of case-specific deference to the political branches’ as a limitation to ATS litigation.60 In the 2013 Kiobel v Dutch Petroleum case, a unanimous Supreme Court dismissed a claim of Nigerian citizens against Dutch, British and Nigerian oil-extracting corporations. The claimants had argued that the corporations were responsible for aiding and abetting the Nigerian government in its use of violence against peaceful protesters criticizing aggressive oil exploitation in the early 1990s.61 The majority of the justices dismissed the case based on the presumption against extraterritorial application of the ATS.62 Writing for the majority, Chief Justice Roberts, joined by Justices Scalia, Kennedy, Thomas and Alito, emphasized that the presumption aims at preventing conflicts between US law and laws of other states.63 Roberts stressed that the ‘danger of unwarranted judicial interference in the conduct of foreign policy is magnified in the context of the ATS, because the question is not what Congress has done but instead what courts may do’.64 In 2018, the Supreme Court majority decided in Jesner v Arab, in a five to four ruling, that foreign corporations may not be held liable under the ATS.65 The case concerned the responsibility of the Arab Bank for terrorist attacks committed in Israel, the West Bank and Gaza. The reasoning of the majority was partly driven by perceptions of the proper allocation of powers. Writing for the majority, Justice Kennedy, joined in part by Chief Justice Roberts and Justices Thomas, Alito and Gorsuch, pointed to ‘separation of powers concerns’, explaining that ‘[t]he political branches, not the Judiciary, have the responsibility and the institutional capacity to weigh foreign-policy concerns’.66 Without further

Sosa v Alvarez-Machain, 542 US 692 (2004), 29 June 2004, 727–8. Ibid, 727. 60 Ibid, 733 fn 21. 61 Kiobel v United States, 569 US 108, 109 (2013), 17 April 2013. 62 Ibid. 63 Ibid, 115. 64 Ibid, 109. 65 Jesner v Arab Bank, 138 S Ct 1386 (2018), 24 April 2018. 66 Ibid, 1403. 58 59

Non-justiciability

245

legislative action, courts should not hold foreign corporations liable under the ATS.67 Moreover, Justice Kennedy pointed to the diplomatic tensions that the litigation caused between the United States and Jordan as an important ally in fighting terrorism.68 Because ‘foreign corporate defendants create unique problems’, courts would not be fit to make the policy judgments stemming from liability of foreign corporations.69 In his concurring opinion, Justice Alito stressed that ‘[c]reating causes of action under the Alien Tort Statute against foreign corporate defendants would precipitate exactly the sort of diplomatic strife that the law was enacted to prevent’.70 Similarly, Justice Gorsuch emphasized that ‘the job of creating new causes of action and navigating foreign policy disputes belongs to the political branches’.71 For the more conservative wing of the Supreme Court, separation-of-powers concerns played a key role in limiting the prospects of ATS litigation against foreign corporations. Thus, despite indications of stronger judicial oversight in some areas of foreign affairs,72 the political question doctrine and separation-of-powers concerns remain well entrenched in decisions concerning US foreign relations law.73 11.3.2 The Limits of Climate Change Litigation Separation-of-powers concerns also played a role in the context of climate change litigation. Since the 2000s, environmentalists worldwide have brought litigation aimed at strengthening the respective national regulatory schemes for greenhouse gas emissions.74 While most of the US climate change litigation

Ibid, 1403. Ibid, 1407. 69 Ibid, 1407. 70 Ibid, 1408, Concurring opinion Judge Alito. 71 Ibid, 1414, Concurring opinion Judge Gorsuch. 72 Zivotofsky v Clinton, 566 US 189 (2012), 26 March 2012; H. Cohen, ‘Claiming Control over Foreign Relations Law. The Roberts Court’s First Decade’, AJIL Proceedings 109 (2015), 42; G. Sitaraman and I. Wuerth, ‘The Normalization of Foreign Relations Law’, Harvard Law Review 128 (2015), 1897. 73 C. Bradley, ‘Foreign Relations Law and the Purported Shift away from “Exceptionalism”’, Harvard Law Review Forum 128 (2015), 294; C. Vázquez, ‘The Abiding Exceptionalism of Foreign Relations Doctrine’, Harvard Law Review Forum 128 (2015), 305; S. Vladeck, ‘The Exceptionalism of Foreign Relations Normalization’, Harvard Law Review Forum 128 (2015), 322. 74 Gerrard, ‘Overview’, 194; J. Setzer and L. Vanhala, ‘Climate Change Litigation: A Review of Research on Courts and Litigants in Climate Governance’, Wires Climate Change 19 (2019), 1; for some time, this litigation had primarily occurred in the United States and Western states, but it has now also reached domestic courts in the Global South: J. Peel and J. Lin, ‘Transnational Climate Litigation: The Contribution of the Global South’, AJIL 113 (2019), 679. 67 68

246

Treaties in parliaments and courts

was based on domestic statutes or doctrines such as the National Environmental Policy Act, the Clean Air Act and the Endangered Species Act,75 some connection to the international climate change regime existed, if only that the litigation was supposed to enable the US government to fulfil its international commitments. In the most famous US climate litigation case, Massachusetts v EPA, the Supreme Court held by a five to four majority that the EPA has the competence and the duty to take action to control and regulate greenhouse gas emissions.76 Even though the Supreme Court decision did not rely on climate change treaties, it opened the door for future domestic implementation of potential international commitments on climate mitigation.77 However, the decision was met with scepticism by the justices with conservative leanings. In his dissent, Chief Justice Roberts, joined by Justices Scalia, Thomas and Alito, dismissed the challenges of the states as non-justiciable.78 He highlighted that it would be the task of Congress and the President to address global warming, not that of the judiciary.79 In the same year, a district court dismissed the state of California’s claim against various automakers for damages resulting from the company’s contribution to global warming.80 In People of the State of California v General Motors Corporation, the Court held that it could not adjudicate on the ‘global warming nuisance tort claim without making an initial policy determination of a kind clearly for nonjudicial discretion’.81 After recalling the history of the US non-engagement with the Kyoto Protocol,82 the Court stressed that ‘[i]n the area of foreign policy, the Court finds that the political branches have weighed in on the issue, and have made foreign policy determinations regarding the United States’ role in the international concern about global warming’.83 The Court emphasized that ‘[t]he political branches have deliberately elected to refrain from any unilateral commitment to reducing such emissions domestically unless developing nations make a reciprocal commitment’.84 Therefore, the ‘global warming nuisance tort would have an inextricable effect on inter75 On this see Gerrard, ‘Overview’, 194; J. Peel and H. Osofsky, Climate Change Litigation (CUP 2015), 61–83. 76 Massachusetts v EPA, 549 US 497 (2007), 2 April 2007. 77 Galbraight, ‘From Treaties’, 1733. 78 Massachusetts v EPA, 549 US 497 (2007), 2 April 2007, 535, Dissenting opinion Chief Justice Roberts. 79 Dissenting opinion Chief Justice Roberts, 535. 80 United States District Court, Northern District of California, People of the State of California v General Motors Corp., 2007 WL 2726871, 17 September 2007. 81 Ibid, 13. 82 Ibid, 5. 83 Ibid, 14. 84 Ibid, 14.

Non-justiciability

247

state commerce and foreign policy – issues constitutionally committed to the political branches of government’.85 The reluctance of the political branch to participate in the international climate change regime became an argument against domestic climate change litigation claims. This was by no means the only view presented on the matter. Two years later, in a similar case brought against American electric power companies, the Second Circuit Court held the claim for damages to be justiciable.86 According to the Court, the Bush II administration’s scepticism regarding the international climate change regime could not transform the claim into a non-justiciable political issue. The plaintiffs would not ‘ask the court to fashion a comprehensive and far-reaching solution to global climate change, a task that arguably falls within the purview of the political branches’, but only aim at ‘limit[ing] emissions from six domestic coal-fired electricity plants’.87 However, in 2011 the Supreme Court overturned the decision in American Electric Power Company v Connecticut, holding that corporations may not be held liable for greenhouse gas emissions under federal common law.88 In the unanimous decision, the Court argued that the authority of the EPA to regulate greenhouse gas emissions as decided in Massachusetts v EPA displaces any federal common law claim against fossil fuel-fired power plants for emissions.89 According to Massachusetts v EPA, Congress had empowered the EPA to regulate greenhouse gas emissions, preventing federal courts from issuing their own rules on what amounts to ‘unreasonable’ emissions.90 In Juliana v United States, 21 young plaintiffs filed a lawsuit urging the government to take assertive action on climate mitigation. In November 2016, a judge at an Oregon federal district court denied the government’s motion to dismiss the case.91 According to Judge Aiken, the issue did not concern a non-justiciable political question for separation of powers reasons, in particular because ‘unlike the decisions to go to war, take action to keep a particular foreign leader in power, or give aid to another country, climate change policy is not inherently, or even primarily, a foreign policy decision’.92 She suggested that ‘[t]here is no contradiction between promising other nations the United Ibid, 14. United States Court of Appeals, Second Circuit, State of Connecticut v American Electric Power Company Inc., 582 F. 3d 309, 20 June 2011. 87 Ibid, 325. 88 American Electric Power Company v Connecticut, 564 U.S. 410 (2011), 20 June 2011. 89 Ibid, Syllabus. 90 Ibid, Syllabus. 91 United States District Court, D. Oregon, Juliana v United States, 217 F.Supp.3d 1224, 10 November 2016. 92 Ibid, 1238. 85 86

248

Treaties in parliaments and courts

States will reduce CO2 emissions and a judicial order directing the United States to go beyond its international commitments to more aggressively reduce CO2 emissions’.93 However, in January 2020, the Ninth Circuit Court dismissed the case by a two to one majority due to lack of standing under Article III of the constitution.94 Even though the majority judges held two crucial requirements of standing (injury and causation) to be fulfilled,95 they had doubts about the third requirement (redressability). According to the majority opinion, a federal court would not have the power to devise a programme on how to address climate change.96 The Court stressed that ‘any effective plan would necessarily require a host of complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches’.97 According to the majority opinion, the decision as to how to fight climate change should be made ‘by the People’s “elected representatives, rather than by federal judges interpreting the basic charter of Government for the entire country”’.98 While the dissent demonstrates that different views on the matter exist,99 separation of powers arguments often prevent US domestic courts from intervening in climate regulation.100 Separation of powers concerns were also at the heart of the Supreme Court’s 2021 decision in West Virginia v EPA. The judges were divided over the proper relationship between Congress and the EPA. By six to three, the Supreme Court decided that the EPA lacked ‘clear congressional authorization’ to regulate generation shifting from coal to renewable energy.101 Neither the majority opinion nor the dissent linked the case to the treaty obligations of

Ibid, 1240. United States Court of Appeals, Ninth Circuit, 947 F.3d 1159, 17 January 2020. 95 Ibid, 1168–9. 96 Ibid, 1171. 97 Ibid, 1171. 98 Ibid, 1172. 99 Ibid, 1175; 1183–4; see also M. Powers, ‘Juliana v United States: The Next Frontier in US Climate Mitigation?’ Review of European, Comparative & International Environmental Law 27 (2018), 199. 100 In a case challenging the rollback of environmental regulation by the Trump administration, a district court also pointed to ‘prudential considerations’ behind Article III standing requirements aimed at ‘prevent[ing] the judicial process form being used to usurp the powers of the political branches’: Clean Air Council v United States of America, 362 F.Supp.3d 237, 250, 19 February 2019; for the unsuccessful attempt to seek redress for the US non-compliance with reporting obligations under the UNFCCC, United States District Court, District of Columbia, Center for Biological Diversity v U.S. Department of State, Civil Action No. 18-563, 12 June 2019 2019 WL 2451767. 101 West Virginia v Environmental Protection Agency, 597 U.S. ___ (2022), 28 October 2021. 93 94

Non-justiciability

249

the US under international climate change law.102 The Paris Agreement was not relevant for the separation-of-powers discussion. 11.3.3 Treaty Withdrawals The political question doctrine also governs the issue of parliamentary participation in treaty withdrawal. While in South Africa the High Court argued that parliament has to be involved in treaty withdrawal even though the constitution is not explicit about it,103 the various withdrawal measures taken by the Trump administration did not lead to similar cases. Some observers propose that withdrawal from executive agreements (such as the Paris Agreement) and Article II treaties (such as the OP to the 1961 Vienna Convention on Diplomatic Relations and the Intermediate-Range Nuclear Forces Treaty) require congressional or senatorial approval to be effective.104 However, no cases based on this argument reached US courts because of the Goldwater v Carter precedent. The Goldwater v Carter case concerned the Carter administration’s termination of the Treaty of Mutual Defense with Taiwan, which was challenged by Republican Senator Barry Goldwater. A federal district court held that terminating a treaty without the advice and consent of the Senate or the approval of both Houses violates the constitution.105 The Court assumed that it was ‘confronted with a dispute consisting of a clash of authority between the two political branches in a posture suitable for judicial resolution’.106 However, the Supreme Court took a different view. Writing for the majority, Justice Powell dismissed the case ‘as not ripe for judicial review’.107 Powell suggested that the judiciary should intervene only in case Congress asserts its constitutional authority by taking a position on the issue. Powell emphasized that ‘[t]he Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse’.108 He also stressed that ‘[i]f the Congress chooses not to confront the President, it is not our task to do so’.109 An individual member of Congress should not be capable to ‘seek judicial resolution of issues before

Ibid, Dissent by Justice Kagan. See Chapter 6.3.3. 104 See for instance Koh, ‘Presidential Power’, 432; Ackermann and Golove, ‘Iran Agreement’. 105 Goldwater v Carter, 481 F. Supp. 949, 964 (D.C. Cir, 1979), 17 October 1979. 106 Ibid, 958. 107 Goldwater v Carter, 444 US 996 (1979), 13 December 1979; for the dissenting opinion of Justice Brennan see ibid, 1007. 108 Ibid, 996. 109 Ibid, 998. 102 103

250

Treaties in parliaments and courts

the normal political process has the opportunity to resolve the conflict’.110 The concurring opinion of Justice Rehnquist, joined by Chief Justice Steward and Justice Stevens, was even more straightforward on the political question issue. The opinion held the case to be political and non-justiciable ‘because it involves the authority of the President in the conduct of our country’s foreign relations’.111 The silence of the constitution on the issue of treaty withdrawal would suggest that political standards control the issue.112 The executive and legislature as ‘coequal branches’ would be capable ‘to protect and assert its interests’.113 In subsequent cases, US courts adopted the political question theme when deciding on the scope of the treaty-making and treaty termination power. In 2001, the US Court of Appeals of the Eleventh Circuit dismissed the challenge to the conclusion of the North American Free Trade Agreement as a congressional-executive agreement as non-justiciable on the basis of the political question doctrine.114 The Supreme Court later validated the reasoning by denying grant of certiorari.115 In Kucinich v Bush, the District Court of Columbia dismissed the challenge of some House members to the President’s 2002 withdrawal from the Anti-Ballistic Missile Treaty with the Russian Federation for lack of standing and political question grounds.116 Because the Supreme Court does not regard withdrawal from treaties as falling within the orbit of judicial authority, the executive’s discretion to withdraw from treaties is barely limited.117

Ibid, 996. Ibid, 1002. 112 Ibid, 1003. 113 Ibid, 1004. 114 US Court of Appeals, 11th Circuit, Made in the USA Foundation v United States, 242 F. 3d 1300, 27 February 2001; on more examples see R. Dalton, ‘National Treaty Law and Practice: United States’, in D. Hollis, M. Blakeslee and B. Ederington (eds), National Treaty Law and Practice (Martinus Nijhoff 2005), 765 (781–2). 115 Supreme Court, certiori denied, 534 US 1039 (2001). 116 Kucinich v Bush, 236 F. Supp. 2d 1 (D.D.C. 2002), 30 December 2002; on this see Dalton, ‘United States’, 793. 117 For sole executive treaty withdrawal see Restatement (Fourth), § 313 (1); see also Restatement (Third), § 339; for the debate J. Galbraith, ‘Power to Withdraw’, 445; Bradley, ‘Gloss’, 773; for comparative views see H. Woolaver, ‘From Joining to Leaving: Domestic Law’s Role in the International Legal Validity of Treaty Withdrawal’, EJIL 30 (2019), 73. 110 111

Non-justiciability

11.4

251

DIFFERENT TAKES ON JUDICIAL SUPREMACY

The use of separation-of-powers arguments to abstain from deciding cases concerning foreign policy is primarily a practice of US courts. Courts in Germany, India and South Africa are more willing to adjudicate on cases affecting the treaties under examination. This can partly be explained with the specific US legal doctrines on which the case law is built. By empowering foreigners to bring cases against violation of the law of nations by foreigners in US courts, the ATS implicates foreign relations. Tort claims against officials of the Palestine Liberation Organization and transnational foreign corporations may trigger diplomatic tensions that courts might want to avoid.118 Furthermore, cases aimed at holding companies liable for their contributions to climate change have often been unsuccessful, also in other jurisdictions.119 Last but not least, US procedural law does not recognize a procedure similar to the German Organstreit proceeding (Article 93(1) Sentence 1 of the Basic Law), the South African proceeding concerning disputes between state organs (Section 167(4) (a) of the South African constitution) and the Indian proceeding concerning disputes between the Government of India and the states (Article 131 of the Indian Constitution).120 All procedures allow the respective organs to bring disputes over their constitutional powers to the respective apex courts. This partly explains why German, South African and Indian courts decide on the allocation of powers in foreign affairs, while US courts do not. Moreover, differences in judicial self-understanding grounded in the historical evolution of the scope of judicial review in the respective states also come to the fore.121 In Germany, several factors contributed to a strong role of the judiciary in foreign affairs. Since the end of the nineteenth century, various Länder erected administrative courts to oversee government action in the context of the German Reichsgründung, a goal that had already been enshrined in the (failed) 1848 Frankfurt constitution.122 Even though the Weimar constitution did not On this see Chapter 9.1. While hundreds of cases have been filed, few have been concluded successfully: G. Ganguly, J. Setzer and V. Heyvaert, ‘If At First You Don’t Succeed: Suing Corporations for Climate Change’, Oxford Journal of Legal Studies 38 (2018), 841. 120 M. Kau, United States Supreme Court und Bundesverfassungsgericht. Die Bedeutung des United States Supreme Court für die Errichtung und Fortentwicklung des Bundesverfassungsgerichts (Springer 2007), 317–21. 121 On the terms ‘judicial review’ and ‘judicial supremacy’ see R. Grote, ‘Judicial Review’, in Max Planck Encyclopedia of Comparative Constitutional Law (July 2018); S. Gardbaum, ‘What Is Judicial Supremacy?’, in G. Jacobsohn and M. Schor (eds), Comparative Constitutional Theory (Edward Elgar Publishing 2018), 21. 122 § 182 of the Constitution of the German Reich, 28 March 1849; on this K.-P. Sommermann, Die deutsche Verwaltungsgerichtsbarkeit (Speyer 1991), 1–10; F. 118 119

252

Treaties in parliaments and courts

address the issue of judicial review of legislation, domestic courts slowly started to review parliamentary statutes in light of the constitution.123 While during national socialism courts refrained from controlling so-called political leadership acts (politische Führungsakte) and judicial control was generally reduced,124 the broad powers of the West German Constitutional Court were intended to link the rule-of-law tradition with individual rights protections.125 On this basis, the Constitutional Court exercised broad review of executive and legislative action. In the dispute about West German military contributions to a European Defense Community, the Constitutional Court was prepared to risk confrontation with the Adenauer government.126 The judges indicated that they would not dismiss the case because of potential foreign policy repercussions.127 While German courts allow for some discretion of the political branches in foreign affairs, they do not shy away from deciding cases on the allocation of competences between the branches or implicating foreign policy. In India, after independence from the colonial British Empire, the powers of the Indian Supreme Court soon exceeded the competences granted to British courts in a system of parliamentary sovereignty.128 While the drafters of the Indian constitution favoured some limits of the reach of the Supreme Court in relation to preventive detention and the right to property, they empowered the Supreme Court to review ordinary legislation in light of fundamental rights.129 Article 13(2) of the constitution highlights that the state ‘shall not make any law Mayer, ‘Verwaltungsgerichtsbarkeit in Deutschland’, in A. von Bogdandy, P. Huber and L. Marcusson (eds), Handbuch Ius Publicum Europaeum, Verwaltungsgerichtsbarkeit in Europa, Vol. VIII (C.F. Müller 2019), 119 (124–5). 123 C. Friedrich, ‘The Issue of Judicial Review in Germany’, Political Science Quarterly 43 (1928), 188; M. Stolleis, ‘Judicial Review, Administrative Review and Constitutional Review in the Weimar Republic’, Ratio Juris 16 (2003), 266 (272–3). 124 M. Stolleis, ‘Die Verwaltungsgerichtsbarkeit im Nationalsozialismus’, in H.-U. Erichsen, W. Hoppe and A. von Mutius (eds), System des verwaltungsgerichtlichen Rechtsschutzes. Festschrift für Christian-Friedrich Menger zum 70. Geburtstag (Carl Heymanns 1985), 57 (62–8). 125 Ibid, Geschichte des öffentlichen Rechts in Deutschland, Band IV, Staats- und Verwaltungsrechtswissenschaft in West und Ost 1945–1990 (Beck 2012), 145–71. 126 On this see F. Lange, ‘Der Dehler-Faktor. Die widerwillige Akzeptanz des Bundesverfassungsgerichts durch die Staatsrechtslehre’, Der Staat 56 (2017), 77 (94–103). 127 However, some judges debated invoking the political question doctrine, A. Baring, Außenpolitik in Adenauers Kanzlerdemokratie (De Gruyter 1969), 231; the case was ultimately not decided, because of the failure of the treaty on the European Defence Community in the French Assemblée nationale. 128 M. Mate, ‘Judicial Supremacy in Comparative Constitutional Law’, Tulane Law Review 92 (2017), 393 (412). 129 G. Austin, The Indian Constitution: Cornerstone of a Nation (OUP 1966, paperback 1999), 167–75.

Non-justiciability

253

which takes away or abridges the rights conferred by this Part [on Fundamental Rights] and any law made in contravention of this clause shall, to the extent of the contravention, be void’.130 The Supreme Court has not hesitated to strike down various pieces of legislation on this basis since its inception in 1950.131 Since the late 1960s, the Supreme Court has even expanded its judicial control powers to assess the constitutionality of constitutional amendments.132 In the 1960s, the Supreme Court upheld the right to property against amendments placing restrictions on judicial review, which had been supported by the Indira Gandhi government.133 The 1973 Kesavananda Bharati v State of Kerala case then concerned a range of amendments specifically drafted to reverse certain Supreme Court judgments.134 By holding that the legislature may not violate the ‘basic structure’ of the constitution when adopting constitutional amendments, the narrow majority of the Supreme Court opted for broad judicial review powers.135 In the aftermath of the emergency period some cases built on the ‘basic structure’ doctrine to rebuild popular trust in the judiciary.136 Since the 1990s, in cases such as Vishaka and Transgender, the Court built on this legacy of judicial supremacy by suggesting guidelines on sexual harassment and the treatment of transgender persons. In the face of what was perceived to be a dysfunctional Indian parliament, the Supreme Court took on legislative functions like implementing treaties in the domestic order.137 Against this background, it is not surprising that the Supreme Court does not hesitate to review the allocation of powers in foreign affairs.

Article 32 of the Indian constitution addresses the power of the Supreme Court. On the case law A. Thiruvengadam, The Constitution of India: A Contextual Analysis (Hart 2017), 119–22. 132 G. Austin, Working a Democratic Constitution: A History of the Indian Experience (OUP 2003), 171–292. 133 Austin, Working, 197–208; Thiruvengadam, Constitution, 121–4. 134 Kesavananda Bharati v State of Kerala, AIR 1973 SC 1461, 24 April 1973; Thiruvengadam, Constitution, 124–5; on the relationship to the political question doctrine see M. Uddin and R. Nabi, ‘Judicial Review of Constitutional Amendments in Light of the “Political Question” Doctrine: A Comparative Study of the Jurisprudence of Supreme Courts of Bangladesh, India and the United States’, Journal of the Indian Law Institute 58 (2016), 313. 135 Kesavananda Bharati v State of Kerala, AIR 1973 SC 1461, 24 April 1973; on this see Austin, Working, 258–77; Y. Roznai, ‘Unconstitutional Constitutional Amendments – The Migration and Success of a Constitutional Idea’, The American Journal of Comparative Law 61 (2013), 657 (690–3). 136 On the cases and the context see Mate, ‘Judicial Supremacy’, 414–24; see also P. Mehta, ‘The Rise of Indian Judicial Sovereignty’, Journal of Democracy 18 (2007), 70 (79–82); for more case law see Supreme Court Advocates-on-Record Association v Union of India (2016) 5 SCC 1, 16 October 2015. 137 Tushnet, ‘Outside’, 1026–7. 130 131

254

Treaties in parliaments and courts

In South Africa, the apartheid system had been built on the idea of parliamentary sovereignty.138 The 1958 South Africa Act Amendment Act stipulated that in general, ‘[n]o court of law shall be competent to enquire into or pronounce upon the validity of any law passed by Parliament’. The South African 1961 Republican Constitution emphasized that ‘Parliament shall be the sovereign legislative authority in and over the Republic and shall have full power to make laws for the peace, order and good government of the Republic’. Even though the South African judiciary had been deeply implicated in upholding the racial discrimination of the apartheid administrations,139 the post-apartheid 1996 constitution puts its trust in courts. The constitution contains a written Bill of Rights, which may be enforced by judicial review through the Constitutional Court.140 The Court received broad powers, for instance when being vested with the right to ‘make any order that is just and equitable’.141 The Court was even empowered to certify the final constitution negotiated by the constitutional assembly in light of broad constitutional principles,142 thus becoming a key actor in the constitution-making process.143 By cautiously invalidating certain parts of the negotiated document, the Court successfully affirmed its role as the final arbiter of the constitution.144 This generally strong role of the judiciary affects the judicial role in foreign affairs. In the wake of concerns about the Zuma administration’s foreign policy infringing on the human rights-oriented Mandela legacy, courts did not shy away from interfering with executive foreign policy decisions.145 In contrast, in the US, the belief in judicial supremacy does not go so far. Even though Justice Marshall developed the concept of judicial review in Marbury v Madison,146 there are certain limits to the judicial review power. In Coleman v Miller, the US Supreme Court declared that constitutional amendments may not be reviewed by courts since the US constitution vests Congress with ‘sole and complete control over the amending process’.147 Furthermore, separation of powers arguments have a long tradition in cases touching upon foreign affairs. In the 1936 Curtiss-Wright Export Corp. case, the seven to one Klug, Constitution, 7, 10–13. Ibid, 225–8. 140 Fowkes, ‘Constitutional Court’, para. 2. 141 Section 172(1)(b) of the constitution. 142 Certification of the Constitution of the Republic of South Africa, 1996 (CCT 23/96) [1996] ZACC 26; 1996 (4) SA 744 (CC); 1996 (10) BCLR 1253 (CC), 6 September 1996. 143 Klug, Constitution, 243–5; Fowkes, ‘Constitutional Court’, paras 3–4. 144 Klug, Constitution, 245. 145 Chapter 6.3.3. 146 Marbury v Madison, 5 US 137, 170 (1803), 24 February 1803. 147 Coleman v Miller, 307 US 433, 459 (1939), 5 June 1939. 138 139

Non-justiciability

255

majority stressed that ‘the federal power over external affairs [is] in origin and essential character different from that over internal affairs’ and ‘participation in the exercise of the power is significantly limited’.148 As the ‘sole organ’ in international relations, the President would have much broader powers than in the domestic sphere, which would not need to be enumerated in the Constitution.149 The Court justified this special position of the President by stressing that he ‘has the better opportunity of knowing the conditions which prevail in foreign countries’ and ‘has his confidential sources of information’.150 Around the same time, the idea that courts should not interfere with squabbles about the competences in foreign affairs gained prominence. As Edwin Corwin famously phrased it in the 1940s, the constitution poses an ‘invitation’ for the President and Congress to ‘struggle for the privilege of directing American foreign policy’.151 Because the constitution would vest the President as well as the Senate and Congress with certain powers concerning foreign affairs, the question of ‘which of these organs shall have the decisive and final voice in determining the course of the American nation is left for events to resolve’.152 Accordingly, courts should not intervene in the matter of foreign policy.153 While the political question doctrine has lost some ground since then, in the realm of foreign affairs the tradition of departmentalism, according to which the political branches determine their constitutional powers for themselves, seems to remain vivid.154

U.S. v Curtiss-Wright Export Corp., 299 US 304 (319), 21 December 1936. Ibid, 315–18. 150 Ibid, 320. 151 Corwin, President, 208. 152 Ibid, 208. 153 Ibid, 213–15. 154 K. Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton University Press 2007) 31–41; R. Fallon Jr., ‘Judicial Supremacy, Departmentalism, and the Rule of Law in a Populist Age’, Texas Law Review 96 (2017), 487 (494–6). 148 149

PART III

Their proper place This part assesses the normative debate in constitutional theory and doctrine on the proper allocation of competences in foreign relations law in light of my findings in the previous parts. In contrast to the more sceptical voices,1 I find it plausible to use comparative insights for normative arguments – as long as one is aware of potential pitfalls. Because it is problematic to draw conclusions from the ‘is’ for the ‘ought’,2 one should not infer too much from the comparative results for constitutional theory. Because different foreign relations laws are conceived in specific historical–political contexts, one should not casually transfer doctrinal arguments into other jurisdictions.3 Nonetheless, it is entirely possible that theoretical or doctrinal argument developed in a certain context fits into the constitutional scheme of another state. Because the ‘other’ may help to understand one’s own legal system,4 the comparative results may be used to stabilize existing lines of jurisprudence and uncover doctrinal misconceptions. Accordingly, I take a position in the theoretical debate about the proper role of the executive, legislative and judicial branch in foreign affairs. After portraying and challenging key arguments put forward in support of sole executive treaty-making and executive supremacy in foreign affairs, I point to the relevance of opening argumentative space for the opposition as a key argument for parliamentary participation in treaty-making. On the doctrinal level, I suggest that the German doctrinal debate in particular may benefit from engaging with the South African ICC Withdrawal case on parliamentary participation in treaty withdrawal (Chapter 12). Turning to the judicial approach

3 4 1 2

On this see Chapter 1. On the ‘is–ought problem’, Hume, Treatise, 469–70. Bell, ‘Public Law’, 235; Wahl, ‘Kulturvergleichung’, 163. Kotzur, ‘Wert’, 356–60; 365; Schönberger, ‘Verfassungsvergleichung’, 7. 256

Their proper place

257

of treaties, I question the theoretical case for domestic courts’ reluctance in foreign affairs. Instead I suggest that courts should engage with treaty provision while taking seriously the distinction between soft law and international legal obligations. In relation to doctrine, I put forward that judicial practice in South Africa and the US is not in line with the demands of the constitutional provisions on direct application. Moreover, I highlight the importance of consistent interpretation of constitutional provisions as a doctrinal take which should be embraced in all jurisdictions (Chapter 13).

12. Towards shared treaty powers 12.1

THE PLACE OF THE EXECUTIVE

12.1.1 The Case for the Executive Prerogative The theoretical debate about the proper role of the political branches in foreign affairs can be traced back to the age of the Atlantic revolutions. In the seventeenth and eighteenth centuries, most political philosophers and constitutional lawyers agreed that foreign affairs had to be centralized in the hands of the executive.1 John Locke’s idea of separating state power between executive, legislative and federative branches was partly intended to appease the people of England with regard to the rule of Protestant King William of Orange after his invasion of Britain, but also aimed to suggest a general reform of the relationship between the ruler and the ruled in the commonwealth in the context of the 1688 Glorious Revolution.2 However, in relation to foreign affairs, Locke built on the absolutist tradition and solely provided the monarch with foreign affairs power.3 According to him, the federative power is concerned with ‘war and peace, leagues and alliances and all transactions with individuals and communities outside the commonwealth’ and is supposed to guarantee the security of the public.4 Even though the federative and executive power would be distinct, the same actor would need to control both.5 Similarly, long after the Westminster parliament had gained law-making authority, in the mid-eighteenth century William Blackstone emphasized ‘the king’s prerogative to make treaties, leagues, and alliances with foreign states and princes’.6 1 On this see P. Haggenmacher, ‘Some Hints on the European Origins of Legislative Participation in the Treaty-Making Function’, Chicago-Kent Law Review 67 (1991), 313; G. Biehler, Die auswärtige Gewalt. Auswirkungen auswärtiger Interessen im innerstaatlichen Recht (Mohr Siebeck 2005), 30–8. 2 Locke, Second Treaties, sec. 146; on this D. Armitage, Foundations of Modern International Thought (CUP 2013), 84–5. 3 McLachlan, Foreign Relations, 33–7. 4 Locke, Second Treaties, sec. 146. 5 Ibid, secs 147–8. 6 Blackstone, Commentaries, 249; on this see A. Bestor, ‘Separation of Powers in the Domain of Foreign Affairs: The Intent of the Constitution Historically Examined’,

258

Towards shared treaty powers

259

Blackstone contended that ‘no other power in the kingdom can legally delay, resist, or annul’ treaty-making by the king.7 The support for sole executive decision-making in foreign affairs was not limited to Anglo-American writers. Some years earlier, Baron de Montesquieu had ascribed the conduct of foreign affairs to the executive when developing his theory of the distribution of powers between the executive, legislature and judiciary.8 In contrast to Locke, Montesquieu did not consider foreign relations power as a separate power of the state but allocated the power to make war and peace, to receive ambassadors and to establish public security to the executive ‘in respect to things dependent on the law of nations’.9 Just like Locke and Blackstone, Montesquieu saw no place for parliament in these foreign affairs. Even Jean-Jacques Rousseau, commonly associated with popular sovereignty, argued that ‘[t]he external exercise of power does not befit the People; the great maxims of State are not within its grasp’.10 In the German realm, Georg Friedrich Wilhelm Hegel distinguished between the internal and external legal sphere arguing that the monarch alone has the power ‘to command the armed forces, to conduct foreign affairs through ambassadors etc., to make war and peace, and to conclude treaties’.11 Because the state acts as an ‘individual subject’ in foreign affairs, the monarch alone is in charge of such acts.12 The Hegelian approach to foreign affairs influenced the writings of various German legal scholars throughout the nineteenth and twentieth centuries.13 The consensus of enlightenment theorists and constitutional lawyers on the executive prerogative in foreign affairs had been challenged since the late eighteenth century in the context of the Atlantic revolutions.14 While subsequently most states adopted schemes of parliamentary participation, some continue to reject parliamentary powers on treaty-making. In commonwealth countries such as Nigeria, Canada, Australia, New Zealand and India, sole executive treaty-making has remained the general rule until today.15

Seton Hall Law Review 5 (1973), 527 (530–4). 7 Blackstone, Commentaries, 249. 8 Montesquieu, Spirit, 151. 9 Ibid, 151. 10 C.J.-J. Rousseau, Lettres Écrites de la Montagne. Seconde Partie (Marc-Michel Rey, 1765), 26; translation stems from Haggenmacher, ‘Hints’, 314. 11 G.F.W. Hegel, Grundlinien der Philosophie des Rechts (1821), § 329. 12 Ibid, § 329. 13 M. Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law (1870–1960) (CUP 2001), 179–267; Biehler, Auswärtige Gewalt, 40–50. 14 On hints of even earlier practice, Haggenmacher, ‘Hints’, 326–36. 15 M. Mendez, ‘Constitutional Review of Treaties: Lessons for Comparative Constitutional Design and Practice’, ICON 15 (2017), 84 (91).

260

Treaties in parliaments and courts

Nigerian and Canadian foreign relations law provides for no parliamentary involvement in the treaty-making process (apart from implementation).16 In Australia and New Zealand, parliament may take a position on a treaty prior to ratification, but the executive may ratify the treaty on behalf of the states even if parliament disagrees with the government’s approach.17 In India, the Supreme Court emphasizes that ‘[t]he executive is qua the State competent to represent the State in all matters international and may incur obligations which in International Law are binding upon the State’.18 Even in states recognizing parliamentary participation in treaty-making, some actors argue for a narrow understanding of such powers. While South African courts accepted parliamentary participation in treaty-making (and also in treaty withdrawal),19 in the proceedings on the ICC withdrawal the Zuma administration defended its view that parliament should not be involved in treaty withdrawal. The representatives of the executive pointed to ‘the national executive’s primary role in international relations to conclude treaties’.20 In the US, some Supreme Court decisions are built on an understanding of broad executive foreign affairs competences. In Curtiss-Wright Export Corp., the Court held ‘the federal power over external affairs [to be] in origin and essential character different from that over internal affairs’ and ‘participation in the exercise of the power is significantly limited’. 21 The Court stressed that in the ‘vast external realm […] the President alone has the power to speak and listen as a representative of the nation’.22 In Germany, the Constitutional Court endorses a relatively narrow interpretation of parliamentary participation in

16 On Canada see McLachlan, Foreign Relations, 171–3; J. Harrington, ‘Redressing the Democratic Deficit in Treaty Law Making: (Re-)Establishing a Role for Parliament’, McGill Law Journal 50 (2005), 465; on Nigeria C. Okeke, ‘The Use of International Law in the Domestic Courts of Ghana and Nigeria’, Arizona Journal of International Law & Comparative Law, 32 (2015), 371 (405–6). 17 On Australia and New Zealand see McLachlan, Foreign Relations, 162–71. 18 Union of India and Anr v Azadi Bachao Andolan and Anr, Appeal (civil) 8161–8162 of 2003, 7 October 2003; see also Maganbhai Ishwarbhai Patel v Union of India, AIR 1969 SC 783, 9 January 1969; High Court of Bombay, P.B. Samant v Union of India, AIR 1994 Bom 323, 5 April 1994; High Court of Delhi, Shiva Kant Jha v Union of India & Ors, WP (C) No. 1357 of 2007, 11 November 2009. 19 High Court of South Africa (Gauteng Division, Pretoria), Case No. 83145/2016, 22 February 2017. 20 Ibid, para. 38. 21 U.S. v Curtiss-Wright Export Corp., 299 US 304 (319), 21 December 1936. 22 Ibid, 319, 21 December 1936; on the case see A. Simones, ‘The Reality of Curtiss-Wright’, Northern Illinois University Law Review 16 (1995), 411; J. Cash, ‘George Sutherland and the Contextualization of Executive Power’, American Political Thought 9 (2020), 50.

Towards shared treaty powers

261

foreign affairs based on the assumption of broad executive foreign affairs powers.23 The case for executive dominance in treaty-making and foreign affairs more generally has been built on four arguments. First, the executive is the most fit organ to devise foreign policy because of its superior foreign policy expertise and ability to act secretly and rapidly. Second, the state needs to speak with ‘one voice’ to clearly allocate responsibility and because inconsistent behaviour would weaken its credibility on the international level. Third, parliaments’ parochialism tends to inhibit universal engagement in the interest of the state. Fourth, parliamentary competences to pass implementing legislation and to control the government through inquiries and votes of non-confidence sufficiently guarantee parliament’s impact on treaties.24 First, references to the executive’s superior foreign policy expertise have informed the debate since the seventeenth century. Locke justified the strong role of the monarch in foreign relations, emphasizing that foreign relations would need to be primarily governed by the ‘Prudence of Wisdom of those who have this power committed to them, to be managed to the best of their skill, for the advantage of the commonwealth’.25 Similarly, Rousseau stressed that in foreign affairs a people would have ‘to follow its leaders, who […] are hardly interested in making treaties with foreign powers to the detriment of the country’.26 In the US, the drafters of the constitution endowed the Senate and not the House of Representatives with the ‘advice and consent’ power, assuming that the House would not guarantee a secret and responsive foreign policy.27 Alexander Hamilton indicated that ‘[d]ecision, activity, secrecy and dispatch will generally characterise the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished’.28 In constitutional practice, these arguments resurfaced. Justice Sutherland emphasized in Curtiss-Wright Export Corp. that the President would have ‘the better opportunity of knowing the conditions which prevail in foreign coun-

Federal Constitutional Court, 2 BvE 13/83, 18 December 1984, para. 137. Similarly McLachlan names ‘(a) the need for a unified national approach; (b) the requirements of international negotiations; (c) the avoidance of parochialism;(d) the democratic importance of ministerial responsibility; and (e) the positive elements of the legislative function’ as arguments against parliamentary participation: McLachlan, Foreign Relations, 154. 25 Locke, Second Treaties, secs 147. 26 Rousseau, Lettres, 26. 27 Publius (A. Hamilton), ‘The Treaty Making Power of the Executive’, The Federalist No. 7. 28 Ibid, ‘The Executive Department Further Considered’, The Federalist No. 70. 23 24

262

Treaties in parliaments and courts

tries’ and that his or her officials are capable to keep secrets.29 In Germany, the Bundestag’s legal committee suggested in the 1950s that the requirement of parliamentary consent to economic agreements would likely overburden the institutional capacities of the Bundestag and delay Germany’s ratification of treaties.30 The Constitutional Court suggests that the executive’s organization, composition, function, and procedure makes it the most appropriate branch to deal with foreign affairs.31 In foreign affairs, ‘institutionally and in the long term it would be typically only the government that will adequately dispose of the personal, material and organisational capacities to respond speedily and properly to changing external positions and thus carry out in the best possible way the national task of responsibly handling foreign affairs’.32 In Kaunda v. President of the Republic of South Africa, the South African Constitutional Court stressed that courts should ‘give particular weight to the government’s special responsibility for and particular expertise in foreign affairs’.33 Second, some observers point to the necessity for a state to take a unified approach in foreign affairs and in relation to treaties. Already Blackstone stressed that in foreign affairs ‘unanimity’ would be imperative for the king to be ‘feared and respected’ by foreign actors since otherwise they ‘would scruple to enter into any engagement that must afterwards be revised and ratified by a popular assembly’.34 Along similar lines, a 1819 US Senate report on the treaty-making procedure emphasized that ‘the interference of the Senate in the direction of foreign negotiations’ may ‘impair the best security for the national safety’ because the nature of discussions with foreign nations would require

29 U.S. v Curtiss-Wright Export Corp., 299 US 304 (320), 21 December 1936; in the US doctrinal debate some scholars repeat the arguments of Locke, Montesquieu and Blackstone to promote broad powers of the President in foreign affairs in light of an originalist understanding of the US constitution: S. Prakash and M. Ramsey, ‘The Executive Power over Foreign Affairs’, Yale Law Journal 111 (2001), 231 (265–72); J. Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 (University of Chicago Press 2008), 36–45; see also R. Turner, ‘Separation of Powers in Foreign Policy: The Theoretical Underpinnings’, George Mason University Law Review 11 (1988), 97. 30 Federal Constitutional Court, 2 BvE 2/51, 29 July 1952, paras 99–100. 31 Federal Constitutional Court, 2 BvE 13/83, 18 December 1984, para. 137. 32 Ibid, para. 138; see also ibid, 2 BvE 4/11, 19 June 2012, para. 91; ibid, 2 BvE 2/15, 13 October 2016, para. 131; for scholarly support of jurisprudence favouring the executive branch, W. Grewe, ‘Zum Verfassungsrecht der auswärtigen Gewalt: Die Kompetenzverteilung zwischen den Bundesorganen’, Archiv des öffentlichen Rechts 12 (1987), 521 (528); D. Rauschning, ‘Art. 59’, in W. Kahl and C. Waldhoff and C. Walter (eds), Bonner Kommentar (C.F. Müller, 143. Ergänzungslieferung 2009), para. 216. 33 Kaunda v the President of the Republic of South Africa, 2005 (4) SA 235 (CC), 4 August 2004, para. 144. 34 Blackstone, Commentaries, 245.

Towards shared treaty powers

263

‘caution and unity of design’.35 In the debate on the drafting of the Indian constitution, the states’ participation in decisions concerning international conferences was rejected with a similar argument. According to K.M. Munshi, ‘no representative of India will be heard [on the international level] with any weight at all, if he has to keep a reservation that he would come back to this country and ask his 35 unit Governments and if one of them disagrees he would not be able to implement those decisions’.36 More generally, supporters of a strong role of the executive in foreign affairs emphasize the benefits of a consistent and coherent foreign policy.37 Third, occasionally the argument is made that nationalistic parliaments may inhibit the treaty-making process. In response to criticism about the lack of Lok Sabha involvement in the domestic decision-making process on the WTO agreement, Indian member of parliament Pranab Mukherjee pointed to the US Senate’s refusal of the Versailles Treaty as evidence of potential ‘complications’.38 According to him, certain treaties on sharing of water resources between India and Nepal would have been unlikely to have received parliamentary approval.39 Also, outside of the Indian context, it is suggested that parliamentarians’ focus on domestic issues would likely hamper decision-making in foreign affairs in general and the treaty-making process in particular.40 Fourth, theoreticians and courts put forward that parliament possesses sufficient alternative means to influence treaty-making. Because parliament often decides whether a treaty will be implemented in the domestic order, it controls a treaty’s impact therein.41 During the drafting of the Indian constitution, the framers suggested that parliament’s power to implement treaties would safeguard the parliamentary chamber’s role. K.M. Munshi emphasized that the debate and vote on implementing legislation guarantees that the decision ‘is not going to be taken behind the back of the representatives of any member of the Union’.42 In the Lok Sabha debate during the 1990s, Mukherjee emphasized that parliament’s power to implement the treaties and to ques35 U.S. Senate, Committee on Foreign Relations, Reports 8: 24, 15 February 1816, https://​press​-pubs​.uchicago​.edu/​founders/​documents/​a2​_2​_2​-3s29​.html. 36 Constituent Assembly of India Debates (Proceedings), Volume V, 25 August 1947, http://​loksabhaph​.nic​.in/​writereaddata/​cadebatefiles/​C25081947​.pdf. 37 A. Gyngell and M. Wesley, Making Australian Foreign Policy (CUP, 2nd ed. 2007), 145. 38 National Commission to Review the Working of the Constitution, Treaty-Making Power, para. 46. 39 Ibid. 40 On this McLachlan, Foreign Relations, 155. 41 On this argument McLachlan, Foreign Relations, 156. 42 Constituent Assembly of India Debates (Proceedings), Volume V, 25 August 1947, http://​loksabhaph​.nic​.in/​writereaddata/​cadebatefiles/​C25081947​.pdf.

264

Treaties in parliaments and courts

tion the policies of the government in general terms would protect its role.43 Blackstone regarded ‘parliamentary impeachment’ to be sufficient as a crucial check on the government if the right to make treaties had been ‘abused to the detriment of the public’.44 Similarly, the Germany Constitutional Court takes the view that the Bundestag possesses various alternative tools to control the executive in matters of foreign policy, pointing to its powers of questioning, debating, supervising and budget control, as well as the vote of non-confidence.45 Accordingly, parliamentary participation powers must not be construed broadly.46 12.1.2 Questioning Sole Executive Decision-Making The four arguments for sole executive treaty-making or broad executive powers in foreign affairs more generally, however, are not entirely convincing in the light of the descriptive findings, at least not in their abstract Gestalt. First, the fact that the executive possesses the institutional capacity and expertise to make foreign policy decisions does not rule out parliamentary participation in treaty-making. It is beyond question that the executive possesses superior access to information regarding a particular treaty as compared to other branches.47 Being part of international negotiation efforts on a new multilateral regime from the very start, the executive receives the information regarding a treaty at an early stage. Moreover, it possesses the institutional means to represent a state at the international level and shape its negotiating position. Nonetheless, this does not mean that parliaments should not be involved in treaty-making, but quite the contrary. The foreign policy expertise argument seems to evolve in circles. Because parliament possesses no foreign relations expertise, it should not participate in the process. However, there are some indications that the lack of participation contributes to the lack of expertise. The level of expertise is linked to the way in which information is shared between the political branches. If the executive shares information about the context of a treaty draft or treaty with the legislature, parliamentarians’ knowledge increases. Parliamentary participation in treaty-making provides

43 National Commission to Review the Working of the Constitution, Treaty-Making Power, para. 46. 44 Blackstone, Commentaries, 249. 45 Federal Constitutional Court, 2 BvE 13/83, 18 December 1984, para. 138; ibid, 2 BvE 4/11, 19 June 2012, para. 92. 46 Federal Constitutional Court, 2 BvE 13/83, 18 December 1984, para. 138; ibid, 2 BvE 4/11, 19 June 2012, para. 92. 47 Raunio and Wagner, ‘Parliamentarisation’, 9.

Towards shared treaty powers

265

an incentive for such information sharing. Being aware of the necessity of parliamentary support before ratification, the executive has an interest in comprehensively informing parliament about the treaty. Accordingly, the US state department’s procedure on treaty-making proposes that ‘the appropriate congressional leaders and committees are advised of the intention to negotiate significant new international agreements, consulted concerning such agreements, and kept informed of developments affecting them, including especially whether any legislation is considered necessary or desirable for the implementation of the new treaty or agreement’.48 Representatives of Congress occasionally even travel with the US delegation as advisors or observers to international negotiations.49 In Germany, the advantages and disadvantages of German ratification of a particular treaty are often debated in the foreign affairs committee during the negotiation process in order to prepare swift approval.50 In South Africa, scholars highlight the importance of sharing information with parliamentarians from the start of the negotiations.51 As the debates in the Senate Foreign Relations Committee, the respective competent committees of the Bundestag and the competent committees of the National Assembly indicate, parliamentarians are capable of garnering a considerable amount of information on treaties. In contrast, the Indian parliament is often rather ill-informed about the evolution of the treaty regimes. Parliamentary debates on the advantages and disadvantages of treaties did not arise as often in India as in the other three states.52 While this may partly be explained by the lack of capacity of the Indian parliament and the regional orientation of various Indian parties,53 the strong information asymmetry between the executive and legislature likely contributes to the limited action. In any case, sole executive treaty-making does not enhance the prospects of narrowing the information gap between the executive and parliament. The Indian case thus seems to be an example of the

Circular 175 Procedure, 11 FAM 725.1. Congressional Research Service, ‘Treaties and Other International Agreements: The Role of the US Senate’, January 2001, 109–11; Restatement (Fourth), § 303, Reporters’ Notes 1; L. Henkin, Foreign Affairs and the United States Constitution (Clarendon 1996), 178. 50 Arndt, ‘Praxis’, 109–10. 51 Strydom, ‘Treaty-Making’, 248–58; Ahmed, ‘Parliament’, 291–3; on a similar argument for Germany see S. Kadelbach, ‘Die parlamentarische Kontrolle des Regierungshandelns bei der Beschlussfassung in internationalen Organisationen’, in R. Geiger (ed.), Neuere Probleme der parlamentarischen Legitimation im Bereich der auswärtigen Gewalt (Nomos 2003), 41 (53–4). 52 Chapter 3.2. 53 See generally on capacity Cole, ‘Capacity’, 405; on the regional orientation of Indian parties see Ziegfeld, Regional, 170–90. 48 49

266

Treaties in parliaments and courts

circularity of the foreign expertise argument. One does not entrust parliament to take part in treaty-making due to its incompetence. However, by not requiring the Indian parliament to consent to treaties, there is no incentive for the executive to share information. Also, undue prolongation of the decision-making process through parliamentary participation does not seem to be a major problem in practice. Of course, reluctance of parliamentary chambers to support certain treaties may slow down treaty ratification considerably. The almost 40 years it took the US to ratify the Genocide Convention after US signature in 1949 is the most extreme example.54 Also, parliamentary participation in Britain’s withdrawal from the EU prolonged the decision-making procedure considerably.55 Generally speaking, parliamentary debates take more time than sole executive decision-making. However, states rarely need to hurry, to participate and join a treaty in a matter of weeks or months. Instead, treaty-making takes time, allowing the preparation of proper parliamentary processes. Thus, it is not surprising that parliamentary participation in treaty-making usually does not considerably slow down ratification. For instance, South Africa ratified the CRPD six months after its signature, taking the same amount of time as India.56 Also, South Africa and Germany ratified the Paris Agreement six months after signature, around the same time as India.57 The German parliament adopted the approval law in an accelerated procedure to signal its strong support for the Agreement.58 Also, in relation to withdrawal, the argument that parliamentary participation prevents a rapid reaction to foreign policy crises seems rather unconvincing.59 Many treaties contain rather long ‘cooling off’ periods before the withdrawal becomes effective.60 Article 127 of the Rome Statute calls for a one-year notice period, while Article 28 of the Paris Agreement allows for

Korey, ‘Genocide’, 289–90. On parliament’s influence on the negotiations, P. Lynch, R. Whitaker and A. Cygan, ‘Brexit and the UK Parliament: Challenges and Opportunities’, in T. Christiansen and D. Fromage (eds), Brexit and Democracy (Palgrave Macmillan 2019), 51. 56 UNTC, ‘CRPD’. 57 UNTC, ‘Paris Agreement’. 58 Bundestag, Plenarprotokoll 18/190, 18844–5. 59 For the argument see H. Butzer and J. Haas and A. Deutelmoser, ‘Art. 59’, in B. Schmidt-Bleibtreu and H. Hofmann and H.-G. Henneke (eds), Kommentar zum Grundgesetz (Heymanns, 15th ed. 2022), para. 66; H.-W. Bayer, Die Aufhebung völkerrechtlicher Verträge im deutschen parlamentarischen Regierungssystem: zugleich ein Beitrag zur Lehre vom Abschluß völkerrechtlicher Verträge nach deutschem Recht (Heymann 1969), 211–12. 60 On ‘cooling off’ see L. Helfer, ‘Exiting Treaties’, Virginia Law Review 91 (2005), 1579 (1648). 54 55

Towards shared treaty powers

267

notification of withdrawal to be made only three years after the Agreement’s entry into force in November 2016, and also provides for a one-year notice period. Accordingly, the Trump administration’s withdrawal announcement in June 2017 on behalf of the US did not become effective until November 2020.61 Rapid detachment from a treaty is often no real political option. Second, it is not clear that parliamentary participation in treaty-making will necessarily ruin the credibility of a state and weaken its negotiating position. It is true that a state’s abstention from a treaty regime due to parliamentary intervention may lead to a loss of reputation. Negotiating partners of the US often cannot trust that the Senate will not veto a negotiated treaty. Even though US governments considerably influenced the negotiating process on some of the treaties discussed here, the US often did not become a party. The Clinton administration’s support for the Kyoto Protocol and the Obama administration’s embrace of the CRPD created expectations among other states that the US was not able to meet. This may decrease other states’ confidence in US promises in the first place and may even lead to a loss of US bargaining power.62 John Bellinger III, who was a legal adviser in the Bush II administration, suggested that it would be ‘highly frustrating to other countries when we have in fact gotten changes made to a treaty and then we don’t become party’.63 In some cases ‘our negotiating partners have no confidence that the executive branch will necessarily be able to get a potentially controversial treaty through the Senate’.64 This would ‘undermine the negotiating effectiveness of our State Department and other negotiators’.65 Nonetheless, the US case seems to be rather exceptional as it stems from specific institutional and contextual factors.66 This study has shown that the majority parliamentary consent requirement in the treaty-making processes in South Africa and Germany does (usually) not impede the treaty-making process. The parliamentary chambers support the treaties discussed here in line with the executive in almost all cases.67 Accordingly, negotiating partners of the two states can usually be confident that the respective parliaments will not veto the executive approach.

UNTC, ‘Paris Agreement’. J. Galbraith, ‘Prospective Advice and Consent’, Yale Journal of International Law 37 (2012), 247 (248). 63 Interview by Toni Johnson with John B. Bellinger III, ‘U.S. Trouble with Star and Other Treaties’, 8 July 2010, www​.cfr​.org/​interview/​us​-trouble​-start​-and​-other​ -treaties. 64 Ibid. 65 Ibid. 66 Chapter 2.1 and 2.5. 67 Chapter 3.1. 61 62

268

Treaties in parliaments and courts

Moreover, treaty negotiators might take the positions of the constitutionally mandated parliamentary actors into account. On a theoretical level, it has been suggested that governments may successfully use their domestic constraints to achieve better results in international negotiations.68 As this study has shown, the US successfully introduced language on non-binding climate mitigation obligations into the Paris Agreement also because the negotiating partners feared that the Senate or Congress would block an agreement with binding language. As discussed in detail above, EU Climate Commissioner Miguel Arias Canete highlighted the necessity of having the US ‘on board’ and indicated that the EU ‘understand[s] the concerns they have because of the political situation they have in the Congress’.69 When US negotiators argued that they could not accept binding language on developed countries’ climate mitigation obligations, the EU and developing countries gave in, fearing that congressional involvement in the US decision-making process would endanger US participation in the treaty regime.70 The negotiating partners were willing to grant the Obama administration the non-binding language necessary for the conclusion of the Paris Agreement as a sole executive agreement under US foreign relations law. The internalization of the US foreign relations law argument shows that domestic constraints may well be recognized at the international level.71 Similarly, in relation to the Comprehensive Economic and Trade Agreement (CETA) it has been suggested that the EU received a large range of concessions from Canada because domestic actors (including parliaments) at different levels indicated that they would only consent to the treaty under certain conditions.72 In this sense, at times inconsistent positions of the executive and legislature might even be an advantage for strengthening the overall negotiating power of a particular state. While one might criticize the use of foreign relations law as a bargaining tool,73 this demonstrates negotiating partners’ awareness and willingness to respond to the policy preferences of parliamentary chambers in a particular state, if necessary. Third, parliamentary participation in treaty-making does not necessarily lead to lower ratification rates in relation to multilateral treaties. In Germany and South Africa, the requirement of majority consent by parliament does not lead to low ratification rates. Because the parliamentary chambers in both states

68 On the two-level game see T. Schelling, The Strategy of Conflict (Harvard University Press 1960); R. Putnam, ‘Diplomacy and Domestic Politics: The Logic of Two-Level Games’, International Organization 42 (1988), 427. 69 Richardson, ‘Republicans’. 70 Raman and Chiew, ‘Paris Agreement’. 71 Chapter 4. 72 De Bièvre, ‘Paradox’, 79. 73 Lange, ‘Bargaining Tool?’, 23.

Towards shared treaty powers

269

support the executives’ embracement of the treaties discussed here, the number of ratifications is rather high.74 The general support by majority parties for the foreign policies of ‘their’ government in parliamentary democracies and the high reputation of the respective treaties among various domestic German and South African parties foster parliamentary promotion of the treaties.75 At least in parliamentary systems in which the executive and the parliamentary majority in the legislature act as a ‘political community of action’,76 parliamentary vetoes are rather unlikely. In contrast, the US Senate’s role as the veto player par excellence can be attributed to specific institutional and contextual factors. The exceptionally high two-thirds majority threshold for Senate consent provides the institutional setting in which the veto player role emerged.77 Historically, the two-thirds majority threshold stems from a political compromise during the founding of the US. The Articles of Confederation required nine out of 13 votes in the Continental Congress prior to treaty ratification.78 The retention of a similar threshold under the 1789 constitution was supposed to protect the interests of the states, in particular because states were not allowed to conclude treaties themselves.79 More concretely, Southern states regarded the threshold as the crucial safeguard to keep their monopoly on navigation rights on the Mississippi river, fearing that a majority of Northern states would transfer these rights to Spain in exchange for trade concessions.80 Today, the Senate’s veto player role needs to be understood in the political context in which the veto is exercised. The (threat of) veto against the treaties examined here may be explained by their link to polarizing domestic debates about abortion, US military engagement abroad and the depth of environmental regulation in the US domestic order.81 The specifics of the US case, thus, do not lend themselves to the argument that parliamentary participation generally inhibits the treaty-making process.

74 As mentioned above, Germany ratified 16 out of 18 of the core UN human rights treaties (including their optional protocols), South Africa 13, India 8 and the United States 5. 75 Chapter 3.1 and 3.2. 76 On the ‘political community of action’, Link, ‘Parteiendemokratie’, 542. 77 Moravcsik, ‘Paradox’, 187. 78 Article IX of the Articles of Confederation; on this see already C. Burdick, ‘The Treaty-Making Power’, Foreign Affairs 10 (1932), 265 (266–7). 79 Article I, Section 10 of the constitution explicitly prohibits the states from entering into ‘any treaty’. 80 C. Warren, ‘The Mississippi River and the Treaty Clause of the Constitution’, George Washington Law Review 2 (1934), 271; Hathaway, ‘Treaties’ End’, 1278–86. 81 Chapter 2.1.

270

Treaties in parliaments and courts

Fourth, the Indian practice based on sole executive treaty-making does not suggest that alternative means of participation allow for the same protection of parliament’s role. During the process of adopting implementing legislation, Indian parliamentarians did not discuss the advantages or disadvantages of the treaties examined in this study in depth. In fact, references to the content of human rights treaties played a minor role in the context of the legislative transformation of the CEDAW, CRC and CRPD into the domestic order.82 On a more abstract level, the debate during implementation will likely not be linked to the decision-making process on the international level, because it often takes a long time after ratification of a treaty for implementing legislation to be passed. While parliamentarians may in theory signal their unwillingness to implement a treaty before ratification and thus influence the decision-making of the government, there exists little evidence for such practice.83 Moreover, inquiries and motions are not functional equivalents of participation in treaty-making but rather additional means. Opposition parliamentarians in all four states use inquiries and motions to question the executive’s treaty policies.84 The Indian reliance on such instruments does not run particularly deep, at least in relation to the treaties discussed here.85 When a parliamentary standing committee criticized various stipulations of the draft on the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in a report in the early 1990s, this did not have any effect.86 The executive signed and ratified the agreement on behalf of India.87 Inquiries and motions do not seem to compensate for the lack of parliamentary participation in treaty-making. Last but not least, the non-confidence vote will be only used in exceptional cases and does not allow for general parliamentary scrutiny of treaties. The (failed) non-confidence vote on the ‘123 Agreement’ shows that treaties may trigger such constitutional processes,88 but the political stakes must be high. The relatively low scrutiny of treaties in the Indian parliament seems to be linked to the lack of parliamentary participation in treaty-making.

Chapter 5.4. For an exceptional case concerning the proposed Joint Australia–New Zealand Scheme for the Regulation of Therapeutic Products, McLachlan, Foreign Relations, 170. 84 Chapter 3.2. 85 Chapter 3.2.1. 86 National Commission to Review the Working of the Constitution, Treaty-Making Power, para. 45. 87 Ibid, para. 45. 88 Chapter 2.2. 82 83

Towards shared treaty powers

12.2

271

THE PLACE OF PARLIAMENT

12.2.1 The Case for Parliamentary Consent The consensus of enlightenment theorists and constitutional lawyers as to the executive prerogative in foreign affairs was challenged in the context of the various revolutions of the late eighteenth century.89 In the United States, leading figures in the constitutional drafting process such as Alexander Hamilton proposed Senate participation in the domestic treaty-making process.90 The drafters could build on the notion developed by Hugo Grotius, Christian Wolff and Emer de Vattel that a sovereign state is free to decide which of its domestic organs possesses the treaty-making power.91 Vattel, whose text strongly influenced the US debate, emphasized that some leaders of a sovereign state ‘have to take the advice of a Senate or of the Representatives of the Nation’, since the law of the state would determine ‘which Authority is capable of contracting validly in the name of the State’.92 Article II, Section 2, Clause 2 of the US constitution provided for senatorial ‘advice and consent’ to treaties partly because of the continuing influence of the Articles of Confederation.93 The Articles of Confederation had vested the treaty-making power in the Continental Congress, staffed with representatives of the 13 states.94 The Senate, consisting of members from each state, was the successor of the Continental Congress. Thus, the Senate was supposed to play a key role in treaty-making. In fact, an early draft of the constitution had vested the Senate alone with the ‘power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court’.95 By transferring the treaty-making power to the President and allowing the Senate only to provide advice and consent, the final constitution deviated from the tradition of the Articles of Confederation.96 Nonetheless, because the US constitution conceives the Senate to be part of the legislative branch, Article II, Section 2 of the constitution meant breaking with the Blackstonian vision of the executive prerogative in foreign affairs.97 For some hints of earlier practice see Haggenmacher, ‘Hints’, 326–36. Publius (A. Hamilton), ‘The Treaty Making Power of the Executive’, The Federalist No. 75. 91 Haggenmacher, ‘Hints’, 322–5. 92 E. Vattel, Le Droit de Gens Ou Principes de la Loi Naturelle (Carnegie Institution, 1916, reproduction of 1758), 369; translation by Haggenmacher, ‘Hints’, 324. 93 Haggenmacher, ‘Hints’, 338–9. 94 Article IX of the Articles of Confederation of 1 March 1781. 95 C. Tansill, ‘Treaty-Making Powers of the Senate’, AJIL 18 (1924), 459 (459). 96 Haggenmacher, ‘Hints’, 338–9; Tansill, ‘Treaty-Making’, 459. 97 Bestor, ‘Separation’, 529–40. 89 90

272

Treaties in parliaments and courts

Apart from the US constitution, other novel constitutions empowered the legislature to participate in treaty-making in the late eighteenth century. The Polish–Lithuanian constitution of 1791 explicitly prohibited the executive ‘to conclude definitely any treaty, or any diplomatic act’ and stipulated that the legislature should make laws to ratify treaties.98 The 1791 constitution of revolutionary France provided the executive with power to negotiate and conclude treaties with foreign nations, but called for the legislative ‘ratification’ – which meant approval – of the treaties.99 During the nineteenth century, the influential Belgian constitution of 1831 required legislative approval as a precondition for concluding treaties concerning commerce and triggering financial obligations.100 In Germany, the constitution of the North German Confederation, as early as 1867, contained rules on legislative participation.101 While an early draft of the Bismarck-led Prussian government envisioned sole executive treaty-making of the King of Prussia,102 some Bundesstaaten and parliamentarians in the Reichstag successfully pushed for the introduction of participatory competences.103 The 1871 constitution of the German Empire required consent of the Bundesrath before conclusion as well as sanction of the Reichstag before ratification for treaties that fall under the legislative competences of those bodies.104 Beyond these developments in Europe, some of the emerging states in Latin America, such as Argentina, Bolivia, Columbia and Costa Rica, opted for parliamentary participation in treaty-making in their constitutions from the mid-nineteenth century on.105 For instance, the 1853

98 Article VI, 2d and Article VII of the Polish–Lithuanian Constitution of 3 May 1791. 99 Chapter III, Section 1, Nr. 3; Chapter IV, Section 3 of the French Constitution of 3 September 1791; see also Article 55 of the French Constitution of 24 June 1793. 100 Article 68 of the Belgian Constitution of 1831; on this see R. Schütze, Foreign Affairs and the EU Constitution (CUP 2014), 361; Wildhaber, Treaty-Making, 12; P. Verdier and M. Versteeg, ‘Separation of Powers, Treaty-Making, and Treaty Withdrawal: A Global Survey’, in C. Bradley (ed.), The Oxford Handbook of Comparative Foreign Relations Law (OUP 2019), 135 (139). 101 Article 11(2) of the constitution of the North German Confederation of 1867. 102 B. Fassbender, Der offene Bundesstaat. Studien zur auswärtigen Gewalt und zur Völkerrechtssubjektivität bundesstaatlicher Teilstaaten in Europa (Mohr Siebeck 2007), 102. 103 Fassbender, ‘Bundesstaat’, 113–14; 117–19. 104 Article 11 of the constitution of the German Empire, 4 May 1971; on this see K. Stern, Das Staatsrecht der Bundesrepublik Deutschland. Band V. Die geschichtlichen Grundlagen des Deutschen Staatsrechts (Beck 2000), 383–4; E. Huber, Deutsche Verfassungsgeschichte seit 1789. Band III: Bismarck und das Reich (Kohlhammer, 3rd ed. 1988), 939–40. 105 De Visscher, Conclusion, 102–3.

Towards shared treaty powers

273

constitution of Argentina vests Congress with the power ‘to approve or reject treaties concluded with other nations’.106 Support for legislative participation in treaty-making has grown through the twentieth century and up to the present day. Many of the constitutions drafted during the period of decolonization envision parliamentary consent.107 During the wave of constitution-making after the end of the Cold War, most states adopted the model of shared treaty-making competences.108 In the South African post-apartheid constitution-making process, the introduction of parliamentary participation in treaty-making seemed self-understood even though (or because) apartheid South Africa had followed the Westminster tradition of the executive prerogative.109 The 1993 interim constitution opted for parliamentary participation in the treaty-making process in light of similar provisions in the Namibian constitution.110 The 1996 final constitution distinguished between treaties requiring parliamentary approval and technical agreements.111 In any case, the introduction of the parliamentary consent requirement has been praised as a ‘democratization of the treaty process unprecedented in South African law’.112 The arguments advanced in favour of parliamentary participation are threefold. First, it is suggested that participation enables parliamentary control of the executive. Second, it is claimed that legislative involvement in treaty-making enhances democratic legitimacy. Third, some put forward that parliament needs to participate to guarantee implementation of a state’s treaty obligations.113 On the first point, commentators have emphasized the necessity of legislative control of the executive from the eighteenth century on. In Federalist Paper No. 75, Hamilton justified Senate participation in the treaty-making by warning that ‘[a]n ambitious man might make his own aggrandizement,

106 J.M. Ruda, ‘The Role of the Argentine Congress in the Treaty-Making Process’, Chicago-Kent Law Review 67 (1991), 485 (489–90). 107 See generally Verdier and Versteeg, ‘International Law’, 519. 108 Ibid, 519. 109 Olivier, ‘Status’, 6–7; Dugard and Coutsoudis, ‘Place’, 64; 72. 110 Olivier, ‘Status’, 6–7. 111 Dugard, ‘International Law’, 81–3; Harrington, ‘Scrutiny’, 143–6. 112 Botha, ‘Reassessment’, 77. 113 Some arguments are also addressed to particular constitutional designs. Hamilton argued that in light of the US supremacy clause ‘the operation of treaties as laws, plead[s] strongly for the participation of the whole or a portion of the legislative body in the office of making them’, Publius (A. Hamilton), ‘The Treaty Making Power of the Executive’, The Federalist No. 75; more generally, McLachlan, Foreign Relations, 156–61.

274

Treaties in parliaments and courts

by the aid of a foreign power, the price of his treachery to his constituents’.114 Historical experience would show that one should not ‘commit interests of so delicate and momentous a kind as those which concern [a nation’s] intercourse with the rest of the world to the sole disposal of a magistrate, created and circumstanced, as would be a president of the United States’.115 In the 1810s, French constitutional thinker Benjamin Constant pointed to potential abuses of the executive treaty-making power since the king might attempt to override constitutional protections through concluding treaties with foreign nations. ‘Despotism and persecution, disguised as peace treaties, would return from abroad; and the king’s ambassadors would be the real legislature of such a people.’116 British constitutional lawyer Walter Bagehot criticized the practice of sole executive treaty-making in Britain. Even though he was critical of the US American separation of powers,117 he supported parliamentary participation in treaty-making.118 Bagehot suggested that there would be a ‘plainer way of dealing with foreign policy, if Ministers were obliged to explain clearly their foreign contracts before they were valid, just as they have to explain their domestic proposals before they can become law’.119 Because treaties would be ‘quite as important as most laws’, it would be ‘prima facie ludicrous’ to require parliamentary consent to the latter and ‘not to consult [the legislature] even as to the essence’ of the former.120 This reasoning also found its way into constitutional practice. In Germany, the Constitutional Court emphasizes the linkage of Article 59(2) of the Basic Law on parliamentary participation in treaty-making to the separation of powers and the control of the executive.121 According to the Court, Bundestag participation in treaty-making aims at ‘not letting long-term […] binding international law come about without assent from the Bundestag’.122 In the words of the Court, parliamentary participation ‘serves to enable the legislative branch to exercise timely, and thus effective, control over the executive

114 Publius (A. Hamilton), ‘The Treaty Making Power of the Executive’, The Federalist No. 75. 115 Ibid. 116 Constant nonetheless took the view that the royal power in foreign affairs is inviolable: B. Constant, Cours de Politique Constitutionnelle (Librairie de Guillaumin, 2nd ed. 1872), 302; translated by Schütze, Foreign Affairs, 360–1. 117 Bageshot stated that ‘[t]he splitting of sovereignty into many parts amounts to there being no sovereign’: W. Bagehot, The English Constitution (Kegan Paul/Trench/ Trübner Co, 7th ed. 1894), 227. 118 Ibid, lii. 119 Ibid, xlvii. 120 Ibid, xli. 121 Federal Constitutional Court, 2 BvE 3/51, 29 July 1952, para. 83. 122 Federal Constitutional Court, 2 BvE 13/83, 18 December 1984, para. 140.

Towards shared treaty powers

275

branch’.123 Similarly, the High Court of South Africa grounded its ICC withdrawal decision on an understanding of the proper separation of powers. The Court emphasized that parliament needed to approve treaty withdrawal because Section 231(2) of the constitution would provide for a ‘clear separation of powers between the national executive and the legislature’.124 In the US, various observers regard the requirement of senatorial consent to treaties to be justified by the necessity of Senate control over the President.125 In India, the National Commission to Review the Working of the Constitution emphasized in 2001 that it is ‘essential to think of subjecting the treaty-making power of the Central Government to appropriate checks and controls’.126 Second, many observers advocate parliamentary participation in treaty-making to counter a perceived ‘democracy deficit’ and enhance the democratic legitimacy of treaty-making.127 In response to the transfer of decision-making power to the international level, scholars recommend granting parliament a stronger role in foreign affairs.128 Domestic parliaments should have a say because they seem to be the ‘great institutional loser in the shift from classical international law to international law as governance’.129 The ‘democratic legitimacy’ argument found ways into the constitutional debates. In India, various commentators criticize the ‘unfettered’ and ‘sweeping’ treaty power of the executive and suggest that the Lok Sabha and Rajya Sabha should become involved to enhance the democratic legitimacy of treaties in the Indian constitutional order.130 The National Commission to Review

123 Federal Constitutional Court, 2 BvL 1/12, 15 December 2015, para. 44; see also Federal Constitutional Court, 2 BvE 2/16, 17 September 2019, para. 32. 124 High Court of South Africa (Gauteng Division, Pretoria), Case No: 83145/2016, 22 February 2017, para. 51; accordingly, some observers highlighted the importance of the parliamentary check of the executive branch: McLachlan, ‘Assault’, 31–3. 125 S. Riesenfeld and F. Abbott, ‘The Scope of US Senate Control over the Conclusion and Operation of Treaties’, Chicago-Kent Law Review 67 (1991), 571; Henkin, Foreign Affairs, 178. 126 National Commission to Review the Working of the Constitution, Treaty-Making Power, para. 45. 127 On this argument McLachlan, Foreign Relations, 156. 128 M. Herdegen, ‘Leistungsgrenzen des Verfassungsrechts. Informalisierung und Entparlamentarisierung politischer Entscheidungen als Gefährdung der Verfassung?’ VVDStRL 62 (2003) 7 (27–8); A. Paulus, ‘Völkerrechtsfreundlichkeit und -skepsis in der politischen Praxis der deutschen Exekutive und Legislative’, in T. Giegerich (ed.), Der ‘offene Verfassungsstaat’ des Grundgesetzes nach 60 Jahren. Anspruch und Wirklichkeit einer großen Errungenschaft (Duncker & Humblot 2010), 73 (89). 129 M. Kumm, ‘The Legitimacy of International Law: A Constitutionalist Framework of Analysis’, EJIL 15 (2004), 907 (915–16). 130 Rajamani, ‘Constitutional Schema’, 155; see also U. Baxi, ‘Treaties’, 151; Singh, ‘Treaties’, 60–71; Mani, ‘Effectuation’, 161–5; on the ‘negligible’ foreign policy influ-

276

Treaties in parliaments and courts

the Working of the Constitution pointed to the ‘urgent need to democratize the process of treaty making’.131 In South Africa, broad powers of parliament in relation to treaties are justified with similar arguments. In Earthlife Africa v Minister of Energy, the High Court of South Africa embraced a narrow construction of agreements of ‘technical, administrative or executive nature’ that require no parliamentary consent (Section 231(3) of the South African constitution) since this would ‘give optimal effect to the fundamental constitutional principles of the separation of powers, open and accountable government, and participatory democracy’.132 In the US, some commentators favour the conclusion of treaties as congressional–executive agreements over their conclusion as Article II treaties, to increase democratic legitimacy by including both parliamentary chambers in the decision-making process.133 In Germany, the Constitutional Court summed up its long-standing jurisprudence on parliamentary participation in 2019 by suggesting that ‘legislative consent in the form of an act of approval […] provid[es] legitimation for government action taken in the execution of the treaty at the level of international law’.134 Third, at times parliamentary participation is considered to enhance the implementation of a state’s treaty commitments. While this argument does not seem to have played a strong role in theory, it is mentioned in constitutional practice. In particular, the German Constitutional Court emphasizes the necessity to secure implementation and compliance with the treaty obligations through parliamentary participation.135 The Court states that ‘the Government is not to assume international obligations without the participation of the legislative bodies when it is unable to fulfil these obligations under its own competence and without action by the legislative bodies’.136 In the 2019 decision, the Court emphasized that parliamentary participation in treaty-making ‘ensur[es] the applicability of an international treaty at the domestic level’.137

ence of Indian parliament see K. Sridharan, ‘Parliamentary Opposition and Indian Foreign Policy’, Asian Journal of Political Science 4 (1996), 15. 131 National Commission to Review the Working of the Constitution, Treaty-Making Power, para. 51. 132 High Court of South Africa, Earthlife Africa v Minister of Energy 2017 (5) SA 277 (WCC), 26 April 2017, para. 114. 133 Hathaway, ‘Treaties’ End’, 1308–12; Henkin, Foreign Affairs, 215–18. 134 Federal Constitutional Court, 2 BvE 2/16, 17 September 2019, para. 32. 135 Federal Constitutional Court, 2 BvE 2/51, 29 July 1952. 136 Ibid, para. 80. 137 Federal Constitutional Court, 2 BvE 2/16, 17 September 2019, para. 32.

Towards shared treaty powers

277

12.2.2 From Control to Opening Discursive Space How do these arguments about parliamentary control of the executive enhancing the democratic legitimacy of treaty-making and securing compliance with treaties present themselves in light of the descriptive findings? First, one could doubt whether parliamentary participation in treaty-making triggers effective parliamentary control of the executive. At least in South Africa and Germany,138 the National Assembly and the Bundestag confirm the executive view during the treaty-making process. The National Assembly did not veto any treaty that received the support of the South African executive. Neither did the Bundestag block any treaty that different governments intended to ratify on behalf of Germany. Instead, both parliaments supported the executive’s take on the treaties discussed here.139 The interlinkages between the parliamentary majority and the government in parliamentary democracies contribute to this deference. In contrast to presidential systems, in parliamentary systems the parliamentary majority and the government build a ‘political community of action’.140 Because the executive and legislature are not political opponents, deviations from the government line and critique of its position by the parliamentary majority are rare, as is also the case in domestic law. The incentives for parliamentary support of the executive approach are even amplified in the context of the treaty-making process. The parliamentary chambers are not allowed to suggest changes to the negotiated treaty. According to German parliamentary procedure, the parliamentary chambers may only vote ‘yes’ or ‘no’.141 Similarly, in the South African procedure, parliament may not use the resolution on the approval of a treaty to change its substance.142 Even though the parliamentary chambers in both countries may urge the government to suggest reservations to a treaty,143 the general ‘take it or leave it’ situation may make parliamentary consent to

138 In the US, the Senate often deviates from the position of the executive branch: Chapter 2.1; in India, the parliamentary chambers do not take part in treaty-making. 139 Chapter 3.1.2. 140 Link, ‘Parteiendemokratie’, 542. 141 §§ 81(4), 82(2) GOBT; for situations in which parliaments needs to be able to shape legislation, K. Vogel, ‘Gesetzesvorbehalt, Parlamentsvorbehalt und völkerrechtliche Verträge’, in P. Badura (ed.), Wege und Verfahren des Verfassungslebens. Festschrift für Peter Lerche zum 65. Geburtstag (Beck 1993), 95 (100–5). 142 The Department of Constitutional Development, Constitutional Handbook for Members of the Executive (1999), 45; Botha, ‘Reassessment’, 79. 143 For South Africa see Department of Constitutional Development, Handbook, 45; in the US, the Senate is not required to adopt a treaty but may modify or amend, which is mostly done through RUDs; on this Restatement (Fourth), § 303, Reporters’ Notes 4; for practice in Germany, S. Kadelbach, ‘International Treaties and the German

278

Treaties in parliaments and courts

a negotiated document more likely even if concerns about its substance exist.144 Against this background, parliamentary participation in treaty-making seems to offer no effective control of the executive and could be regarded to be merely symbolic. However, the fact that the National Assembly and Bundestag do not use their participation rights in the treaty-making process to veto treaties is no convincing argument against such power. In fact, the lack of critique expressed by the parliamentary majority towards the government position also stems from the foreign policy consensus in relation to the treaties discussed here.145 In more controversial situations, (parts of) the parliamentary majority may well be more reluctant to follow the executive. In Germany, some SPD parliamentarians were not willing to endorse the CDU/CSU and SPD-led government’s support for CETA triggering a controversial debate.146 In any case, the parliamentary participation requirement calls on the government to assure that it possesses enough political support for its foreign policy concerning a certain treaty. Second, requiring a parliamentary approval law or a resolution of consent seems to enhance democratic legitimacy, in particular through enabling the opposition to engage with a treaty.147 The advantages and disadvantages of treaty ratification become part of a parliamentary discussion enhancing transparency and participation.148 Often, members of parliament will agree with the government’s approach to a treaty; however, at times they will not. The opposition may use the debate on an approval law or on the revocation of a treaty to offer an alternative position on a certain treaty project. Because the political fault line in parliamentary democracies runs between the government and parliamentary majority on the one hand and the parliamentary minority on

Constitution’, in C. Bradley (ed.), The Oxford Handbook of Comparative Foreign Relations Law (OUP 2019), 173 (179). 144 Along these lines also Ley, ‘Alternativität’, 231; ibid, Opposition im Völkerrecht (Springer 2015), 2; U. Volkmann, ‘Setzt Demokratie den Staat voraus?’ AöR 127 (2002), 575 (597–8); on the so-called Ratifikationslage, Schorkopf, Staatsrecht, 305. 145 Chapter 3.1. 146 On this R. Kiesel, ‘Ceta und die SPD: Ein Abkommen, viele Meinungen’, 19 September 2016, www​.vorwaerts​.de/​artikel/​ceta​-spd​-abkommen​-viele​-meinungen. 147 Emphasizing the importance of institutionalized opposition for legitimacy see Ley, Opposition, 183–207. 148 On these virtues, Versteeg and Verdier, ‘Separation’, 142.

Towards shared treaty powers

279

the other,149 the participation of the opposition in the debate is key for enabling the development of alternative foreign policy conceptions.150 There exists some evidence for this role of the opposition in practice. In Germany, the parliamentary group of the SPD tabled approval laws to accelerate the treaty-making process on the OP to the ICCPR.151 In relation to the OP to the ICCPR, this proved successful, since the legal committee supported the opposition bill against the government.152 After the government accepted the parliament’s demands, the Bundestag unanimously adopted the approval law to the treaty, which had been initiated by the opposition.153 In the US, the specific constitutional structure and polarized political context led to vibrant discussion about the benefits of treaty ratification in the Foreign Relations Committee. While the extraordinary high two-thirds majority threshold made it possible for some Republican senators to successfully veto or threaten to veto certain treaties, in principle the treaty-making process provided the space for a debate about the advantages and disadvantages of treaties.154 In South Africa, the opposition played no major role in questioning the stance of the government on the approval laws because of the broad foreign policy consensus.155 However, it is likely that a parliamentary debate on the withdrawal of the ICC would have allowed the DA to expose its support for the Court.156 Even though the opposition may also use motions to call for ratification of certain treaties,157 it seems not unlikely that a debate about an approval law will receive more attention than a mere motion. Accordingly, parliamentary participation in treaty-making seems valuable where one believes that the opposition should be able to effectively express its alternative foreign policy vision. Third, this study provides evidence that parliamentary participation in treaty-making has some effects on treaty implementation. Especially in Germany, the debate on the approval law to a treaty at times foreshadows future controversies about a treaty’s implications in the domestic order. In

149 Link, ‘Parteiendemokratie’, 542; generally on this, E. Schuett-Wetschky, ‘Gewaltenteilung zwischen Bundestag und Bundesregierung?’, in K. Dicke (ed.), Der demokratische Verfassungsstaat in Deutschland (Nomos 2001), 67. 150 On the opposition as providing alternative policy concepts, Ley, ‘Alternativität’, 240–3; Ingold, Oppositionen, 244. 151 Bundestag, Drucksache 12/556, 16 May 1991. 152 Bundestag, Drucksache 12/2388, 7 April 1992, 5. 153 Bundestag, Plenarprotokoll 12/113, 15 October 1992, 9593–600. 154 See for instance the debate on the CRPD, 112th Congress, Senate Exec. Report 112-6, ordered to be printed 31 July 2012, 13–16. 155 Chapter 3.1. 156 On the position of the DA see Chapter 3.3. 157 See for instance the interpellation by the Green Party on the status of the Doha Amendment to the Kyoto Protocol, Bundestag, Drucksache 17/12799, 18 March 2013.

280

Treaties in parliaments and courts

relation to the CRPD, politicians from the Left Party, the Green Party and the FDP in opposition dismissed the proposition of the government memorandum that no implementing legislation was necessary.158 Instead, the parliamentary groups in opposition claimed that domestic laws would not provide for full equal opportunities of people with disabilities in the German society as envisioned in the treaty.159 Building on this debate, opposition parties pointed to the lack of implementation as an argument to support various legislative proposals.160 This constant pressure of the opposition arguably had some effect on the majority position. In 2016, the parliamentary majority adopted a new Federal Participation Act (Bundesteilhabegesetz) inspired by the CRPD and the CRPD Committee’s criticism.161 In contrast, while in India the legislature implemented some human rights treaties, at times this was only after the Supreme Court had called on the legislature to act.162 While parliamentary inaction may be linked to the lack of capacity and the regional outlook of various parties in the Lok Sabha,163 the non-involvement of parliament in the treaty-making process also seems to contribute to the hesitant approach. Because sole executive treaty-making in India leaves the parliamentary chambers ill-informed about treaties, the legislative possibilities in relation to the treaties discussed here are often not fully explored. All in all, parliamentary participation in treaty-making seems to broaden the prospects for debates about the benefits of treaty ratification and the effects of treaties in the domestic legal order. In order to enable the opposition to devise an alternative foreign policy and an alternative domestic implementation policy, it seems reasonable to also consider formalizing early parliamentary participation in the treaty-making process.164 While some foreign relations laws contain rules on early provision of information of the legislature about 158 Even parliamentarians from the governing CDU/CSU and SPD expressed criticism of the government memorandum and the translation: Bundestag, Plenarprotokoll 16/186, 12 November 2008, 19906–10. 159 Bundestag, Drucksache 16/10841, 12 November 2008, 1–2; Drucksache 16/11244, 3 December 2008, 1–2. 160 On these proposals see Chapter 5.4. 161 Gesetz zur Stärkung der Teilhabe und Selbstbestimmung von Menschen mit Behinderungen, 23 December 2016, Bgbl, Teil I Nr. 66, 2016, 3234. 162 Vishaka v State of Rajastan, AIR 1997 SC 3011, 13 August 1997; on this Chapter 7.4. 163 On the regional outlook of Indian parties, Ziegfeld, Regional, 170–90; generally, on the relevance of capacity for the implementation of (human rights) treaties, Cole, ‘Gap’, 405. 164 E. Wolfum, ‘Kontrolle der auswärtigen Gewalt’, VDStRL 56 (1997), 38 (46–7); C. Möllers, Gewaltengliederung. Legitimation und Dogmatik im nationalen und internationalen Rechtsvergleich (Mohr Siebeck 2005), 373–4; Strydom, ‘Treaty-Making’, 248–58.

Towards shared treaty powers

281

treaty negotiations,165 no such formal powers exist in the four jurisdictions de lege lata.166 However, parliamentarians are keen to gain such powers in the context of the transfer of decision-making powers to the international level. For instance, in 2013 the South African Portfolio Committee on International Relations explored the potential of early involvement in the treaty-making process to guarantee greater democratic accountability.167

12.3

PARLIAMENTARY PARTICIPATION IN TREATY WITHDRAWAL

12.3.1 Sole Executive Treaty Withdrawal The doctrines on treaty withdrawal have developed differently in the four states. Three states embrace the practice of sole executive treaty withdrawal. In India, the Lok Sabha and Rajya Sabha are not involved in treaty withdrawal. The executive rarely withdraws from treaties, with the exception of the field of investment law.168 India lost some arbitral cases against foreign investors; after this, since 2015, the executive has denounced more than 50 bilateral investment treaties on behalf of India.169 Parliament did not play a role in these processes but only received the information about the terminations upon 165 According to Article 218(10) of the Treaty on the Functioning of the European Union, ‘[t]he European Parliament shall be immediately and fully informed at all stages of the [treaty-making] procedure’. 166 According to the South African constitution, ‘[t]he negotiating and signing of all international agreements is the responsibility of the national executive’ (Section 231 (1) of the constitution). In the US, the senatorial advice criterion was soon interpreted to not formally require the President to consult with the Senate during negotiations, see C. Bradley and M. Flaherty, ‘Executive Power Essentialism and Foreign Affairs’, Michigan Law Review 102 (2004), 545 (626–31); in Germany, in the 2012 decision on the European Stability Mechanism, the Constitutional Court held that the federal government had violated the rights of the German Bundestag by not properly informing the Bundestag about the negotiations on the mechanism. The Court contrasted parliamentary participation rights in the European context under Article 23(2) of the Basic Law with the rather narrow conception of parliament’s role in relation to international treaties Federal Constitutional Court – 2 BvE 4/11, 19 June 2012, para. 93. 167 Report of the Portfolio Committee on International Relations and Cooperation on the workshop held on the role of Parliament in treaty-making processes, 14 August 2013, https://​pmg​.org​.za/​tabled​-committee​-report/​1344/​. 168 For the debate on ‘withdrawing’ from the Indus Water Treaty between India and Pakistan see M. Kugelman, ‘Why the India-Pakistan War over Water Is So Dangerous’, Foreign Policy, 30 September 2016, https://​foreignpolicy​.com/​2016/​09/​30/​why​-the​ -india​-pakistan​-war​-over​-water​-is​-so​-dangerous​-indus​-waters​-treaty/​. 169 P. Ranjan, India and Bilateral Investment Treaties: Refusal, Acceptance, Backlash (OUP 2019), 287–95.

282

Treaties in parliaments and courts

an inquiry after the action had been taken.170 The Supreme Court has not yet decided on the matter of parliamentary competences in treaty withdrawal; however, it is highly unlikely that the Court would regard consent as a necessary precondition for withdrawal. Since parliament is not empowered to participate in the treaty-making process, it also does not need to consent to termination. Accordingly, scholars assume that parliament does not have the power to participate in the withdrawal process.171 In the US, the 1979 Goldwater v Carter decision is the most important precedent. The US Supreme Court did not reach the substantive issue on the necessity of Senate advice and consent to treaty withdrawal. Writing for the plurality of justices, Justice Powell dismissed the case ‘as not ripe for judicial review’.172 Powell took the view that the judiciary should only decide on the allocation of competences in foreign affairs after Congress had asserted its constitutional authority. Powell emphasized that ‘[t]he Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse’.173 While the Supreme Court plurality thus did not rule on the matter, the Court of Appeals embraced sole executive treaty withdrawal in Goldwater v Carter. The Court of Appeals highlighted that the text of the US constitution addresses treaty-making and could not be expanded to the ‘unmaking’ of treaties.174 The Court emphasized that since ‘the constitutional initiative in the treaty-making field is in the President, not Congress’, only an explicit anchoring of Senate participation in the constitutional text would trigger a withdrawal competence.175 Functional reasons and historical practice would confirm the sole treaty withdrawal power of the President.176 Similarly, the mainstream position enshrined in Restatement (Fourth) on Foreign Relations Law holds that ‘the President has the authority on behalf of the United States in […] withdrawing the United States from treaties’.177 The constitutional text, historical practice

170 Lok Sabha, Unstarred Question No. 1290, 25 July 2016, https://​dipp​.gov​.in/​sites/​ default/​files/​lu1290​.pdf. 171 K. Thakore, ‘National Treaty Law and Practice: India’, in D. Hollis, M. Blakeslee and B. Ederington (eds), National Treaty Law and Practice (Martinus Nijhoff 2005), 349 (368). 172 Goldwater v Carter, 444 US 996 (1979), 13 December 1979. 173 Ibid. 174 Goldwater v Carter, 617 F.2d 697 (704) (D.C. Cir. 1979). 175 Ibid, 705. 176 Ibid, 706–7. 177 Restatement (Fourth) of The Foreign Relations Law of the United States (2018), § 313; Restatement (Third) of The Foreign Relations Law of the United States (1986), § 339.

Towards shared treaty powers

283

and functional considerations would support sole executive treaty withdrawal power of the President.178 In Germany, the Bundestag is also not involved in treaty withdrawal. Generally, the allocation of the treaty-making power in the Basic Law follows a model of shared competences between the executive and legislature in the tradition of the German Empire and Weimar Republic.179 During the drafting process of the Grundgesetz, the content and scope of Article 59(2) of the Basic Law did not trigger major debates. Requiring approval legislation as the proper procedural form prevailed over the proposal of consent through a resolution.180 In its final version, the provision requires parliamentary approval for treaties that ‘regulate the political relations of the Federation’ and those that ‘relate to subjects of federal legislation’, with Bundestag and Bundesrat being the potential participants. The arguments of constitutional theory mentioned above soon informed the jurisprudence of German courts on the proper allocation of foreign affairs powers. In one of its first decisions, the Constitutional Court needed to address the issue of parliamentary participation. The case concerned the conclusion of the Petersberg Agreement of 1949, which granted occupied West Germany partial sovereignty in relation to the Western occupying powers of Great Britain, France and the United States. The Constitutional Court adopted a narrow reading of Article 59(2) of the Basic Law. The constitutional provision ‘deviates from the system of separation of powers’ since it empowers the legislature to ‘encroach’ upon the realm of the executive.181 By applying Article 59(2) of the Basic Law to arrangements with occupying powers, the ‘deviation from the principles of separation of powers would […] be impermissibly widened’.182 Accordingly, the provision would not be applicable to such arrangements.183 On the same day, the Court held that parliamentary consent was no precondition for the conclusion of an economic agreement between West Germany and France.184 The Court based its reasoning on a narrow interpretation of treaties ‘that regulate the political relations of the Federation’. Only a treaty that ‘substantially and directly affects the existence of the state, its territorial integrity, its independence and its position or prom-

Restatement (Fourth), § 313, Comments, b–d. Article 11(2) of the constitution of the German Empire, 1871; Article 45(3) Weimar constitution. 180 On this see B. Kempen, ‘Art. 59’, in H. von Mangoldt, F. Klein and C. Starck (eds), Grundgesetz, Kommentar, Band 2, Artikel 20-82 (Beck, 7th ed. 2018), para. 29. 181 Federal Constitutional Court, 2 BvE 3/51, 29 July 1952, para. 83. 182 Ibid, para. 83. 183 Ibid, para. 85. 184 Federal Constitutional Court, 2 BvE 2/51, 29 July 1952. 178 179

284

Treaties in parliaments and courts

inent weight within the community of states’ would fall into that category.185 The Court stressed once more that the provision would contain an ‘exceptional authority of the legislative branch in the field of the executive branch’.186 The Court thus clarified that in general the executive governs foreign affairs and that the exception of parliamentary participation in the treaty-making process needs to be construed narrowly. In later judgments, the Court built on this rule-exception argumentation to justify a narrow reading of parliamentary participation in foreign affairs. According to the Court, the Schmidt government’s 1979 consent to the stationing of US nuclear missiles in West Germany did not require parliamentary consent.187 Similarly, the Court did not regard parliamentary consent to be necessary when the Kohl government endorsed the broadening of the mandate of the West European Union (WEU) and the North Atlantic Treaty Organization (NATO) to cover UN peacekeeping missions in 1992.188 Likewise, the Court held that the Schröder government’s 1999 approval of the extension of NATO’s strategic concept to ‘Out of Area’ military missions did not necessitate prior parliamentary consent.189 According to the Constitutional Court, Bundestag approval granted to the stationing agreement between the United States and Germany, to the treaty on the WEU and to the NATO treaty in the 1950s contained the implicit recognition of a potential concretization and development of the respective treaties.190 Such evolutive interpretation of the treaties would be the task of the executive.191 An expansive understanding of Article 59(2) of the Basic Law would ‘reduce the Federal Government’s capability of acting in the field of foreign and security policy in an unjustified manner […] [and] would result in a separation of state power that would not do justice to the functions of the executive and the legislative power’.192 While these decisions do not concern treaty withdrawal, they are evidence that the Constitutional Court did not adopt a broad understanding of Article 59(2) of the Basic Law. In the same vein, the Constitutional Court assumes that treaty withdrawal does not require parliamentary consent. Even though the issue has not yet been at the centre of a court procedure, it played some

Ibid, para. 33. Ibid, para. 97. 187 Federal Constitutional Court, 2 BvE 13/83, 18 December 1984. 188 Federal Constitutional Court, 2 BvE 3/92, 12 July 1994. 189 Federal Constitutional Court, 2 BvE 6/99, 22 November 2001. 190 Federal Constitutional Court, 2 BvE 3/92, 12 July 1994, paras 280–9; Federal Constitutional Court, 2 BvE 6/99, 22 November 2001, paras 139–55. 191 Federal Constitutional Court, 2 BvE 6/99, 22 November 2001, para. 158. 192 Ibid, para. 158; on the narrow reading see also Federal Constitutional Court, 2 BvE 13/83, 18 December 1984, para. 136. 185 186

Towards shared treaty powers

285

role in the reasoning of the Constitutional Court. In the 1984 Pershing II decision, the Constitutional Court declared obiter dictum that the termination of an agreement, unlike its conclusion, does not require the consent of the legislative bodies within the meaning of Article 59(2) Sentence 1 of the Basic Law.193 Like the recognition of foreign states and the severance of diplomatic relations, treaty withdrawal would need to be understood as a unilateral declaration under international law that does not require parliamentary consent.194 The prevailing scholarly opinion would confirm the approach taken in German practice that no consent is required for unilateral declarations like the renunciations of treaties.195 The Court added that Article 45(3) of the Weimar constitution had also been interpreted to not require Reichstag approval in case of treaty withdrawal.196 In its 2015 Treaty override decision, the Court once more addressed the issue of the allocation of treaty withdrawal competences in passing.197 Faced with (seemingly) conflicting provisions of a double-taxation agreement and German tax law, the Constitutional Court held that the last-in-time rule applies.198 The Court emphasized that the constitution provides customary international law with precedence over statutory law (Article 25 Sentence 2 of the Basic Law) without containing a comparable provision on treaties.199 Accordingly, the lex posterior principle would be applicable and later domestic legislation would override an earlier treaty.200 As a core argument for its reasoning, the majority of judges emphasized that ‘[i]n accordance with the will of the people as expressed through elections, subsequent legislatures must have the power to revise […] legislative acts enacted by previous legislatures’.201 In the context of this contention, the Constitutional Court pointed to the role of parliament in treaty withdrawal. The Court took the view that ‘the legislature does not have the competence to denounce international treaties’.202 The Court emphasized that since the principle of democracy forbids the legislature from being permanently bound by legislative acts of its predecessors, and since the legislature simultaneously lacks the power to terminate international treaties containing provisions that it

195 196 197 198 199 200 201 202 193 194

Federal Constitutional Court, 2 BvE 13/83, 18 December 1984, para. 134. Ibid, para. 132. Ibid, para. 132. Ibid, para. 134. Federal Constitutional Court, 2 BvL 1/12, 15 December 2015. Ibid, para. 51. Ibid, paras 37–46. Ibid, para. 51. Ibid, headnote. Ibid, para. 55.

Treaties in parliaments and courts

286

no longer approves of, it must at least, within its area of competence, be able to enact legislation that diverges from what was agreed under international law.203

With explicit reference to the Pershing II case law,204 the Court held that parliament needs to be able to override earlier treaty law because of its lack of authority to terminate treaties. The reference to Pershing II in this context seems to show that the Court does not question sole executive treaty withdrawal. Despite some critical scholarly reactions to the ruling,205 the assumption that treaty withdrawal does not require parliamentary consent receives considerable support in the scholarly debate.206 In particular, it is argued that while the conclusion of a treaty may bind parliament and limit its freedom of choice, withdrawal may increase the space for parliamentary decisions.207 In the context of German reunification, the suggestion to explicitly stipulate parliamentary consent as a precondition for treaty withdrawal then did not receive the necessary two-thirds majority in the 1993 report of the Joint Constitutional Commission (Gemeinsame Verfassungskommission).208 While 25 members in the commission voted in favour of such an amendment to the Basic Law, 24 voted against and five abstained.209 Moreover, the political branches at times accept the reading of the Basic Law as containing sole executive treaty withdrawal competences. The executive withdrawal from double-taxation agreements with Brazil and Turkey in 2005 and 2011 without parliamentary consent was not challenged in German courts.210

Ibid, para. 55. Ibid, para. 55. 205 Payandeh, ‘Grenzen’, 1279; C. Henrich, ‘Das Bundesverfassungsgericht und die Verteidigung der Demokratie. Was kümmert mich die Zustimmung von gestern?’, NVwZ 2016, 668. 206 Schorkopf, Staatsrecht, 215; Streinz, ‘Art. 59’, para. 46; Butzer, Haas and Deutelmoser, ‘Art. 59’, para. 66; W. Heun, ‘Art. 59’, in H. Dreier (ed.), Grundgesetz-Kommentar (Mohr Siebeck, 3rd ed. 2015), para. 39; S.-U. Pieper, ‘Art. 59’, in V. Epping and C. Hillgruber (eds), Grundgesetz. Kommentar (Beck, 3rd ed. 2020), para. 31.2; K.-J. Partsch, ‘Parlament und Regierung im modernen Staat’, VVDStRL 16 (1958), 74 (98); Bayer, Aufhebung, 206–16. 207 Butzer and Haas and Deutelmoser, ‘Art. 59’, para. 66. 208 Bundestag/Bundesrat, Report of the Gemeinsame Verfassungskommission, Bericht, BT-Drucks. 12/6000, 5 November 1993, 113. 209 Ibid. 210 Hinny, Kaiser, Bazerkiewicz and Lang, ‘Kündigung’, 320. 203 204

Towards shared treaty powers

287

12.3.2 The ICC Withdrawal Case as a Potential Exemplar South Africa took a different path. The High Court of South Africa held in the 2017 ICC Withdrawal case that the Zuma administration may not notify the UN Secretary-General of South Africa’s intention to withdraw from the ICC without having received prior parliamentary consent.211 The High Court based its interpretation on Section 231(2) of the constitution according to which ‘[a]n international agreement binds the Republic only after it has been approved by resolution in both the National Assembly and the National Council of Provinces’. The Court suggested that notice of withdrawal would be ‘the equivalent of ratification, which requires prior parliamentary approval in terms of s 231 (2) [of the South African constitution]’.212 The Court emphasized that it would be paradoxical to require prior parliamentary approval before ratification but not before withdrawal. Section 231(2) of the constitution would provide for a ‘clear separation of powers between the national executive and the legislature’.213 The Court reasoned that ‘[i]f it is parliament which determines whether an international agreement binds the country, it is constitutionally untenable that the national executive can unilaterally terminate such an agreement’.214 Sole executive withdrawal would be an ‘anomaly’ that the Court was not willing to accept.215 According to the Court, ‘it is trite that where a constitutional or statutory provision confers a power to do something, that provision necessarily confers the power to undo it as well’.216 The lack of a corresponding provision in the constitution would not run counter to such an interpretation.217 The Court then ordered the government to revoke the notice of withdrawal until parliament had decided on the matter.218 The Court thus organized its reasoning around the actus contrarius argument. According to this legal maxim of argumentation, the organs who created a legal act possess the power to rescind it.219 In other words, the competence to enact a law also entails the competence to undo the law.220 This argument was based on the premise that the separation of powers idea is applicable to foreign affairs and that treaty-making and treaty withdrawal are no prerogative 211 High Court of South Africa (Gauteng Division, Pretoria), Case No: 83145/2016, 22 February 2017; on this case Chapter 6.3.3. 212 Ibid, para. 47. 213 Ibid, para. 51. 214 Ibid, para. 51. 215 Ibid, para. 52. 216 Ibid, para. 53. 217 Ibid, para. 53. 218 Ibid, para. 84. 219 A. Bleckmann, ‘Die actus-contrarius-Doktrin’, JuS 1988, 174 (174). 220 Ibid, 176.

288

Treaties in parliaments and courts

of the national executive. In this vein, the Court suggested that the requirement of parliamentary approval of treaty-making needs to apply also to treaty withdrawal. May this reasoning be transferred to Indian, US or German doctrine? In India, Article 246, entry 14 of the Union list and Article 73(1a) of the Indian constitution are understood not to provide for participation by the Lok Sabha or the Rajya Sabha in treaty-making. While entry 14 of the Union list stipulates that the national parliament has the power to legislate on ‘entering into treaties and agreements with foreign countries’, parliament has not yet activated its competences for participation in treaty-making. A contention of the Indian government from 1951 still holds true: ‘Parliament has not made any laws so far on the subject [of treaties] and, until it does so, the President’s power to enter into treaties (which is after all an executive act) remains unfettered by any “internal constitutional restrictions”.’221 As the 2018 Standard Operating Procedure for international treaties of the Ministry of External Affairs suggests, ‘[a]ccording to the Indian Constitutional scheme, making of international treaties is an executive act’ which ‘is not placed before the Parliament for discussion and approval’.222 Since parliament is not involved in treaty-making, the actus contrarius argument developed in the South African withdrawal case does not fit. At the very least, parliament would need to pass a law on entering and withdrawing from treaties as a necessary precondition for parliamentary participation in treaty withdrawal. The 1789 US constitution provides the President with the power ‘by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur’ (Article II, Section 2, Clause 2 of the US constitution). On the basis of the actus contrarius idea, one could argue that the two-thirds threshold applies not only to the ‘making’ but also to the ‘unmaking’ of treaties.223 This argument was advanced by the District Court in Goldwater v Carter before the decision was reversed by the Court of Appeals.224 The District Court emphasized that the ‘same separation of powers principles that dictate presidential independence and control within the executive estab221 Memorandum of 19 April 1951 of the Government of India, in United Nations, Law and Practice Concerning the Conclusion of Treaties (United Nations Legislative Series 1953), 63. 222 Ministry of External Affairs, Revision of Standard Operating Procedures (SOPs) with respect to MoUs/ Agreements with foreign countries, 2 April 2018, www​.mea​.gov​ .in/​images/​Revised​-SOPs​-with​-forwarding​-letter​-02042018​.pdf (last accessed March 2021). 223 For similar arguments Koh, ‘Questioning Section 313’, 67; Ackermann and Golove, ‘Iran Agreement’; in relation to congressional–executive agreements, Sia, ‘Congressional-Executive Agreements’, 797. 224 Goldwater v Carter, 481 F. Supp. 949 (D.D.C. 1979).

Towards shared treaty powers

289

lishment preclude the President from exerting an overriding influence in the sphere of constitutional powers that is shared with the legislative branch’.225 There are good reasons for this approach. Functional arguments for foreign affairs as an executive prerogative are (partly) based on false premises.226 Thus, one may wonder why the reasons for involving parliament in treaty-making should not apply to treaty withdrawal. However, one may question whether the High Court reasoning fits into the US constitutional scheme.227 The exceptionally high two-thirds majority threshold for Senate consent stems from a peculiar historical arrangement. During the constitutional drafting process, Southern states lobbied for the threshold to protect their monopoly on navigation rights on the Mississippi river. Northern states should not be able to transfer these rights to Spain in exchange for trade concessions.228 The threshold thus is not premised on functional arguments about the benefits of shared treaty powers which were at the heart of the High Court decision. Accordingly, one may question whether one should employ the unusually high threshold to treaty withdrawal. This would grant a Senate minority a ‘veto right’ on treaty termination. In any case, according to the Goldwater precedent, treaty withdrawal in foreign affairs concerns a political question which is not supposed to be solved by the judiciary.229 For a potential impact of the actus contrarius idea in judicial practice, US courts would need to overturn this precedent on the limits of the judicial power in foreign relations law. In contrast, the reasoning of the High Court may be seen as providing guidance for German constitutional interpretation. While one needs to be careful not to casually introduce arguments made in a different doctrinal context into German constitutional law,230 three reasons speak in favour of transferring the reasoning of the High Court decision into the German constitutional context. First, the design of Section 231 of the South African constitution is similar to the design of Article 59(2) of the Basic Law. Both provisions distinguish between more relevant treaties on the one hand and administrative agreements or agreements of technical, administrative and executive nature on the other. Both provisions require majority consent of the legislative bodies concerning the former type of treaty, whereas the latter may be addressed solely by the

Ibid, 960. See Chapter 12.1 and 12.2. 227 For scepticism see C. Bradley and L. Helfer, ‘Treaty Exiting the United States: Insights from the United Kingdom or South Africa’, AJIL Unbound 111 (2017), 428 (432). 228 Warren, ‘Mississippi’, 1278–86. 229 Goldwater v Carter, 444 US 996 (1979), 13 December 1979. 230 See Chapter 1. 225 226

290

Treaties in parliaments and courts

executive. These similarities presumably stem from the Basic Law’s role as a model in the South African constitution drafting process. In fact, some German constitutional lawyers provided their expertise to key South African parties involved in the constitutional drafting.231 Accordingly, it seems reasonable as a general matter to draw insights from the South African case. Second, and more concretely, the actus contrarius argument put forward in the South African judgment is also plausible in the German constitutional context. As a widely recognized maxim of legal interpretation, the actus contrarius argument may be applied not only in the South African but also in the German legal order.232 Because the German legislative chambers are vested with the competence to give consent to certain treaties, they also need to be regarded as having the power to provide consent to treaty withdrawal. As under the South African constitution, it seems unconvincing to differentiate between declarations concerning treaty-making and those concerning treaty withdrawal under the Basic Law. Both the conclusion of and the withdrawal from treaties falling under Article 59(2) Sentence 1 of the Basic Law constitute far-reaching foreign policy decisions calling for parliamentary involvement.233 For instance, it is implausible to require parliamentary consent for German accession to the NATO treaty or for ratification of the Paris Agreement, and not for the withdrawal from these treaties. Since treaty withdrawal may have significant legal and political effects, the legislative chambers should assume the political responsibility for the decision.234 Accordingly, the actus

231 On this see H. Botha, ‘Learning to Live with Plurality and Dissent: The Grundgesetz in South Africa’, JöR 58 (2010), 73; L. du Plessis, ‘German Verfassungsrecht under the Southern Cross’, in F. Hufen (ed.), Verfassungen zwischen Recht und Politik. Festschrift zum 70. Geburtstag von Hans-Peter Schneider (Nomos 2008), 524; more generally on the influence of the German constitutional thinking on South Africa, C. Rautenbach and L. Du Plessis, ‘In the Name of Comparative Constitutional Jurisprudence: The Consideration of German precedents by South African Constitutional Court Judges’, German Law Journal 14 (2013), 1539; F. Venter, ‘Why Should the South African Constitutional Court Consider German Sources? Comment on Du Plessis and Rautenbach’, German Law Journal 14 (2013), 1579. 232 Bleckmann, ‘Doktrin’, 174–6. 233 See also R. Wolfrum, ‘Kontrolle der auswärtigen Gewalt’, VVDStRL 56 (1997), 38 (50); M. Nettesheim, ‘Art. 59’, in G. Dürig, R. Herzog and R. Scholz (eds), Grundgesetz. Kommentar (Beck, 92. Ergänzungslieferung 2020), para. 140; J. Kokott, ‘Art. 59 Abs. 2 GG und einseitige völkerrechtliche Akte’, in K. Hailbronner, G. Ress and T. Stein (eds), Staat und Völkerrechtsordnung, Festschrift für Karl Doehring (Springer 1989), 503 (507); V. Röben, Außenverfassungsrecht. Eine Untersuchung zur auswärtigen Gewalt des offenen Staates (Mohr Siebeck 2007), 115–16. 234 P. Starski, ‘Art. 59’, in I. Münch and P. Kunig (eds), Grundgesetz. Kommentar, vol. 1 (Beck, 7th ed. 2021), para. 66; Kokott, ‘Akte’, 511; Wolfrum, ‘Kontrolle’, 50; Nettesheim, ‘Art. 59’, para. 140.

Towards shared treaty powers

291

contrarius argumentation should be employed when interpreting Article 59(2) Sentence 1 of the Basic Law. Third, the actus contrarius argument fits well into the German constitutional scheme.235 Article 59(2) Sentence 1 of the Basic Law stipulates that ‘[t]reaties […] shall require the consent or participation […] of the bodies responsible’. The provision, thus, does not distinguish between treaty-making and treaty withdrawal.236 The oppositive view accurately emphasizes that the conclusion of a treaty limits parliament’s freedom of decision, while its termination extends it.237 Therefore, withdrawal seems to affect the interests of parliament to a lesser degree than treaty conclusion. However, Article 59(2) Sentence 1 of the Basic Law is supposed to not only safeguard the legislature’s freedom of decision but also enable control of the government.238 The Bundestag should assume political responsibility for the treaty by exercising its power of control. In any case, the Constitutional Court’s narrow reading of Article 59(2) Sentence 1 of the Basic Law is under pressure. As early as the 1950s, Eberhard Menzel suggested a general conception of foreign relations power as a ‘combined power’ between parliament and the executive.239 In his sole dissent in the Pershing II decision, Justice Ernst Wolfgang Mahrenholz proposed to expand the reach of the parliamentary consent requirement under Article 59(2) Sentence 1 of the Basic Law to certain unilateral acts in order to properly control the executive.240 In relation to the expansion of the WEU and NATO’s mandate to cover participation in UN peacekeeping missions, four dissenting justices claimed that such an expansion of the mandate would

235 On the actus contrarius idea and withdrawal see F. Ehm, ‘Die Beteiligung des Bundestags bei der Kündigung völkerrechtlicher Verträge’, Bucerius Law Journal 2012, 45 (49–50). 236 J. Hettche, Die Beteiligung der Legislative bei Vorbehalten zu und Kündigung von völkerrechtlichen Verträgen (Mohr Siebeck 2018), 93–5; Kokott, ‘Akte’, 507; Ehm, ‘Beteiligung’, 48; Röben, Aussenverfassungsrecht, 115; Starski, ‘Art. 59’, para. 62. 237 Butzer, Haas and Deutelmoser, ‘Art. 59’, para. 66. 238 Wolfrum, ‘Kontrolle’, 45; Nettesheim, ‘Art. 59’, para. 94. 239 E. Menzel, ‘Die auswärtige Gewalt der Bundesrepublik’, VDStRL 12 (1954), 179 (194–200); see similar E. Friesenhahn, ‘Parlament und Regierung im modernen Staat’, VDStRL 16 (1958) 9 (38; 70); in relation to Article 59(2) of the Basic Law, R. Bernhardt, ‘Bundesverfassungsgericht und völkerrechtliche Verträge’, in C. Starck and M. Drath (eds), Bundesverfassungsgericht und Grundgesetz, Vol. 2 (Mohr 1976), 154 (179). 240 Federal Constitutional Court, 2 BvE 13/83, 18 December 1984, paras 235–7; already some years earlier, a majority of the Court had suggested that Article 59(2) Sentence 1 of the Basic Law is a special codification of the general reservation of statutory powers (Allgemeiner Gesetzesvorbehalt): Federal Constitutional Court, 2 BvL 8/77, 8 August 1978, para. 77.

292

Treaties in parliaments and courts

‘directly threaten’ the Bundestag’s rights under Article 59(2) of the Basic Law and thus violate the constitutional provision.241 Today, the voices in favour of a broad reading of Article 59(2) of the Basic Law have become even louder. In a time when decisions are increasingly transferred to the international level, scholars call for parliamentary participation in foreign affairs if ‘essential’ (wesentliche) questions are concerned.242 They suggest that the Wesentlichkeitstheorie, according to which the legislator is obliged ‘to make all essential decisions in fundamental normative areas’,243 should be applied to treaties.244 Even the Constitutional Court seems to gradually move towards recognizing the importance of parliamentary participation in foreign affairs, at least in relation to military deployment abroad.245 In its 1994 AWACS decision, the Constitutional Court read the requirement of ‘a constitutive parliamentary approval for any military deployment of armed forces’ into the Basic Law.246 In later decisions on NATO’s new strategic concept, the AWACS mission in Turkey and the evacuation of German citizens from Libya, the Court further clarified the scope of parliamentary participation in relation to military deployment as a key principle of German foreign relations law.247 Even though Article 59(2) Sentence 1 of the Basic Law was not used to substantiate the Court’s reasoning in relation to military deployment abroad,248 the decisions evidence the Constitutional Court’s growing receptiveness of ‘shared powers’ between the executive and legislature in foreign affairs. More generally,

Federal Constitutional Court, 2 BvE 3/92, 12 July 1994, paras 296–310. Möllers, Gewaltengliederung, 363–4; 370–3; 422–3; Wolfrum, ‘Kontrolle’, 41–2; for a strong role of parliament see also Herdegen, ‘Leistungsgrenzen’, 27–8; Paulus, ‘Völkerrechtsfreundlichkeit’, 89. 243 Federal Constitutional Court, 2 BvL 8/77, 8 August 1978, para. 77. 244 For the argument in relation to the withdrawal from treaties, Hettche, Kündigung, 238–44, 299–302. 245 On the developments, A. Peters, ‘Between Military Deployment and Democracy: Use of Force under the German Constitution’, in C. Bradley (ed.), Oxford Handbook of Comparative Foreign Relations Law (OUP 2019), 791; T. Kleinlein, ‘Kontinuität und Wandel in Grundlegung und Dogmatik des wehrverfassungsrechtlichen Parlamentsvorbehalts’, AöR 142 (2017), 43; G. Nolte, ‘Germany: Ensuring Political Legitimacy for the Use of Military Forces by Requiring Constitutional Accountability’, in C. Ku and H. Jacobson (eds), Democratic Accountability and the Use of Force in International Law (CUP 2003), 231. 246 Federal Constitutional Court, 2 BvE 3/92, 12 July 1994, para. 324. 247 Federal Constitutional Court, 2 BvE 6/99, 22 November 2001; ibid, 2 BvE 1/03, 7 May 2008; ibid, 2BvE 6/11, 23 September 2015. 248 Some observers convincingly argue that the parliamentary consent requirement for military missions is meant to compensate for the rather restrictive understanding of parliamentary participation under Article 59(2) Sentence 1 of the Basic Law: Paulus, ‘Völkerrechtsfreundlichkeit’, 79–80; Kleinlein, ‘Kontinuität’, 43 (47–53). 241 242

Towards shared treaty powers

293

the Constitutional Court speaks of an ‘effective right of participation of the Bundestag in matters of foreign policy’ when circumscribing the scope of parliamentary treaty-making and war powers.249 The Court also takes the view that through the approval law to a treaty the Bundestag assumes ‘the long-term assumption of responsibility for the political program laid down in the treaty and in the Consent Act’.250 Parliament may only live up to this responsibility for a treaty if it is also involved in its withdrawal.251 In this light, Article 59(2) Sentence 1 of the Basic Law needs to be understood as requiring parliamentary participation in treaty withdrawal.

249 Federal Constitutional Court, 2BvE 6/99, 22 November 2001, para. 123; ibid, 2 BvE 2/07, 3 July 2007, para. 40; ibid, 2 BvE 6/11, 23 September 2015, para. 68. 250 Federal Constitutional Court, 2 BvE 2/07, 3 July 2007, para. 42; see also ibid, 2 BvE 2/16, 17 September 2019, para. 33. 251 Starski, ‘Art. 59’, para. 67; similar Nettesheim, ‘Art. 59’, para. 139 fn 3.

13. Towards judicial engagement 13.1

THE CASE FOR RELUCTANCE

13.1.1 ‘One Voice’ and the Lack of Democratic Legitimacy Some scholars and courts take the view that domestic courts should not play a major role in foreign affairs and should use treaties only very carefully to interpret domestic law.1 Two reasons are often advanced for judicial self-restraint.2 First, it is suggested that it is necessary for a state to speak with ‘one voice’ in foreign affairs and that the executive is the most appropriate organ to do so.3 While this argument may be directed against parliamentary participation or against a treaty-making role of the subunits of federal states,4 it may also be invoked to circumscribe the role of domestic courts. The credibility of the national government would suffer were courts to revoke its position.5 The executive would possess the superior institutional capacity in foreign affairs because the judiciary would lack the expertise and standards to evaluate such matters.6 At least ‘the advice of ministries in rather detailed and

1 For the former position see Nzelibe, ‘Uniqueness’, 941; Baker v Carr, 369 US 186, 217 (1962), 26 March 1962; for the latter position see C. Bradley, ‘The Supreme Court as a Filter Between International Law and American Constitutionalism’, California Law Review 104 (2016), 1567. 2 The argument that the political branches should struggle for the prerogative to shape foreign policy is treated in the part of the case for reliance. For a theoretical argument against combining direct effect and supremacy see J. Jackson, ‘Status of Treaties in Domestic Systems: A Policy Analysis’, AJIL 86 (1992), 310 (337); Verdier and Versteeg, ‘International Law’, 525. 3 Baker v Carr, 369 US 186, 217 (1962), 26 March 1962; Nzelibe, ‘Uniqueness’, 976–99; on this see Abebe, ‘One Voice’, 233. 4 For the former argument, Blackstone, Commentaries, 245; for the latter argument, Abebe, ‘One Voice’, 233–6. 5 Wilkinson III, ‘Use’, 425. 6 Nzelibe, ‘Uniqueness’, 976–99; John Yoo regards the political branches to be ‘structurally superior to the judiciary in managing the nation’s foreign affairs’: Yoo, War and Peace, 229.

294

Towards judicial engagement

295

technical treaty matters might be better than that which the courts could work out themselves’.7 The idea that the executive is the proper sole ‘voice’ of a state in foreign relations has been introduced into various court decisions. In the US, the Supreme Court stressed in the 1962 Baker v Carr case that the resolution of foreign affairs ‘frequently turn[s] on standards that defy judicial application, or involve[s] the exercise of a discretion demonstrably committed to the executive or legislature, but many such questions uniquely demand single-voiced statement of the Government’s views’.8 In order to avoid ‘embarrassment from multifarious pronouncements by various departments on one question’,9 courts should refrain from deciding certain issues. These arguments inform some of the decisions on the proper interpretation of the ATS.10 While the Supreme Court majority in the 2013 Kiobel case warned against the ‘danger of unwarranted judicial interference in the conduct of foreign policy’,11 the majority in the 2018 Jesner v Arab case emphasized that ‘[t]he political branches, not the Judiciary, have the responsibility and the institutional capacity to weigh foreign-policy concerns’.12 In other jurisdictions, domestic courts do not rely on the argument as often, while not completely dismissing it. According to the German Constitutional Court, the government possesses ‘broad room for political discretion’ in foreign affairs.13 The government must be capable of introducing its legal viewpoint into the debate at the international level.14 It would be of ‘essential importance for the upholding of the interests of the Federal Republic of Germany that it appears at the international level with a single voice, upheld by the competent organs of external power’.15 In a 2020 decision, the Federal Administrative Court confirmed the existence of the German government’s political discretion on how to protect Yemeni citizens from potential US drone strikes conducted via a US airbase situated in Ramstein, Germany.16 According to the Court, the German government’s measures – asking for and receiving US assurances about the legality of the US actions on German territory – could not be regarded as ‘completely insufficient’ for protecting

7 J. Frowein, ‘Federal Republic of Germany’, in F. Jacobs and S. Roberts (eds), The Effect of Treaties in Domestic Law (Sweet & Maxwell 1987), 63 (85). 8 Baker v Carr, 369 US 186, 211, 26 March 1962. 9 Ibid. 10 On more cases, Chapter 11.3. 11 Kiobel v United States, 569 US 108, 109 (2013), 17 April 2013. 12 Jesner v Arab Bank, 138 S Ct 1386, 1403 (2018), 24 April 2018. 13 Federal Constitutional Court, 2 BvR 419/80, 16 December 1980, para. 36. 14 Ibid, para. 40. 15 Ibid, para. 40. 16 Federal Administrative Court, 6 C 7/19, 25 November 2020.

296

Treaties in parliaments and courts

potentially affected individuals.17 In South Africa, the idea of superior executive foreign policy expertise is likewise recognized. The High Court of South Africa put forward that certain foreign policy decisions – such as the decision to enter into treaties with foreign states – would fall ‘four square within the political arena’, making it ‘undesirable that the State should “speak with two voices”’.18 The Constitutional Court stresses in the Kaunda case that courts should ‘give particular weight to the government’s special responsibility for and particular expertise in foreign affairs’.19 The government possesses ‘wide discretion’ in ‘determining how best to deal with [matters of foreign affairs]’.20 Accordingly, in a case concerning diplomatic protection for South Africans imprisoned in Zimbabwe, the Court decided that the government had used its ‘evaluation and expertise’ properly on a sensitive issue of foreign policy.21 Second, the debate about the role of courts in foreign affairs is linked to the ‘counter-majoritarian difficulty’.22 As Alexander Bickel argued, courts tend to overrule decision-making by the legislature and executive even though the political branches enjoy higher democratic legitimation.23 Some regard this issue to be particularly salient when it comes to domestic courts’ use of international law as it would lack the democratic legitimacy of domestic rules.24

Ibid, paras 67–81. Kolbatschenko v King NO and Another, 2001 (4) SA 336 (C), 356–7, cited after Dugard and Coutsoudis, ‘Place’, 108. 19 Kaunda v the President of the Republic of South Africa, 2005 (4) SA 235 (CC), 4 August 2004, para. 144. 20 Ibid, para. 144. 21 Ibid; on this Dugard and Coutsoudis, ‘Place’, 105–16; Strydom, ‘Treaty-Making’, 262–9; in India, domestic courts seemed to have not employed the argument of superior executive foreign policy expertise as often, probably because foreign affairs are monopolized in the executive branch. 22 For a critical review of the debate see B. Friedman, ‘The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five’, Yale Law Journal 112 (2002), 153. 23 A. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (Yale University Press, 2nd ed. 1986), 17–25. 24 J. Rubenfeld, ‘The Two World Orders’, in G. Nolte (ed.), European and US Constitutionalism (CUP 2005), 280 (286–9); J. McGinnis and I. Somin, ‘Should International Law Be Part of Our Law?’ Stanford Law Review 59 (2006–7), 1175; J. McGinnis, ‘Foreign to Our Constitution’, Northwestern University Law Review 100 (2006), 303; more generally on the ‘democracy deficit’ in international law see H. Krieger, ‘Die Herrschaft der Fremden – Zur demokratietheoretischen Kritik des Völkerrechts’, Archiv des öffentlichen Rechts 133 (2008), 315 (320–3); E. Stein, ‘International Law and Democracy: No Love at First Sight’, AJIL 95 (2001), 489; A. von Bogdandy, ‘Globalization and Europe: How to Square Democracy, Globalization, and International Law’, EJIL 15 (2004) 885. 17 18

Towards judicial engagement

297

This argument has been raised in the debates in the four states. On the basis of an analysis of the reception of international law in various African countries, Richard Oppong suggests that domestic courts’ reliance on an unincorporated treaty or decisions of international bodies may be problematic since ‘the fact of unincorporation may be a manifestation of parliamentary resistance to the treaty’.25 He puts forward that ‘[b]y giving effect to [international law] absent a national implementing measure, the judiciary may be indirectly setting itself up against the will of an elected branch of government or upsetting the balance of power between the various organs of government’.26 In the Indian debate, some commentators suggest that the Supreme Court at times uses international law in an instrumental fashion when developing guidelines on certain policy issues, such as sexual harassment or transgender rights. Thereby, the court would ‘extend […] its own reach, and encroach […] on the domain of Parliament’.27 The Indian Supreme Court warned that a court should not ‘enforce its opinion’ of the best law on legislature rejecting intervention in the debate on the ratification of CAT.28 In the German discussion, the Constitutional Court puts strong emphasis on the principle of democracy when highlighting that treaties may not trump later parliamentary legislation.29 The critique has been loudest in the US context. Justice Scalia dismissed reliance on treaties, as well as foreign and international law more generally, as cherry-picking and judicial activism. In Sosa v Alvarez-Machain, Scalia raised the criticism that ‘unelected federal judges have been usurping th[e] lawmaking power [of Congress] by converting what they regard as norms of international law into American law’.30 In his dissent in Roper v Simmons, Justice Scalia, joined by Chief Justice Rehnquist and Justice Thomas, criticized the majority opinion’s use of Article 37 of the CRC and Article 6(5) of the ICCPR, pointing to US non-ratification of the former and reservation to the latter. Scalia suggested that the foreign sources would confirm the majority justices’ ‘own notion of how the world ought to be’, which they would impose

Oppong, ‘Recent Trends’, 317. Ibid, 317. 27 In relation to Vishaka, Rajamani, ‘Constitutional Schema’, 148; similar, Jain, ‘Democratizing Force’, 332. 28 Supreme Court, Dr Ashwini Kumar v Union of India Ministry of Home, Miscellaneous Application No. 2560 of 2018, 5 September 2019, para. 32. 29 Federal Constitutional Court, 2 BvL 1/12, 15 December 2015; on this see H. Aust, ‘The Democratic Challenge to Foreign Relations Law in Transatlantic Perspective’, in J. Bomhoff, D. Dyzenhaus and T. Poole (eds), The Double-Facing Constitution (CUP 2020), 345 (367–8). 30 Sosa v Alvarez-Machain, 542 US 692, 750 (2004), Concurring opinion Justice Scalia. 25 26

298

Treaties in parliaments and courts

on the US constitutional system.31 Building on this view, a Republican member of the House Committee on the Judiciary suggested in a 2011 hearing on ‘Judicial Reliance on Foreign Law’ that ‘[r]eliance on foreign law exacerbates judicial activism and empowers judges to impose their own policy preferences from the bench’.32 13.1.2 Questioning the Case for Reluctance The descriptive findings of this study do not allow us to fully affirm or dismiss the arguments in favour of a limited role of courts in foreign affairs. However, the court practice analysed above provides a lens for engaging with the debate. First, domestic courts’ intervention in foreign relations may indeed invite criticism by foreign states which the executive branch seeks to avoid. The ATS litigation before US courts triggered some sceptical responses abroad. Not only the Bush I administration, but also the Mbeki administration, expressed concerns about ATS claims against US companies for human rights abuses during apartheid. The South African government suggested that a judicial decision against the companies would deter foreign investment and hamper reconciliation in South Africa.33 In the Kiobel litigation against the British–Dutch Shell company, which the claimants regarded to be liable for human rights violations in Nigeria, the Obama administration attached an amicus curiae brief calling on the Court to dismiss the case.34 Likewise, the governments of the Netherlands and Great Britain pointed to the limits international law imposes on national civil jurisdiction in an amicus curiae brief.35 Similarly, the German 31 Roper v Simmons, 543 US 551, 628 (2005), 1 March 2005, Dissenting opinion Justice Scalia. 32 House Hearing, 112 Congress, Judicial Reliance on Foreign Law, 14 December 2011, www​.govinfo​.gov/​content/​pkg/​CHRG​-112hhrg71624/​html/​CHRG​ -112hhrg71624​.htm. 33 M. Geannette, ‘“Judicial Imperialism”? The South African Litigation, the Political Question Doctrine, and whether the Courts Should Refuse to Yield to Executive Deference in Alien Tort Claims Act Cases’, Southern California Law Review 82 (2009), 1001 (1013–15). See also J. Nzelibe, ‘Contesting Adjudication: The Partisan Divide over Alien Tort Statute Litigation’, Northwestern Journal of International Law and Business 33 (2012), 475. 34 J. Bellinger III, ‘Kiobel: Obama Administration Supports Shell, Argues ATS Should Not Apply to Aiding-and-Abetting Suits against Foreign Corporations, Leaves Open Possibility of Suits against U.S. Corporations’, 13 June 2012, www​.lawfareblog​ .com/​kiobel​-obama​-administration​-supports​-shell​-argues​-ats​-should​-not​-apply​-aiding​ -and​-abetting​-suits. 35 Brief of the Governments of the United Kingdom of Great Britain and Northern Ireland and the Kingdom of the Netherlands as Amici Curiae in Support of the Respondents, 3 February 2012, http://​sblog​.s3​.amazonaws​.com/​wp​-content/​uploads/​

Towards judicial engagement

299

government issued an amicus curiae brief in the proceedings suggesting that universal civil jurisdiction would inhibit Germany’s sovereignty.36 In the 2018 Jesner v Arab case, which concerned potential responsibility of the Arab Bank, headquartered in Jordan, for terrorist acts in Israel, the Trump administration urged the Supreme Court to remand the case because it might ‘undercut U.S. foreign policy interests’.37 Jordan also issued an amicus curiae brief claiming that ‘[i]t would be a direct affront to Jordan’s sovereignty for a U.S. court to subject a Jordanian national to suit based on alleged conduct halfway around the world that caused wholly foreign injuries’.38 While ATS litigation is not an example of the (direct) application of treaties but rather one of the use of treaties as evidence for customary rules,39 separation of powers concerns are often advanced in the judicial reasoning on the scope of ATS claims.40 Also, scholars relate ATS litigation to the ‘one voice’ problématique because the judicial decisions may interfere with the executive’s foreign policy.41 The Supreme Court’s narrow interpretation of the scope of the ATS Statute averted the emergence of inconsistent positions between

2012/​02/​4587212​_1​_UK​-Netherlands​-amicus​-brief​-ISO​-respondents​-filed​-2​-3​-12​-2​ .pdf; generally, however, there seems to be a trend to recognize extraterritorial corporate liability in Europe: C. Kaeb and D. Scheffer, ‘The Paradox of Kiobel in Europe’, AJIL 107 (2013), 852; R. McCorquodale, ‘Waving Not Drowning: Kiobel Outside the United States’, AJIL 107 (2013), 846. 36 Germany intervened after the Federation of German Industries (Bund der Deutschen Industrie) had encouraged the government to take action: Bundestag, Drucksache 17/9867, 5 June 2012, 3, http://​dip21​.bundestag​.de/​dip21/​btd/​17/​098/​ 1709867​.pdf; German members of parliament in opposition introduced an amicus curiae brief in the proceedings challenging the reasoning of the German government Supplemental Brief of Volker Beck and Christoph Strässer, Members of Parliament of the Federal Republic of Germany, Amici Curiae in Support of Petitioners, 11 June 2016, https://​harvardhumanrights​.files​.wordpress​.com/​2012/​06/​volker​-beck​-and​ -christoph​-strasser​-members​-of​-parliament​-of​-the​-federal​-republic​-of​-germany​.pdf. 37 Brief for The United States as Amici Curiae Supporting Neither Party at 25–30, Jesner v Arab Bank, 138 S. Ct. 1386 (2018) (No. 16–499), June 2017, 32; www​ .scotusblog​.com/​wp​-content/​uploads/​2017/​07/​16​-499​-ac​-US​-​.pdf. 38 Brief for the Hashemite Kingdom of Jordan as Amicus Curia Supporting Respondent, August 2017, www​.scotusblog​.com/​wp​-content/​uploads/​2017/​09/​16​-499​ -bsac​-Hashemite​-Kingdom​-of​-Jordan​.pdf. 39 Chapter 8.2. 40 See for instance Kiobel v United States, 569 US 108, 109 (2013), 17 April 2013; Jesner v Arab Bank, 138 S Ct 1386, 1403 (2018), 24 April 2018. 41 J. Rogers, ‘The Alien Tort Statute and How Individuals Violate International Law’, Vanderbilt Journal of Transnational Law 21 (1988), 47 (57–60); Abebe, ‘One Voice’, 245; 250.

300

Treaties in parliaments and courts

the executive and judicial branches.42 Because the Supreme Court allowed the US to speak with ‘one voice’, no deeper tensions with foreign states were created and the clear international legal responsibility of the US as a state was maintained. However, these experiences do not call for accepting the executive as the ‘sole voice’ in foreign affairs in general terms. Triggering diplomatic tensions does not rule out judicial decision-making per se. Even if judicial intervention caused inconsistent positions and diplomatic strife, the lack of a clear foreign policy position of a state and a judicial decision that is criticized abroad may be the price to pay for a certain procedure or claim touching upon foreign affairs being recognized under domestic law.43 Rather than prudential considerations about potential effects for diplomatic relations with other states, international law should be the standard for limiting the action by domestic courts. In relation to the ATS jurisprudence, the non-intervention principle and state sovereignty run up against overly broad universal civil jurisdiction. In general terms, the exercise of civil (as well as criminal) jurisdiction is based on the nexus of the case to the territory of the state in which the courts operate.44 Commentators disagree on whether an exception of universal civil jurisdiction for atrocity crimes such as torture is recognized under customary international law.45 While such an exception seems to be recognized for criminal law, it is

42 Kiobel v Royal Dutch Petroleum Co., 569 US 108 (2013), 17 April 2013; Jesner v Arab Bank, 138 S Ct 1386, 1407 (2018), 24 April 2018. 43 In relation to the ATS jurisprudence, it is controversial how the domestic statute should be understood; in favor of a broad reach, D. Sloss, ‘Kiobel and Extraterritoriality: A Rule Without a Rationale’, Maryland Journal of International Law 28 (2013), 241; R. Hamilton, ‘Jesner v Arab Bank’, AJIL 112 (2018), 720; Dodge, ‘Jesner’, 133; in favour of a limited reach, Kiobel v United States, 569 US 108, 109 (2013), 17 April 2013; Jesner v Arab Bank, 138 S Ct 1386, 1403 (2018), 24 April 2018. 44 Generally on universal (civil) jurisdiction, C. Ryngaert, Jurisdiction in International Law (OUP 2008), 100–27; C. Tomuschat, Human Rights: Between Idealism and Realism (OUP, 3rd ed. 2015), 399–430; B. Oxman, ‘Jurisdiction of States’, Max Planck Encyclopedia of Public International Law, November 2007. 45 In favour, C. Ryngaert, ‘Universal Tort Jurisdiction over Gross Human Rights Violations’, Netherlands Yearbook of International Law 38 (2007), 3; D. Francis and A. Roberts, ‘The Emerging Recognition of Universal Civil Jurisdiction’, AJIL 100 (2006), 142; Restatement (Third), § 404; J. von Bernstorff and M. Jacob and J. Dingfelder Stone, ‘The Alien Tort Statute before the US Supreme Court in the Kiobel Case: Does International Law Prohibit US Courts to Exercise Extraterritorial Civil Jurisdiction over Human Rights Abuses Committed Outside of the US?’ ZaöRV 72 (2012), 579; against, P. Mora, ‘The Alien Tort Statute after Kiobel: the Possibility for Unlawful Assertions of Universal Civil Jurisdiction still Remains’, ICLQ 63 (2014), 699; I. Wuerth, ‘Kiobel v Royal Dutch Petroleum Co.: The Supreme Court and the Alien Tort Statute’, AJIL 107 (2013), 601 (618).

Towards judicial engagement

301

less clear for civil law due to a lack of state practice.46 In any case, the rules of international law rather than separation of powers considerations about the proper role of domestic courts should govern the application of universal civil jurisdiction. Aside from the specifics of universal civil jurisdiction, a domestic court’s rejection of the government’s foreign policy may be laudable even if it reveals inconsistent positions. To name a rather uncontroversial example, in the ICC withdrawal case, the High Court of South Africa held that the Zuma administration may not withdraw from the Rome Statute without prior consent of the parliament in the decision-making process.47 The Court then ordered the administration to renounce its notice of withdrawal,48 which it did. Because the executive and judicial branches spoke with different voices, the international community received contradictory signals. Nonetheless, the ICC withdrawal case is largely regarded as an exemplar case for domestic judicial interference in foreign affairs.49 In case the executive acts outside of its foreign relations law powers, courts need to step in to protect the competences of the legislature. Thus, potential superior foreign policy expertise of the government should not keep domestic courts from intervening in cases concerning the allocation of competences in foreign affairs.50 However, this does not mean that the political branches do not possess any discretion in foreign affairs. The German Ramstein case and the South African Kaunda case carve out space in relation to a state’s duty to protect individuals abroad.51 In these instances, it seems reasonable to grant the executive some leeway on how to respond to a particular situation affecting foreign relations. Even though there may be cases in which only one action may fulfil a state’s obligation to protect the rights of individuals, often courts should permit the government latitude for reaching diplomatic solutions. Cases will turn on how

46 A. Su, ‘Rise and Fall of Universal Civil Jurisdiction’, Human Rights Quarterly 41 (2019), 849. 47 High Court of South Africa (Gauteng Division, Pretoria), Case No: 83145/2016, 22 February 2017. 48 Ibid, para. 84. 49 McLachlan, ‘Assault’, 31–3; F. Lange, ‘Art. 59 Abs. 2 S. 1 GG im Lichte von Brexit und IStGH-Austritt – Zur Parlamentarisierung der Kündigung völkerrechtlicher Verträge’, Archiv des öffentlichen Rechts 142 (2017), 442. 50 Woolaver, ‘Limitations’, 421–2; Nettesheim, ‘Art. 59’, para. 238; moreover, at least in this case, the reversal of South Africa’s position on the ICC does not seem to have inhibited South Africa’s standing on the international plane. 51 Federal Administrative Court, 6 C 7/19, 25 November 2020, paras 67–81; Kaunda v the President of the Republic of South Africa, 2005 (4) SA 235 (CC), 4 August 2004, para. 144.

302

Treaties in parliaments and courts

widely or narrowly domestic courts construe this discretion.52 Rather than generally refraining from challenging the executive’s foreign policy preferences, domestic courts need to assess on a case-by-case basis which measures are necessary to properly protect individuals without improperly curtailing policy space of the political branches. Second, counter-majoritarian courts’ reliance on international law to declare parliamentary legislation invalid may indeed be problematic. According to traditional understandings of the separation of powers, the respective directly elected national parliaments are vested with the competence to pass legislation.53 Even if judges base their decisions on treaties and are not freely ‘inventing’ new rules, the democratic legitimacy of treaties in the domestic order needs to be distinguished from usual legislative acts. The executive rather than parliament shapes a state’s approach towards a treaty as the executive represents a state during negotiations. Even if parliament consents before ratification, it is often confined to a ‘take it or leave it’ perspective limiting its potential influence on the final outcome.54 Against this background, one may question judicial reliance on treaties to influence and alter domestic law. One may respond that treaties receive at least some domestic legitimacy through the consent of the states that ratify them.55 In constitutional democracies the executive is also built on democratic credentials – be it a directly elected President as in the US or a more indirectly elected President or Prime Minister as in South Africa, India and Germany. Furthermore, at least in Germany, South Africa and the US, parliament needs to give prior consent to treaties and grant them domestic democratic legitimacy.56 While one should not expect that decision-making on the international level will follow the same processes as on the domestic level,57 the ongoing attempts to deepen parlia52 This might be seen differently; on the decision by the Higher Administrative Court of North Rhine – Westphalia, 4 A 1361/15, 19 March 2019, which was overturned by Federal Administrative Court, 6 C 7/19, 25 November 2020; also see the von Abo case (Supreme Court, Government of the Republic of South Africa and Other v Von Abo, 2011 (5) SA 262 (SCA), 4 April 2011) and its critique (Dugard and Coutsoudis, ‘Place’, 112). 53 C. Möllers, ‘Separation of Powers’, in R. Masterman and R. Schütze (eds), The Cambridge Companion to Comparative Constitutional Law (CUP 2019), 239–40. 54 For Germany see §§ 81(4), 82(2) GOBT; for South Africa see Department of Constitutional Development, Handbook, 45; for the US Restatement (Fourth), § 303, Reporters’ Notes 4. 55 Kumm argues that only when decisions of international bodies blurred the link between state consent and international obligations did the legitimacy of international law become an issue: M. Kumm, ‘The Legitimacy of International Law: A Constitutionalist Framework of Analysis’, EJIL 15 (2004), 907 (914). 56 On domestic forms of legitimation, Krieger, ‘Herrschaft’, 326–8, 342–3. 57 Kumm, ‘Legitimacy’, 907.

Towards judicial engagement

303

mentary competences in foreign affairs may mitigate concerns about treaties’ ‘democratic deficit’.58 Also, the criticism of courts’ reliance on treaties in constitutional interpretation loses its power where constitutions explicitly or implicitly embrace a strong role of treaties in the domestic order. The constituent assembly in South Africa decided that state organs ‘must consider international law’ when interpreting the Bill of Rights (Section 39(1)(b) of the constitution). In India, the state is obliged to ‘foster respect for international law and treaty obligations’ (Article 51(c) of the Indian constitution).59 In Germany, the constitution does not contain a similar provision but the international law-friendly orientation of the Basic Law makes arguments about a strong role of treaties in constitutional interpretation plausible.60 In the same vein, one could suggest that the US constitution with its ‘supremacy clause’ accepts treaties’ impact on constitutional interpretation, although this is not the view taken by the majority of US scholars.61 Nonetheless, some concerns remain. At times, courts use treaties as argumentative tools despite non-ratification or without parliamentary involvement in the treaty-making process. In the US, the Supreme Court majority referred to provisions of the CRC as a key argument for declaring the death penalty for juveniles void even though the US had not ratified the treaty.62 In India, the Supreme Court drew from CEDAW to reshape its domestic law on sexual harassment despite the Lok Sabha not having been involved in the domestic treaty-making process and not having incorporated the treaty into domestic law.63 If parliaments played no role in accepting the international legal bindingness of a treaty and if the content of the treaty does not reflect customary law, why should the treaty obligations shape the outcome of domestic courts’ decisions? Furthermore, at times, courts rely on decisions by international courts or bodies to substantiate their reasoning although these decisions are not directly binding on them under international law. In South Africa, the Constitutional Court partly based its holding on the inadmissibility of the death penalty on

Kadelbach, ‘Kontrolle’, 52–5. On the interpretation of Article 51 of the Indian constitution as a directive principle of state policy see Jain, ‘Democratizing Force’, 321; Rajamani, ‘Constitutional Schema’, 145–6. 60 Federal Constitutional Court, 2 BvR 1481/04, 14 October 2004, para. 33. 61 In the US, consistent interpretation with treaty obligations is limited to federal statutory law and does not apply to constitutional interpretation, Restatement (Fourth), § 309(1); Comment b. 62 Roper v Simmons, 543 US 551 (2005), 1 March 2005; Chapter 6.4. 63 Vishaka v State of Rajastan, AIR 1997 SC 3011, 13 August 1997. 58 59

304

Treaties in parliaments and courts

decisions by the UN Human Rights Committee, Inter-American and European Commission on Human Rights, IACtHR and ECtHR.64 In Germany, the Constitutional Court engaged with the CRPD Committee’s decisions when holding the state to be obligated to protect the life and health of a person under custodianship.65 In the US, the Supreme Court majority referred to ECtHR decisions as persuasive authority to strike down a Texan sodomy law.66 In India, the Supreme Court based its arguments in favour of the existence of a ‘right to privacy’ under the Indian constitution on a General Comment of the Human Rights Committee and decisions by courts such as the ECtHR and the IACtHR.67 If the decisions of regional courts are non-binding in jurisdictions outside of the respective regions and if the views of UN treaty bodies are non-binding under international law,68 why should domestic judges take these decisions into account? Again, one may argue that the international law-friendliness of the constitutional setting enables reliance on these decisions. Because the Indian constitution calls on the state to ‘foster respect for international law and treaty obligations’ (Article 51(c) of the Indian constitution), courts may cite a treaty provision to substantiate their reasoning even though parliament has not taken part in the treaty-making process. Moreover, by ratifying treaties and accepting competences of the treaty bodies, the respective states accept that treaty bodies may issue views interpreting the treaty provisions. Even if such views are non-binding, they have crucial weight for understanding the treaty provisions. As the ICJ stated in the Diallo case, the views of the Human Rights Committee possess ‘great weight’ because that Committee ‘was established specifically to supervise the application of [the ICCPR]’.69 Accordingly, domestic courts should grant this ‘great weight’ to these views in their jurisprudence. The onus

S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3, 6 June 1995, para. 35. Federal Constitutional Court, 1 BvL 8/15, 26 July 2016; for a later decision in which the Court deviated see Federal Constitutional Court, 2 BvC 62/14, 29 January 2019; on this Chapter 9.3. 66 Lawrence v Texas, 539 US 558 (2003), 26 June 2003. 67 Justice K.S. Puttaswamy v Union of India, Writ Petition (Civil) No. 494 of 2012, 26 September 2018. 68 However, the ICJ accords those views ‘great weight’ for the interpretation of UN human rights treaties: ICJ, Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), 30 November 2010, ICJ Reports 2010, 639 (664); on this, H. Keller and G. Ulfstein, ‘Conclusion’, in H. Keller and G. Ulfstein (eds), Human Rights Treaty Bodies (CUP 2011), 414 (417–18); Barkholdt and Reiners, ‘Pronouncements’, 16–17. 69 ICJ, Case Concerning Ahmadou Sadio Diallo (Republic of Guinea v Democratic Republic of the Congo), Judgment of 30 November 2010, ICJ Reports 2010, 639 (664). 64 65

Towards judicial engagement

305

is on the domestic court to demonstrate that the approach of a UN treaty body does not accord with the constitutional setting of the respective jurisdiction. Lastly, one may defend the practice of reliance on non-binding international decisions from other jurisdictions precisely by their non-authoritative status. The majority opinion in Roper v Simmons suggested that the death sentence for juvenile offenders violates the Eighth Amendment protection against cruel and unusual punishment, regarding the CRC and international practice as ‘confirmatory’ for its reasoning.70 In S v Makwanyane, Justice Chaskalson stressed that the Court would not be bound by decisions of foreign courts (including international courts) but only ‘derive assistance’ from it.71 Rather than being treated as binding law, the treaty and the international jurisprudence is regarded to provide orientation. If the international legal sources are used as persuasive rather than binding authority, the democratic critique is weakened.72 Looking to find inspiration in decisions of international bodies seems promising because the international decisions may be used to better reflect on one’s own legal system.73 This does not mean that courts may use international law as persuasive authority at free will. One needs to carefully assess whether arguments from decisions of international bodies fit into the respective constitutional order.74 Unpersuasive uses of persuasive authority are well possible. However, in light of international law-friendly constitutional provisions, against the background of the growing participation rights of parliaments in foreign affairs (with the exception of India) and treaties’ use as persuasive authority, the democratic challenge to treaties loses some of its argumentative thrust.

Roper v Simmons, 543 US 551 (2005), 1 March 2005; Chapter 6.4. S v Makwanyane and Another (CCT 3/94) [1995] ZACC 3, 6 June 1995, para. 39. 72 Highlighting the potential of international law as persuasive authority in domestic courts, K. Knop, ‘Here and There: International Law in Domestic Courts’, NYU Journal of International Law & Policy 32 (1999), 501. 73 For this argument in relation to comparative law see Kotzur, ‘Wert’, 356–60; 365; Schönberger, ‘Verfassungsvergleichung’, 7; Fredman, ‘Role of Comparativism’, 634–5; this view is shared by some judges form the respective jurisdictions: see on Justice Breyer, Dorsen, ‘Relevance’, 523; S. Baer, ‘Zum Potential der Rechtsvergleichung für den Konstitutionalismus’, JöR 63 (2015), 389 (398–9); Ackermann, ‘Comparativism’, 501; Balakrishnan, ‘Precedents’, 11–12. 74 Bell, ‘Public Law’, 235; Wahl, ‘Kulturvergleichung’, 163. 70 71

306

13.2

Treaties in parliaments and courts

THE CASE FOR RELIANCE

13.2.1 Enforcement and Limits to Executive Power Some scholars support a strong role of courts in foreign affairs and call on them to embrace international law. Two arguments stand out in the debate.75 First, scholars highlight the relevance of domestic courts as enforcers of the international legal obligations of a state.76 Since the late nineteenth century, legal scholars have pointed to the potential of domestic courts as loyal supporters of the international legal system. In 1893, Thomas Alfred Walker suggested that under certain circumstances domestic courts might act as ‘the trusted mouthpieces of International Law as local divisions of the great High Court of Nations’.77 Building on this idea, Hersch Lauterpacht claimed during the inter-war period that domestic courts act ‘as organs of the international legal community’ when adjudicating on questions of international law.78 Domestic courts should do all in their power to judge impartially on foreign affairs and acquire proper knowledge of international law.79 Similarly, George Scelle emphasized in his theory on the dédoublement fonctionnel that national courts – besides their role as state organs – might act as ‘agents of the international legal order’ in the service of the international rule of law.80 These views have frequently been taken up. International legal scholars emphasize that domestic courts should act as ‘agents of the international community’ by protecting the international rule of law.81 National judges would 75 There are also other arguments at play. In the wake of rising populism, some scholars suggested that domestic courts should rely on the substantive content of international law to limit regressive actions of populist leaders: T. Hostovsky Brandes, ‘International Law in Domestic Courts in an Era of Populism’, ICON 17 (2019), 576; Koh, Trump. 76 On the internationalist position see C. McLachlan, ‘Five Conceptions of the Function of Foreign Relations Law’, in C. Bradley (ed.), The Oxford Handbook of Comparative Foreign Relations Law (OUP 2019), 21 (24). 77 T.A. Walker, The Science of International Law (Clay and Sons 1893), 49. 78 H. Lauterpacht, ‘Decisions of Municipal Courts as a Source of International Law’, British Yearbook of International Law 10 (1929), 65 (92). 79 Ibid, 93–4; for domestic courts as ‘faithful trustees’ of the rights of man see H. Lauterpacht, ‘The Proposed European Court of Human Rights’, Transactions of the Grotius Society 35 (1949), 25 (33); on this E. Bjorge, Domestic Application of the ECHR: Courts as Faithful Trustees (OUP 2015). 80 Scelle, ‘Règles’, 358–9; on this A. Cassese, ‘Remarks on Scelle’s Theory of “Role Splitting” (dédoublement fonctionnel) in International Law’, EJIL 1 (1990) 210. 81 Nollkaemper, National Courts, 8; on this R. Falk, The Role of Domestic Courts in the International Legal Order (Syracuse University Press 1964); see also R. Lillich, ‘The Proper Role of Domestic Courts in the International Legal Order’, Virginia

Towards judicial engagement

307

face ‘mixed loyalties’ as part of the domestic and international legal system and take on an ‘international judicial function’ when they ‘apply international law qua law in a serious and credible manner’.82 Accordingly, decisions of national courts should be recognized as ‘building blocks’ of international law.83 Faced with the reluctance of states to submit themselves to judicial review by international courts, domestic courts are at times regarded as the more promising institutions guaranteeing adherence to international law.84 To some extent, observers hope that domestic judges may contribute to the impartial enforcement of international law, which – due to the lack of obligatory jurisdiction of international courts and an international enforcement structure – has been called the ‘Achilles’ heel of international law’.85 Second, supporters of a strong role of domestic courts in foreign affairs highlight that courts need to protect the legislature against executive monopolization of power in foreign relations.86 According to this view, which is particularly prominent in the US, courts need to limit and control the executive’s wide powers in foreign relations as the lack of judicial action is regarded to contribute to the emergence of an ‘imperial presidency’.87 It has been suggested that ‘both Congress and the courts [should be revitalized] as institutional counterweights to the President […] [to] fully redress the constitutional imbalance in national security decision-making.’88 Others point to the necessity to ‘restore the global judiciary to its proper place in foreign affairs’, which consists in not shying away from overseeing executive action concerning foreign policy.89 The ‘normalization of foreign affairs law’ according to

Journal of Inernational Law 11 (1970), 9 (48–50); C. Schreuer, ‘The Implementation of International Judicial Decisions by Domestic Courts’, ICLQ 24 (1975), 153 (159–61); d’Aspremont, ‘Integration’, 144; A. Tzanakopoulos and C. Tams, ‘Introduction: Domestic Courts as Agents of Development of International Law’, Leiden Journal of International Law 26 (2013), 531; pointing to five different rationales, R. Bahdi, ‘Globalization of Judgment: Transjudicialism and the Five Faces of International Law in Domestic Courts’, George Washington Intenrational Law Review 34 (2002), 555. 82 Shany, ‘Mixed Loyalties’, 36; 39. 83 Ibid, 41. 84 Nollkaemper, National Courts, 8–9. 85 Roberts, ‘Comparative International Law?’ 58. 86 M. Paus, Hüter, 391–419; J. Ely, ‘Suppose Congress Wanted a War Powers Act that Worked’, Columbia Law Review 88 (1988), 1379 (1406–16); M. Flaherty, Restoring the Global Judiciary: Why the Supreme Court Should Rule in Foreign Affairs (Princeton University Press 2019), 167–90. 87 A. Schlesinger, The Imperial Presidency (Mariner, 43rd ed. 2004; 1st ed. 1973), x. 88 H. Koh, ‘Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair’, Yale Law Journal 97 (1988), 1255 (1258). 89 Flaherty, Global Judiciary, 252.

308

Treaties in parliaments and courts

which courts are not hesitant to adjudicate in cases concerning foreign affairs should guide the thinking about US foreign affairs law as a new paradigm.90 This argument responds to the view that the political branches are capable to self-preserve their competences in foreign affairs without the involvement of courts.91 While this argument has not found traction in the debates in Germany, India and South Africa, it is imperative in the US constitutional debate. As Edwin Corwin proposed in the 1940s, the US constitution poses an ‘invitation’ for the President and Congress to ‘struggle for the privilege of directing American foreign policy’.92 Because the constitution would vest the President as well as the Senate and Congress with certain powers concerning foreign affairs, the question of ‘which of these organs shall have the decisive and final voice in determining the course of the American nation is left for events to resolve’.93 Accordingly, courts should not intervene in matters of foreign policy.94 The Supreme Court based some of its key foreign affairs decisions on this idea. Even in the Youngstown decision, often praised as a hallmark for judicial oversight of presidential action relating to foreign affairs,95 Justice Jackson emphasized that the ‘power to legislate […] belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers’.96 Moreover, the argument determined the outcome of the Goldwater v Carter case on parliamentary participation in treaty withdrawal. Writing for the plurality, Justice Powell suggested that the judiciary should intervene only where Congress asserts its constitutional authority by taking a position on the issue of withdrawal.97 Powell emphasized that ‘[t]he Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse’.98 He also stressed that ‘[i]f the Congress chooses not to confront the President, it is not our task to do so’.99 The concurring opinion of Justice Rehnquist, joined by Chief Justice Steward and Justice Stevens, emphasized that the executive and legislature as ‘coequal branches’ would be capable ‘to protect and assert its interests’.100

Sitaraman and Wuerth, ‘Normalization’, 1897 (1935–79). Corwin, President, 208; on this in detail see Paus, Hüter, 93–6; 160–305. 92 Corwin, President, 208. 93 Ibid, 208. 94 Ibid, 213–15. 95 Flaherty, Global Judiciary, 1–3. 96 Youngstown Sheet & Tube Co. v Sawyer, 343 US 579, 654 (1952), 2 June 1952. 97 Goldwater v Carter 444 US 996 (1979), 13 December 1979. 98 Ibid, 996. 99 Ibid, 998. 100 Ibid, 1004. 90 91

Towards judicial engagement

309

13.2.2 The Advantages of Judicial Engagement The jurisprudence analysed in this study can be used to engage with the arguments about domestic courts as enforcers of international law and as a counterforce against executive aggrandizement. First, it should be emphasized that in most cases, domestic courts in the four countries do not understand themselves as ‘agents of the international community’ even if they decide on matters of foreign affairs.101 In general, they use treaties to decide domestic cases. The German Constitutional Court cites provisions of the ICESCR and CRC to substantiate its reasoning when declaring the domestic provisions on social protection of asylum seekers to violate the Basic Law.102 The Indian Supreme Court refers to the ICCPR and views of the Human Rights Committee when striking down the criminalization of homosexual conduct in Section 377 of the Indian Penal Code.103 The South African Constitutional Court declares a law aimed at bringing the South African anti-corruption agency under closer executive control unconstitutional, with reference to anti-corruption treaties.104 The US Supreme Court majority holds that sentencing a juvenile offender to life in prison without parole for a non-homicide crime violates the Eighth Amendment pointing to the prohibition of the imposition of life imprisonment for underaged persons in the CRC.105 In all these decisions, the courts decided on pertinent issues of domestic law rather than being concerned about compliance with the international legal rules or strengthening the international legal system. As has been suggested in relation to the Indian jurisprudence: international law has served as a useful tool for the Indian Supreme Court in fulfilling aims that have little to do with the court’s purported status as an organ of the international community. On the contrary, the Supreme Court has appropriated international legal norms to pursue primarily domestic goals and to champion the rights of individuals and groups that have been unrepresented or underrepresented in

101 C. McCrudden, ‘Why Do National Court Judges Refer to Human Rights Treaties? A Comparative International Law Analysis of CEDAW’, AJIL 109 (2015), 534 (535–7); Benvenisti, ‘Strategic’, 244. E. Benvenisti and G.W. Downs, ‘National Courts, Domestic Democracy, and the Evolution of International Law’, EJIL 20 (2009), 59 (61); on the debate see L. Conant, ‘Whose Agents? The Interpretation of International Law in National Courts’, in J. Dunoff and M. Pollack (eds), Interdisciplinary Perspectives on International Law and International Relations: The State of the Art (CUP 2013), 394. 102 Federal Constitutional Court, 1 BvL 10/10, 18 July 2012. 103 Navtej Singh Johar & Ors v Union of India thr. Secretary Ministry of Law and Justice, Writ Petition (Criminal) No. 76 of 2016, 6 September 2018. 104 Glenister v The President of the Republic of South Africa and Others [2011] ZACC 6, 2011 (3) SA 347 (CC). 105 Graham v Florida, 560 US 48 (2010), 17 May 2010.

Treaties in parliaments and courts

310

Indian democracy in a bid to secure popular support and bolster its position vis-à-vis other state organs.106

While the Indian experience should not be generalized, a domestic orientation of national judges is the rule rather than the exception. However, such exceptions do exist. While the South African decisions on the ICC withdrawal and the SADC Tribunal also concerned issues of domestic law, they had the effect of directly strengthening international institutions. Responding to the ICC withdrawal of the Zuma administration, the High Court of South Africa declared South Africa’s notification to leave the ICC without parliamentary consent to be void.107 In the SADC Tribunal case, the Constitutional Court ruled that limiting the SADC Tribunal’s jurisdiction to state-to-state complaints violates the access to court granted under the South African constitution.108 The Court ordered the South African government to revoke its signature of the novel statute curtailing jurisdiction.109 By supporting international and regional institutions, the courts contribute to strengthening the system of international law.110 While the cases concerned the domestic allocation of foreign affairs competences and the access to court provision of the Bill of Rights, the courts also acted as ‘agents of the international community’. This is supported by the accentuation of international law’s value in the jurisprudence. In the SADC Tribunal case, the majority opinion referred to ‘[t]he centrality of international law in shaping our democracy’, stressed international law’s ‘well-deserved prominence in the architecture of our constitutional order’ and pointed to ‘the critical role that we need international law to play in the development and enrichment of our constitutional jurisprudence’.111 In the context of the non-arrest of Al-Bashir, the Supreme Court of Appeal emphasized that ‘[i]t is a matter of pride to citizens of this country that South Africa was the first African state to sign the Rome Statute’ and praised South Africa’s role as a ‘vanguard’ of the prosecution of atrocity crimes.112 Because Jain, ‘Democratizing Force’, 320. High Court of South Africa (Gauteng Division, Pretoria), Case No: 83145/2016, 22 February 2017. 108 Law Society of South Africa and Others v President of the Republic of South Africa and Others [2018] ZACC 51, 11 December 2018. 109 Ibid. 110 On this Chapter 6.3.3. 111 Law Society of South Africa and Others v President of the Republic of South Africa and Others [2018] ZACC 51, 11 December 2018, para. 4. 112 Supreme Court of Appeal, Minister of Justice and Constitutional Development v The Southern African Litigation Centre (867/15) [2016] ZASCA 17, 15 March 2016, paras 1; 103. 106 107

Towards judicial engagement

311

of a positive view of international law, South African courts became guardians of the treaties. Moreover, even the decisions with a strong focus on domestic matters have some effects on international law. By citing the ICESCR and CRC in the context of the social protections of asylum seekers, the German Constitutional Court signals that these treaties have to be taken seriously.113 By treating the ICCPR and views of the Human Rights Committee as arguments for the decriminalization of homosexual conduct, the Indian Supreme Court endorses these international legal rules and decisions as relevant persuasive authority.114 Using anti-corruption treaties to construe a standard for independence for domestic anti-corruption units, the South African Constitutional Court defers to the wisdom of theses treaties.115 By treating the CRC as interpretative guidance for the Eighth Amendment, the US Supreme Court highlights the treaty’s force as an internationally accepted standard on children’s rights.116 Accordingly, domestic courts at least indirectly strengthen the international rule of law. While it seems imperative that domestic courts treat international law carefully in these cases,117 in general, domestic courts’ reliance on international law in such cases should be welcomed. Domestic courts’ uses of treaties may strengthen international institutions and the application of international law. Domestic courts’ application of international law in a diligent manner helps to enforce international norms.118 By taking treaty commitments seriously, domestic courts contribute to bolstering the ‘international rule of law’ not so much as a remedy for the lack of obligatory jurisdiction of international courts but rather as an addition. This does not mean that domestic courts should generally use treaties to discard domestic law. If international law clearly violates constitutional protections of the individual, the substantive international obligations should be disregarded.119 This is also the dominating view in all four jurisdictions. In India, the Supreme Court only allows international conventions ‘not inconsist-

Federal Constitutional Court, 1 BvL 10/10, 18 July 2012. Navtej Singh Johar & Ors v Union of India thr. Secretary Ministry of Law and Justice, Writ Petition (Criminal) No. 76 of 2016, 6 September 2018. 115 Glenister v The President of the Republic of South Africa and Others [2011] ZACC 6, 2011 (3) SA 347 (CC). 116 Graham v Florida, 560 US 48 (2010), 17 May 2010. 117 For critiques of the SADC Tribunal decision see Tladi, ‘Mandela’; Koagne Zouapet and Plagis, ‘Internationalist Reading’, 378. 118 Shany, ‘Mixed Loyalities’, 41; Nollkaemper, National Courts, 8–9. 119 Kumm, ‘Constitutionalist Model’, 907. 113 114

312

Treaties in parliaments and courts

ent with the fundamental rights’ to affect constitutional interpretation.120 The German Constitutional Court maintains that the legislature may not comply with treaties ‘provided this is the only way in which a violation of fundamental principles of the constitution can be averted’.121 In the US, Restatement (Fourth) stresses that ‘[a] treaty provision will not be given effect as law in the United States to the extent that giving it this effect would violate any individual constitutional rights’.122 According to Sections 231(4) and 232 of the South African constitution, the embrace of treaties and customary law in the domestic order is contingent on their accordance with the South African constitution. Aside from the rare cases of violations of constitutional rights through international law, domestic courts should not shy away from seriously enforcing international legal treaty commitments in their domestic orders. Moreover, domestic courts should carefully analyse the content of international law when applying international legal obligations in the domestic setting. It has been suggested that the Indian jurisprudence at times does not properly distinguish between binding and non-binding international law. Some commentators put forward that ‘the courts have often glided over distinctions between different sources of international law, ignored hierarchies, where they exist, between norms of international law, paid little heed to the legal status or gravitas of legal norms, and created, thereby, a body of jurisprudence in relation to international law that is as assertive and far-reaching as it is puzzling’.123 For instance, in National Legal Service Authorities v India (2014), the Indian Supreme Court decided that transgender people had to be recognized by Indian law.124 The decisions strongly drew from the Yogyakarta Principles on Human Rights and Sexual Orientation, which had been formulated by a group of human rights experts.125 The Court suggested that ‘[d]ue to the absence of suitable legislation protecting the rights of the members of the transgender community’, there would exist a ‘necessity to follow the International Conventions to which India is a party and to give due respect to other non-binding International Conventions and principles’.126 The Court concluded that the treaties, including the Yogyakarta Principles, ‘must be recognized and followed’ because

120 Jolly George Verghese & Anr v The Bank of Cochin on 4 February 1980; 1980 AIR 470, 1980 SCR (2) 913, para. 7. 121 Federal Constitutional Court, 2 BvR 1481/04, 14 October 2004, para. 35. 122 Restatement (Fourth), § 307; see also Reid v Covert, 354 US 1, 16 (1957). 123 See Rajamani, ‘Constitutional Schema’, 144; similar Jain, ‘Democratizing Force’, 327. 124 National Legal Service Authorities v India (2014), WP (Civil) No 604 of 2013, 15 April 2014. 125 Ibid, para. 22. 126 Ibid, para. 49.

Towards judicial engagement

313

they are consistent with Indian constitutional law.127 Even though the decision indicated that there exists a distinction between binding and non-binding rules of international law, it did not spell out the role of the Yogyakarta Principles in the ruling. As ‘soft law’, these rules have persuasive rather than binding authority which should have been flagged more clearly. Emphasizing this distinction also seems important as non-binding standards possess less legitimacy than the international treaty obligations to which India has consented.128 While it is worthwhile to consider whether courts in some jurisdictions should go further than the traditional judicial functions ‘[i]f the political branches do not carry out these task [of changing the status quo] or carry them out inadequately’,129 the use of treaties and international instruments should be in accordance with international law’s doctrine of sources. Second, judicial non-intervention in the allocation of competences between the political branches seems to strengthen the executive branch. Edwin Corwin’s assumption that both political branches will take up the invitation to struggle over foreign affairs is not likely to materialize.130 In parliamentary systems,131 the parliamentary majority generally supports the approach of the government.132 Often, the majority in parliament will not even defend its foreign relations law powers. In South Africa, the ANC-dominated parliament did not protest the Zuma administration’s notification of withdrawal from the Rome Statute without parliamentary participation. Even though the argument about parliamentary participation of treaty withdrawal seemed not far-fetched,133 the parliamentary majority was willing to acquiesce in executive sole treaty withdrawal. While the lack of challenges by the parliamentary majority may well change with a new political majority, in a parliamentary democracy such challenges are rather unlikely. In such cases, opposition parties may protect the parliamentary powers but only with the help of domestic courts. In relation to the withdrawal from the Rome Statute, parliament secured its treaty withdrawal competences because the DA in opposition went to court on behalf of the parliament. The High Court Ibid, para. 53. On this argument, Kanetake, ‘Soft Law’, 347–8. 129 D. Bilchitz and D. Landau, ‘The Evolution of the Separation of Powers in the Global South and in the Global North’, in ibid (eds), The Evolution of the Separation of Powers: Between the Global North and the Global South (Edward Elgar Publishing 2018), 9. 130 Corwin, President, 208. 131 Corwin was, of course, only referring to the US system. 132 On this Chapter 3.1. 133 Scholars had made this argument for some time: N. Botha, ‘National Treaty Law and Practice: South Africa’, in D. Hollis, M. Blakeslee and B. Ederington (eds), National Treaty Law and Practice (Martinus Nijhoff 2005), 581 (596). 127 128

314

Treaties in parliaments and courts

of South Africa then endorsed the DA’s claim that prior parliamentary consent is a constitutionally required precondition for treaty withdrawal.134 Without the opposition’s intervention, it seems likely that the executive withdrawal notification would have survived. Similarly, in Germany, minority parties in opposition brought most cases concerning the allocation of powers between the executive and legislature in relation to the deployment of military missions abroad.135 By reading the requirement of a constitutive parliamentary approval for any military deployment of armed forces into the Basic Law,136 the Court secured the rights of parliament in this issue area. As in parliamentary systems, in the US presidential system the legislative branch often has no interest in struggling to maintain its foreign affairs powers.137 In particular when there is a unified government with a congressional majority for the President, the congressional majority tends to follow its president.138 But even in times of divided government or when the Senate possesses a blocking minority, attempts by Congress and the Senate to maintain their powers in foreign affairs have not been very successful.139 In general, it seems that without court intervention the executive is able to maintain or expand its foreign affairs powers. Because US procedural law does not contain a proceeding on disputes between different constitutional organs and because US courts dismiss cases concerning the allocation of powers in relation to treaty withdrawal as non-justiciable,140 the executive prevails with its view on sole executive treaty withdrawal. Because US courts reject taking a view on whether certain treaties should be treated as Article II rather than congressional–executive agreements,141 the position of the executive asserts itself. In contrast to the assumptions advanced in the US jurisprudence, the political branches are not capable of (or not interested in) self-preserving their

134 High Court of South Africa (Gauteng Division, Pretoria), Democratic Alliance v Minister of International Relations et al., Case No. 83145/2016, 22 February 2017. 135 The 1994 AWACs case had been brought by the SPD in opposition. In relation to some parts of the claim, however, the FDP as the coalition partner of the governing CDU/CSU also suggested that the parliamentary competences were violated. More recent cases were initiated by members of opposition parties. 136 Federal Constitutional Court, 2 BvE 3/92, 12 July 1994, para. 324. 137 Paus, Hüter, 318; on the limited exercise of congressional control J. Goldgeier and E. Saunders, ‘The Unconstrained Presidency: Checks and Balances Eroded Long before Trump’, Foreign Affairs 97 (2018), 144. 138 Paus, Hüter, 320–1. 139 Ibid, 321. 140 Goldwater v Carter, 444 US 996 (1979), 13 December 1979; on this case and the political question doctrine see Chapter 11.3. 141 US Court of Appeals, 11th Circuit, Made in the USA Foundation v United States, 242 F. 3d 1300, 27 February 2001.

Towards judicial engagement

315

competences in foreign affairs. As Justice Brennan stressed in his dissent in Goldwater, ‘[t]he issue of decisionmaking authority must be resolved as a matter of constitutional law, not political discretion’.142 This does not mean that courts will always rule in favour of the competences of parliament. Even though Indian courts do not refrain from deciding on the allocation of competences in foreign affairs, the Supreme Court emphasizes that the executive alone is empowered to enter into binding obligations for India.143 In P.B. Samant v Union of India, the Bombay High Court even held that the government may conclude treaties without involvement of the state legislature even if the treaty concerned matters on the State list.144 Similarly, the German Constitutional Court often decided to construe the executive power in foreign affairs rather broadly.145 US precedent also indicates that the Supreme Court regards the executive as the key organ to determine foreign policy.146 Nonetheless, as the ICC withdrawal case demonstrates, court intervention may heighten the chances of parliament protecting its competences more assertively than without intervention. In contrast, non-intervention will likely not stop the executive’s aggrandizement of powers.

13.3

TAKING DIRECT APPLICABILITY AND CONSISTENT INTERPRETATION SERIOUSLY

13.3.1 Accepting the Notion of Self-Executing Treaty Provisions The descriptive findings of this study allow us to assess the question of how domestic courts should engage with the status of treaties in the respective domestic systems. Should certain treaty provisions be regarded as directly applicable or not? Should they be able to ‘override’ domestic legislation? Once more, it is important to note that a one-size-fits-all approach for all four jurisdictions is not possible. The same doctrinal results in the four jurisdictions are not necessarily to be expected. This is because any analysis needs to start from the divergent domestic rules on the status of treaties. In line with Goldwater v Carter, 444 US 1007 (1979), 13 December 1979. Union of India and Anr v Azadi Bachao Andolan and Anr, Appeal (civil) 8161–8162 of 2003, 7 October 2003; see also Maganbhai Ishwarbhai Patel v Union of India, AIR 1969 SC 783, 9 January 1969; High Court of Delhi, Shiva Kant Jha v Union of India & Ors, WP (C) No. 1357 of 2007, 11 November 2009. 144 High Court of Bombay, P.B. Samant v Union of India, AIR 1994 Bom 323, 5 April 1994. 145 Federal Constitutional Court, 2 BvE 3/51, 29 July 1952; 2 BvE 2/51, 29 July 1952. 146 For the most extreme case U.S. v Curtiss-Wright Export Corp., 299 US 304 (319), 21 December 1936. 142 143

316

Treaties in parliaments and courts

traditional assumptions of dualist theories, the domestic system determines the status of international law in the domestic legal order. As, for instance, the German Constitutional Court convincingly argues, the Basic Law is the starting point for assessing the status of international law in the domestic order.147 Similarly, the South African Constitutional Court focuses on the constitutional provisions on the relationship between international law and domestic law to assess the status of international law in the domestic order.148 With the exception of direct effect and supremacy recognized by EU courts149 and the supremacy of the American Convention on Human Rights developed in the jurisprudence of the Inter-American Court of Human Rights,150 direct applicability and the rank of international law in the domestic order is generally determined on the domestic level, not the international one. But which kinds of rules on direct applicability do these different systems contain? Article VI, Clause 2 of the US constitution highlights that ‘all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby’. The reference to the binding nature of the treaties for judges seems to imply that these treaties are directly applicable – at least for state judges. In 1829, the Supreme Court held that in light of the supremacy clause courts should regard a treaty as ‘equivalent to an act of the legislature’ when it ‘operates of itself without the aid of any legislative provision’.151 This ruling is regarded to be the origin of self-executing treaty provisions that are directly applicable in the US domestic order without implementing legislation.152 The South African constitution even explicitly recognizes the possibility of self-executing treaty provisions. According to part two of Section 231(4) of the constitution, ‘a self-executing provision of an agreement that has been approved by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament’.153 In contrast, the German constitution does not contain explicit rules on the direct applicability of treaties. Article 25 of the Basic Law only addresses the Federal Constitutional Court, 2 BvR 1481/04, 14 October 2004, para. 34. See for instance Glenister v The President of the Republic of South Africa and Others [2011] ZACC 6, 2011 (3) SA 347 (CC), 17 March 2011. 149 See ECJ, Van Gend and Loos, Case 26/26, 5 February 1963; ECJ, Costa/ENEL, Case 6/64, 15 July 1964. 150 See Almonacid Arellano et al. v Chile, Preliminary Objections, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H. R. (ser. C) No. 154, para. 124 (Sep. 26, 2006). 151 Foster v Neilson, 27 US (2 Pet.) 253, 314 (1829). 152 Restatement (Fourth), § 310, Comment. 153 On this, Dugard, ‘International Law’, 83–5; Dugard and Coutsoudis, ‘Place’, 81–6. 147 148

Towards judicial engagement

317

direct applicability of ‘general rules of international law’, meaning customary international law and general principles of international law but not treaties.154 Article 25 of the Basic Law stipulates that these rules ‘shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory’. While there exists some controversy as to whether all rules of customary international law are directly applicable, or only those directed to individuals,155 a similar provision for treaties does not exist. Likewise, the Indian constitution does not mention the idea of direct applicability. While India is required to ‘foster respect for international law and treaty obligations’ (Article 51(c) of the Indian constitution), it is silent on what this means for the application of the treaties in the domestic order. The Supreme Court assumes that the Indian constitution does not aim at creating direct applicability of treaty provisions without an implementing law.156 Only customary international law is usually regarded to be directly applicable.157 The US and South African systems thus recognize direct application on the constitutional level, in a more indirect form (treaties binding for (some) judges) and a more explicit form (reference to self-executing treaty provisions). In contrast, the Indian and German constitution do not contain a similar rule. However, these differences are not reflected in judicial practice. Despite the language in Article VI, Clause 2 of the constitution the US Supreme Court adopted a restrictive view on direct applicability in the 2000s.158 In contrast to scholarly voices,159 the Supreme Court does not interpret the supremacy clause to entail a presumption in favour of self-execution.160 In South Africa, Section 231(4) of the constitution hardly plays a role in South African jurisprudence because the notion of directly applicable or self-executing treaty provisions is not known in the South African legal tradition.161 Some scholars even dismiss the self-execution concept as an unwise transfer from US doctrine.162 At least

154 On this see C. Tomuschat, ‘Art. 25’, in W. Kahl, C. Waldhoff and C. Walter (eds), Bonner Kommentar (C.F. Müller, 197. Aktualisierung 2019), paras 26–7; general principles of international law only later came to be understood to fall under the term: Schorkopf, Staatsrecht, 153. 155 C. Marxsen, Völkerrechtsordnung und Völkerrechtsbruch. Theorie und Praxis der Illegalität im ius contra bellum (Jus Publicum 2021), ss. 390–3. 156 Jolly George Verghese & Anr v The Bank of Cochin on 4 February, 1980; 1980 AIR 470, 1980 SCR (2) 913, 918. 157 Vellore Citizens’ Welfare Forum v Union of India (1996) 5 SCC 647, 28 August 1996; Singh, ‘Treaties’, 77-78. 158 For earlier case law Restatement (Fourth), § 310, Reporters’ Notes, 1. 159 Restatement (Third), § 111, Note 5. 160 Restatement (Fourth), § 310, Reporters’ Notes, 3. 161 On some practice, however, Dugard and Coutsoudis, ‘Place’, 81–6. 162 Botha, ‘Reassessment’, 91; Keightley, ‘Final Constitution’, 413.

318

Treaties in parliaments and courts

in these cases, the constitutional status did not lead to broad reliance on the notion of direct applicability. In contrast, German courts assume that certain treaty provisions may be self-executing in the domestic order without an implementing law.163 Even though the notion of directly applicable treaty provisions is not constitutionally grounded, the concept found its way into the jurisprudence of the Weimar courts, which had to determine the status of detailed provisions of the Versailles Treaty in the domestic order.164 To make sense of direct application in the German domestic law, German legal scholars referred to the recognition of ‘self-executing’ treaties in US law.165 Under the Basic Law, the notion of directly applicable treaty provisions lived on. If a treaty provision is ‘capable in its wording, purpose and content to produce legal effects in the same way as a provision of domestic law’, it is regarded to be directly applicable.166 German courts frequently refer to the idea, at times recognizing but often rejecting the direct applicability of a treaty provision.167 In India, the Supreme Court stresses that ‘international conventional law must go through the process of transformation into the municipal law before the international treaty can become an internal law. From the national point of view, the national rules alone count’.168 Nonetheless, in its jurisprudence, the Supreme Court at times tends to treat treaties as directly applicable even without implementing legislation.169 In Vishaka v Rajastan the Supreme Court held that CEDAW provisions on sexual harassment at the workplace are directly applicable in the domestic order, even though no implementing law existed.170 With reference to Article 51(c) of the Indian constitution, the Court emphasized that ‘[a]ny International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into [the constitutional] provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee’.171 The

Federal Constitutional Court, 1 BvL 7/66, 9 December 1970, para. 42. RG, Judgment of 18 June 1927, I 372/26. 165 Walz, Völkerrecht, 243­–5; 249. 166 Federal Constitutional Court, 1 BvL 7/66, 9 December 1970, para. 42; ibid, 2 BvR 637/09, 21 June 2016, para. 13; for earlier case law, see Federal Constitutional Court, 1 BvR 65/54, 21 March 1957, para. 16. 167 Chapter 10.2; on the early debate in scholarship see A. Bleckmann, Grundgesetz und Völkerrecht. Ein Studienbuch (Duncker & Humblot 1975), 279–85. 168 Jolly George Verghese & Anr v The Bank Of Cochin on 4 February, 1980; 1980 AIR 470, 1980 SCR (2) 913, 918; for reference to the incorporation doctrine for international law in general, however, see Gramophone Company of India v Birendra Bahadur Pandey, [1984] 2 SCR 664 (673). 169 Hegde, ‘Courts’, 59. 170 Vishaka v State of Rajastan, AIR 1997 SC 3011, 13 August 1997; Chapter 7.4. 171 Ibid, para. 7. 163 164

Towards judicial engagement

319

Supreme Court then formulated the Vishaka guidelines containing a broad definition of sexual harassment and duties of the employer to prevent and deter violations as the new applicable law on sexual harassment at the workplace as long as no legislation exists.172 While the Supreme Court framed its reasoning as consistent interpretation, the decision de facto directly applied the CEDAW provisions in the domestic order even though the legislature had not passed implementing legislation.173 In the 2014 National Legal Service Authorities v India case, the Supreme Court once more formally referred to the principle of consistent interpretation but de facto applied the international instrument directly in the domestic order.174 In the absence of parliamentary legislation on transgender people, the Court decided to ‘make’ domestic law on transgender issues.175 The divergent domestic rules on the matter of direct application are thus not reflected in practice. Whether the idea of direct applicable treaty provisions is recognized, depends on the judicial attitude towards international law and on the familiarity with the self-execution notion rather than on its constitutional status.176 What is there to say about this mismatch? It is deplorable that US and South African courts do not take the concept of self-executing treaty provisions more seriously. The supremacy clause in the US constitution and Article 231(4) of the South African constitution obligate domestic courts to engage with the concept. Since the supremacy clause determines that (some) judges are bound by treaty law, judges should be open to embracing the idea of self-execution. As Louis Henkin, the rapporteur of the Restatement (Third), argued, the supremacy clause implies a presumption for the self-executing character of a treaty,177 at least if the language of a provision is sufficiently precise and if the provision is directed at individuals. In this vein, Justice Breyer’s dissenting opinion in Sanchez-Llamas v Oregon is highly convincing. In light of the supremacy clause, Article 36 of the VCCR on consular notification is directly applicable in the US legal order.178 South African courts should also Ibid, para. 16. Atrey, ‘India’, 188; for a similar assessment see Hegde, ‘Courts’, 60; Singh, ‘Treaties’, 64. 174 National Legal Service Authorities v India (2014), WP (Civil) No 604 of 2013, 15 April 2014. 175 In 2019, the legislature finally passed the Transgender Persons (Protection of Rights) Bill: The Transgender Persons (Protection of Rights) Act, 2019, 5 December 2019. 176 Buergenthal, ‘Treaties’ (383; 395); on this Chapters 7 and 10. 177 Restatement (Third), § 111, Note 5; for a different view Restatement (Fourth), § 310 (2). 178 Sanchez-Llamas v Oregon, 548 US 331, 371–8 (2006), 28 June 2006, Dissenting Opinion, Justice Breyer. 172 173

320

Treaties in parliaments and courts

engage more strongly with the idea of self-execution. The sweeping statement in AZAPO v President of South Africa that ‘[i]nternational conventions and treaties do not become part of the municipal law of our country, enforceable at the instance of private individuals in our courts, until and unless they are incorporated into the municipal law by legislative enactment’ is misplaced.179 In Glenister II, the Constitutional Court should have engaged with Section 231(4) of the constitution when assessing the status of the anti-corruption treaty in the domestic order.180 A more open judicial attitude towards the notion would enable the development of a consistent jurisprudence on direct applicability and allow for a more serious judicial engagement with international treaty law. At the same time, one should not overestimate the repercussions of direct application. General comparative assessments in various jurisdictions show that ‘more often than not’ domestic courts conclude that a particular norm is not directly applicable.181 As this study has demonstrates, in relation to the treaties under examination, the notion of self-executing treaty provisions has been rarely used to broaden protections for the individual in the domestic order. For instance, German courts regard provisions of human rights treaties containing social rights as well as provisions of climate change treaties to be non-self-executing.182 Where German courts recognize direct applicability of certain treaty provisions, the international rules do not play a major role for the outcome of the case at hand. Even if the CRPD’s non-discrimination provision is held to be directly applicable, it is regarded as equivalent to the prohibition of discrimination under constitutional law.183 While this has been criticized,184 it is also true that many treaty provisions contain rather open-ended language and are directed at states and not at individuals. Direct applicability allows domestic courts to draw treaty provisions directly in the domestic order only

179 Constitutional Court, Azanian Peoples Organisation (AZAPO) v President of the Republic of South Africa, CCT 17/96, 25 July 1996, para. 26. 180 Glenister v The President of the Republic of South Africa and Others [2011] ZACC 6, 2011 (3) SA 347 (CC), 17 March 2011. 181 Nollkaemper, ‘Duality’, 105. 182 Chapter 10.2. 183 Federal Social Court, B 1 KR 10/11 R, 6 March 2012, paras 29–32; Federal Social Court, B 1 KR 12/13 R, 2 September 2014, para. 23. 184 Seibert-Fohr, ‘Anforderungen’; 414–16; Krajewski, ‘Beiwerk’, 11; J. von Bernstorff, ‘Anmerkungen zur innerstaatlichen Anwendbarkeit ratifizierter Menschenrechtsverträge: Welche Rechtswirkungen erzeugt das Menschenrecht auf inklusive Schulbildung aus der UN-Behindertenrechtskonvention im deutschen Sozialund Bildungsrecht?’ Recht der Jugend und des Bildungswesens 59 (2011), 203 (204).

Towards judicial engagement

321

if they are sufficiently precise185 and if the parties to the treaty intended their direct applicability.186 Moreover, direct applicability has its strongest impact if it is linked to treaty supremacy. If directly applicable treaty provisions conflict with domestic legislation and if they have superior status, they will determine the outcome of the case. If they have no superior status, the last-in-time rule applies. It is important to note that in the domestic systems studied here, direct applicability does not go hand in hand with supremacy. While some constitutions of constitutional democracies grant treaties precedence over statutory law (for instance, Argentina, Costa Rica, France and Poland) or even constitutional law (Belgium and the Netherlands),187 the German, Indian, US and South African constitutions do not. In the US, Article VI, clause 2 of the constitution vests the ‘Laws of the United States’ with supremacy just like treaties. This means that federal statutory law and treaties have the same rank. Treaties only override state law but have no precedence over federal law.188 Accordingly, the Supreme Court embraces the last-in-time rule holding that in the case of conflict ‘the latest expression of the sovereign will’ takes precedence.189 Similarly, Section 231(4) of the South Africa constitution recognizes the possibility of self-executing treaty provisions, but only as long as the agreement is not ‘inconsistent with the Constitution or an Act of Parliament’.190 The provision highlights that the directly applicable treaty provisions are not capable of overriding parliamentary legislation. Moreover, the Indian and German constitutions do not contain any rules on treaty supremacy. Because of the lack of an explicit provision, Indian courts highlight that the provisions in conflict with domestic law are not enforceable

Kaiser, ‘Treaties’, 16; Hollis and Vásquez, ‘Self-Execution’, 474–6. On this see Restatement (Fourth), § 310; Foster v Neilson, 27 US (2 Pet.) 253, 314 (1829); see also Federal Constitutional Court, 1 BvL 7/66, 9 December 1970, para. 42; ibid, 2 BvR 637/09, 21 June 2016, para. 13. 187 Section 75(22) of the Argentine constitution; Article 7 of the Constitution of Costa Rica; Article 55 of the French constitution; Article 91(2) of the Polish constitution; some constitutions also accord only certain human rights treaties precedence (Czech Republic and Slovakia): on this Seibert-Fohr, ‘Anforderungen’, 395; 407; A. Lang, Die Verfassungsgerichtsbarkeit in der vernetzten Weltordnung (Springer 2020), 281–3; Buergenthal, ‘Treaties’, 345–59; A. Peters, ‘The Globalization of State Constitutions’, in J. Nijman and A. Nollkaemper (eds), New Perspectives on the Divide between International and National Law (OUP 2007), 251 (260). 188 Whitney v Robertson, 124 US 19 January 1888; Restatement (Fourth), §§ 308, 309. 189 Whitney v Robertson, 124 US 190 (195), 9 January 1888; Restatement (Fourth), § 309 (2). 190 On this Dugard and Coutsoudis, ‘Place’, 81–6. 185 186

322

Treaties in parliaments and courts

in the domestic order.191 This means that they are not superior to parliamentary legislation. Similarly, Indian courts allow conflicting municipal law to override custom.192 The German constitution only mentions the supremacy of ‘general rules of international law’ (Article 25 of the Basic Law). The supremacy is interpreted to apply to custom and general principles of international law facing parliamentary legislation.193 Because no such rule exists for treaties, the Constitutional Court and many commentators emphasize that treaties have the same status as parliamentary legislation.194 In its treaty-override decisions, the German Constitutional Court highlighted accordingly that parliamentary legislation may override earlier treaties.195 While some question this view, pointing to the Völkerrechtsfreundlichkeit of the German Basic Law,196 the view that the legislature may override treaty law is deeply entrenched in German constitutional law. Thus, in the four jurisdictions, direct application does not mean supremacy over domestic parliamentary legislation. 13.3.2 The Potential of Consistent Interpretation Most of the time, domestic courts employ the interpretative technique of consistent interpretation (or harmonization) to integrate treaties into the domestic order.197 Comparative studies even suggest that consistent interpretation is more effective in giving effect to international law than the notion of self-executing

191 High Court of Bombay, Ranjit Kumar Rajak v State Bank of India 2009 (5) BomCR 227, 5 August 2009, www​.legitquest​.com/​case/​ranjit​-kumar​-rajak​-v​-state​ -bank​-of​-india/​468E1, Rn. 17. 192 Vellore Citizens’ Welfare Forum v Union of India (1996) 5 SCC 647, 28 August 1996; Singh, ‘Treaties’, 77–8; on custom see Hegde, ‘Courts’, 60; Chandra, ‘Dualism’, 34. 193 H. Aust, ‘Art. 25’, in I. Münch and P. Kunig (eds), Grundgesetz. Kommentar, vol. 1 (Beck, 7th ed. 2021), para. 9; Tomuschat, ‘Art. 25’, paras 66–7. 194 Nettesheim, ‘Art 59’, para. 186f; K.F. Gärditz, ‘“Treaty Override”’, AJIL 110 (2016), 339 (344–5); Streinz, ‘Art 59’, paras 64a, 65; Butzer, Haas and Deutelmoser, ‘Art. 59’, para. 102; Schäfer, Treaty Overriding, 162–3; A. Kees, ‘Bricht Völkerrecht Landesrecht?’ Der Staat 55 (2015), 63 (87–91); M. Krumm, ‘Legislativer Völkervertragsbruch im demokratischen Rechtsstaat’, AöR 138 (2013), 364 (386–404); M. Heinke, ‘Höher oder Schwerer? – Ist die Vorrangrelation zwischen Völkervertragsrecht und Bundesrecht eine Frage der Abwägung? Zur Entscheidung des Bundesverfassungsgerichts zum Treaty-Override’, Der Staat 55 (2016), 393. 195 Federal Constitutional Court, 15 December 2015, 2 BvL 1/12, paras 45–6. 196 See Justice König in her dissenting opinion, Federal Constitutional Court 15 December 2015, 2 BvL 1/12, separate opinion Justice König, para. 8. 197 Chapter 6.

Towards judicial engagement

323

treaty provisions.198 By construing domestic law in light of treaty obligations of a state, courts do justice to the domestic as well as international demands.199 This interpretative technique is common in all four states. German courts had long interpreted parliamentary legislation and even the constitution in light of international law without mentioning an explicit normative base.200 The Constitutional Court set this practice explicitly on a normative footing in its 2004 Görgülü case.201 The case concerned the relationship between the Basic Law and the ECHR, including the jurisprudence of the ECtHR. The Constitutional Court stressed that the ‘constitutional significance of an agreement under international law, aiming at the regional protection of human rights, is the expression of the Basic Law’s commitment to international law (Völkerrechtsfreundlichkeit)’.202 The Court added that ‘the Basic Law encourages both the exercise of state sovereignty through the law of international agreements and international cooperation, and the incorporation of the general rules of public international law, and therefore is, if possible, to be interpreted in such a way that no conflict arises with duties of the Federal Republic of Germany under public international law’.203 The Court then pointed to the Basic Law’s provisions on international cooperation (Article 24 of the Basic Law), European integration (Article 24 of the Basic Law) and the reception of general rules of international law and of international agreements (Article 25 of the Basic Law and Article 59(2) of the Basic Law), as well as the unconstitutionality of wars of aggression (Article 26 of the Basic Law). The Court concluded that ‘[i]n this complex of norms, the German constitution, as is also shown by its preamble, aims to incorporate the Federal Republic of Germany into the community of states as a peaceful member having equal rights in a system of public international law serving peace’.204 While the Constitutional Court had long referred to the international law-friendliness of the Basic Law to stress the necessity of respecting the legal orders of other states,205 the

198 Y. Lupu, P.-H. Verdier and M. Versteeg, ‘The Strength of Weak Review: National Courts, Interpretive Canons, and Human Rights Treaties’, International Studies Quarterly 63 (2019), 507. 199 Nollkaemper, National Courts, 117–65. 200 For interpreting domestic law in light of international law, Federal Administrative Court, 7 C 29/85, 17 December 1986, paras 11–12; for interpreting constitutional law in light of international law, Federal Constitutional Court, 2 BvR 589/79, 26 March 1987, para. 35. 201 Federal Constitutional Court, 2 BvR 1481/04, 14 October 2004. 202 Ibid, para. 33. 203 Ibid, para. 33. 204 Ibid, para. 33. 205 Federal Constitutional Court, 1 BvR 93/64, 30 June 1964, para. 27; ibid, 1 BvR 636/68, 4 May 1971, para. 44; some scholars, however, connected the princi-

324

Treaties in parliaments and courts

concept was now linked to the notion of harmonizing interpretation. The international law-friendliness of the Basic Law obliges German courts to take into account provisions of the ECHR and ECtHR jurisprudence when interpreting the constitution. The Görgülü jurisprudence was later doctrinally consolidated by situating the Basic Law’s international law-friendly interpretation (or rather human rights-friendly interpretation) in Article 1(2) of the Basic Law. The provision recognizes a particularly strong role for human rights in the domestic order by stipulating that the ‘German people […] acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world’.206 Apart from regional human rights agreements, the Court suggested that also UN human rights treaties such as the CRPD should be treated as ‘interpretative aids for the determination of the content of scope of fundamental rights’.207 Even though the Court did not refer to the principle of international law-friendliness in this context, it cited its decisions on the ECtHR jurisprudence.208 The principle of international law-friendliness thus implies that the Basic Law needs to be construed in light of regional and international human rights provisions. Indian courts largely operate with the notion of harmonization as a form of consistent interpretation.209 In its 1980 Jolly George Verghese case, the Supreme Court stressed that if room for interpretation exists, domestic provisions need to be interpreted in line with international obligations because India is required to ‘foster respect for international law and treaty obligations’ (Article 51(c) of the Indian constitution).210 In later decisions, the Supreme Court expanded this jurisprudence to the interpretation of the Indian constitution. The Court emphasized with reference to Article 51(c) of the Indian constitution that ‘[a]ny International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into [the constitutional] provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee’.211 The South African constitution explicitly recognizes consistent interpretation. According to Section 233 of the constitution, domestic courts ‘must

ple of international-law friendliness to the interpretation of domestic law, Bleckmann, Grundgesetz, 278–9; 298–9; ibid, ‘Völkerrechtsfreundlichkeit’, 312. 206 On this Federal Constitutional Court, 2 BvR 2365/09, 4 May 2011, para. 90. 207 Federal Constitutional Court, 2 BvR 882/09, 23 March 2011, para. 52. 208 Ibid, para. 52. 209 Chapter 6.2. 210 Jolly George Verghese & Anr v The Bank Of Cochin on 4 February 1980 AIR 470, 1980 SCR (2) 913. 211 Vishaka v State of Rajastan, AIR 1997 SC 3011, 13 August 1997, para. 7.

Towards judicial engagement

325

prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law’. This also applies to constitutional law. Section 39(1)(b) of the constitution stipulates that the Bill of Rights ‘must be interpreted’ in the light of international law. In the US, the Supreme Court developed the Charming Betsy canon already in 1804. The Court stated that ‘an act of Congress ought never to be construed to violate the laws of nations if any other possible construction remains’.212 While this canon has been frequently applied by US courts to statutory law, US courts have been much more hesitant to apply it to the interpretation of constitutional rights. Today, the majority of justices reject the idea of turning to treaties when interpreting the constitution.213 The few examples of judicial engagement with treaties have largely been limited to the Eighth Amendment jurisprudence. In Roper v Simmons, ‘a high-water mark’ of reliance on international human rights law in constitutional interpretation by the Supreme Court,214 the majority opinion referred to the ‘overwhelming weight of international opinion against the juvenile death penalty’.215 However, this jurisprudence entails no acceptance of Charming Betsy in constitutional interpretation. Since the US has not ratified the CRC, the canon is not applicable. As Justice Kennedy emphasized, the United States was the only state besides Somalia that had not ratified the CRC prohibiting capital punishment for criminal offences by juveniles under 18.216 How should one assess the different roles given to treaties in constitutional interpretation? Is the US Sonderweg justified because of its particular constitutional outlook? Some differences exist. The US constitution does not contain a provision similar to Section 39(1)(b) of the South African constitution stipulating that the Bill of Rights ‘must be interpreted’ in the light of international law. This, however, does not mean that such a rule is a necessary precondition for relying on treaties in constitutional interpretation. Neither the German nor the Indian constitutions contain explicit provisions. In the Indian context, a literal understanding of Article 51(c) of the Indian constitution as a directive principle of state policy runs counter to its application in domestic courts because the constitutional text determines that directive principles

Murray v The Schooner Charming Betsy, 6 US 64, 118 (1804), 1 January 1804. Chapter 9.4 and 9.5. 214 Spiro, ‘Twilight’, 320; on the cases see also D. Amann, ‘International Law and Rehnquist-Era Reversals’, Georgetown Law Journal 94 (2005), 1319. 215 Roper v Simmons, 543 US 578 (2005), 1 March 2005. 216 Ibid, 576. 212 213

326

Treaties in parliaments and courts

‘shall not be enforced by any court’.217 The Indian courts nonetheless embrace the idea of harmonizing the constitution with international law. Furthermore, German courts developed the concept of international law-friendliness (Völkerrechtsfreundlichkeit) of the Basic Law to grant international law a strong role in the interpretation of the constitution. German courts relied on the Basic Law’s provisions touching upon foreign relations to construe the interpretative technique of Völkerrechtsfreundlichkeit.218 A völkerrechtsfreundliche interpretation of the US constitution seems well possible. The US constitution envisions a strong role for treaties. Article VI, Clause 2 of the US constitution stipulates that ‘all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land’ and that ‘Judges in every state shall be bound thereby’. Against this background, it seems to make sense if US courts take treaty obligations of the US into account when interpreting the constitution. US constitutional law thus could be informed by the content of US treaty obligations. This, of course, does not mean that these treaty obligations are capable of trumping constitutional law. The supremacy clause places treaties on the same level as federal law and thus indicates that treaties do not override federal law (including the constitution).219 Instead, in line with the Charming Betsy canon, the constitution ‘ought never to be construed to violate the laws of nations if any other possible construction remains’.220 In the very rare case of a conflict between a constitutional provision and a treaty obligation, the constitution would prevail. All in all, consistent interpretation offers a way to smoothly align domestic law with a state’s international treaty obligations.221

217 On the interpretation of Article 51 of the Indian constitution see Jain, ‘Democratizing Force’, 321; Rajamani, ‘Constitutional Schema’, 145–6. 218 Chapter 6.1.1. 219 Whitney v Robertson, 124 US 19 January 1888; Restatement (Fourth), §§ 308, 309. 220 Murray v The Schooner Charming Betsy, 6 US 64, 118 (1804), 1 January 1804. 221 D. Hollis, ‘Treaties – A Cinderella Story’, Proceedings of the American Society of International Law 102 (2008), 412 (415–16).

14. Conclusion to Treaties in Parliaments and Courts: The Two Other Voices The approaches of the two other voices – parliament and courts – to treaties in the four states studied in this book oscillate between reliance and reluctance. The executive approach alone does not determine the respective states’ positions towards treaties. The legislative branch is often empowered to monitor the executive’s approach to a treaty. Most of the time, parliaments support the executive take, promoting treaties through granting consent and translating the treaties into the domestic order through implementing legislation. At times parliamentary actors may differ from the position of the executive, either denying the required consent (with their potential veto player position occasionally shaping international negotiations) or lobbying for a more supportive stance towards certain treaty regimes. Through checking the executive and translating treaties into the domestic order, the legislative branch contributes to a state’s position towards treaties. These powers have been used differently in the four states under discussion. The US Senate became the veto power par excellence, expressing a sceptical position towards the CRC, CEDAW, CRPD, Rome Statute and Kyoto Protocol. While some members of Congress urged the government to support the human rights treaty regimes, others endorsed US withdrawal from the Paris Agreement. With the exception of the CAT, Congress did not adopt implementing legislation on the treaties. In India, parliamentarians used inquiries to garner information from the executive and at times critically referred to the executive’s approach to treaties. In general, parliamentary scrutiny of the treaties remained relatively limited. Nonetheless, the CRC, CEDAW and CRPD were mentioned as sources of inspiration for domestic implementing legislation. In South Africa, the parties in opposition generally endorsed the executive support for human rights treaties, the Rome Statute and the Paris Agreement. In response to the Zuma administration’s withdrawal notification on the Rome Statute, the DA challenged the executive position. Furthermore, the parliamentary chambers pointed to UN human rights treaties, the Rome Statute and the Paris Agreement as guiding poles for legislative action. In Germany, the Länder successfully lobbied for declarations to the CRC and CAT limiting the scope of the treaties in the German legal order. Usually, however, parliamentarians (including opposition parliamentarians) endorsed 327

328

Treaties in parliaments and courts

executive support for the treaties discussed here. When the executive did not embrace treaties like the CRMW and the draft of a Business and Human Rights Treaty, the Green Party and Left Party in opposition urged the government to take action. Furthermore, German parliament passed legislation referring to the CRPD, the Rome Statute, the Kyoto Protocol and the Paris Agreement as inspiration, at times after controversial debates between the parliamentary majority and the opposition about the scope of implementation. The judicial branch is primarily occupied with assessing treaties’ impact on the domestic order. Domestic courts may interpret domestic law consistently with treaty obligations, directly apply them in the domestic order and treat them as evidence for custom. In contrast, courts may reject the use of foreign sources for constitutional interpretation, hold treaty provisions to be non-self-executing, dismiss cases as non-justiciable and deviate from international bodies’ specific decisions. While the engagement with treaties often follows the political branches’ approaches, at times courts may challenge or depart from those. Domestic courts may construe domestic law to prohibit withdrawal from treaties or may suggest that treaties which the state did not ratify affect the understanding of domestic provisions. The courts in the four states adopted different roles. Indian courts used human rights treaties to broaden the scope of fundamental rights, at times de facto implementing the treaties into the domestic order without prior parliamentary action. German courts turned to human rights treaties to substantiate the reasoning on the scope of fundamental rights, while the Rome Statute and the ad hoc tribunals’ jurisprudence informed the interpretations of domestic law. At the same time, German courts deviated from decisions of the CRPD Committee and interpreted the Kyoto Protocol as not directly obliging the executive to take mitigating action. In South Africa, courts pointed to human rights treaties and treaty body decisions when interpreting the Bill of Rights and relied on the Rome Statute and international environmental law to inform interpretations of domestic law. Moreover, South African courts became a guardian against ICC withdrawal without parliamentary involvement. In the US, the more liberal-leaning justices used the CRC to confirm that the death penalty for juveniles violated the Eighth Amendment. In contrast, more conservative-leaning justices rejected the reliance on treaties in constitutional interpretation and adopted a broad understanding of the notion of non-self-executing treaty provisions. Furthermore, they used non-justiciability doctrines to limit the reach of ATS jurisprudence, the prospects for climate change litigation and the chances of judicial oversight over the executive. The respective foreign relations laws strongly shape how these divergent approaches coalesce into the state’s position towards international law. The design of the respective constitutional rules on the allocation of the domestic treaty-making power and the treaties’ reception in the domestic order affect

Conclusion

329

the branches’ positioning in the respective historical and political contexts. While the approaches of the executives are often informed by historical self-perceptions and (geo-)political interests, foreign affairs law also matters. The Clinton and Obama administrations’ failure to ratify the CRC, CEDAW and CRPD on behalf of the US cannot be understood without consideration of the two-thirds majority threshold for senatorial consent. The quick revocation of the Zuma administration’s notice of withdrawal from the Rome Statute can only be grasped with an understanding of parliamentary participation in treaty withdrawal. The German reservations to the CRC and CAT (now lifted) may only be apprehended in light of the Lindau Agreement and Länder participation in the treaty-making process. Moreover, whether parliaments act as promoters, translators, veto players or shapers of treaties depends at least to some extent on whether and how parliamentary chambers take part in the treaty-making, treaty withdrawal and treaty implementation process. The non-involvement of parliament in the treaty-making process not only (partly) explains the limited role of the Lok Sabha and Rajya Sabha as promoters of the treaties discussed here, but also seems to contribute to a rather limited role as translators of the treaties into the domestic order. In contrast, the constitutional requirement of a parliamentary simple-majority consent seems to enhance the role of parliamentarians as translators of treaties. As the German example demonstrates, involvement in the treaty-making process may enable treaty engagement of the parliamentary majority and the opposition, allowing the latter to push for far-reaching effects of such treaties in the domestic order. The US Senate’s veto player role stems from the combination of the two-thirds majority threshold and the perception among a minority of Senators that the CRC, CEDAW and CRPD favour progressive positions in the ‘culture wars’. In contrast, the Rome Statute and Kyoto Protocol would presumably not even have received simple-majority endorsement in Congress due to bipartisan scepticism. In any case, the frequent use of (or threat of) veto power by the Senate, and Congress’ reluctant stance towards binding mitigation targets, contributed to the inclusion of non-binding mitigation obligations for developed countries in the Paris Agreement. The respective constitutional designs also partly shape domestic courts’ approaches to treaties. While in the Indian legal system, which is understood as dualist, notions such as self-executing and non-self-executing treaty provisions are unimportant, the supremacy clause in Article VI of the US constitution, with its monist ring, makes the dichotomy relevant. Because Section 39(1)(b) of the South African constitution requires courts to consider international law when interpreting the Bill of Rights, South African courts were particularly willing to harmonize domestic law and international law and decisions by international bodies. In contrast, the non-existence of a similar provision in the US may partly explain the hesitant approach there.

330

Treaties in parliaments and courts

Besides the (rather scarce) constitutional standards on how to integrate treaties into the domestic order, judicial attitudes are often an important explanation for divergent practices. The ideological leanings of US justices and judges strongly affect the judicial integration of human rights treaties. More conservative justices oppose confirmatory references to human rights as foreign to the US legal heritage, construe the idea of non-self-executing treaty provisions broadly and rely on separation-of-powers arguments to avoid deciding on matters of foreign affairs. Justices with more liberal leanings endorse international standards as confirmatory for constitutional transgressions in certain death penalty cases and are more willing to allow direct application of treaties’ supremacy. In India, after the emergency period, human rights treaties became a tool for broadening interpretations of fundamental rights. Today, reliance on such treaties is used at times to develop guidelines on how to address policy issues such as sexual harassment in the workplace and transgender rights, in light of the (perceived) failure of the political branches. In South Africa, the judicial understanding of human rights treaties and international criminal treaties as a counter-model to the apartheid past explains the broad reliance on such treaties (with the exception of the ICESCR Committee’s ‘minimum core’ approach). Furthermore, the conflict with the Zuma administration about judicial independence at times led domestic courts to construe domestic law to protect international institutions from executive challenges. In Germany, courts developed the concept of international law-friendliness to allow the integration of ECtHR jurisprudence and treaty bodies’ comments into the domestic order against the background of the Basic Law’s ‘open statehood’ conception. At the same time, the Constitutional Court is cautious to safeguard its self-understanding as the final arbiter of the German constitution willing to deviate from international bodies’ decisions. Moreover, judicial practices are highly contingent on the respective states’ ratification records. Because Germany and South Africa ratified the Rome Statute, German and South African courts developed a jurisprudence engaging with the Statute and the international criminal courts’ jurisprudence, whereas Indian and US courts did not (except as evidence for custom). US courts’ reluctance to rely on UN human rights treaties is linked to the low ratification record and the political branches’ decision to declare those treaties to be non-self-executing. Furthermore, climate change treaties play a limited role in the jurisprudence, for different reasons. The US did not ratify the Kyoto Protocol; the Protocol contains no binding mitigation targets for India and South Africa; and the flexible design of the Protocol does not invite reliance on it as a binding standard in German jurisprudence. Similarly, the Paris Agreement, with its non-binding mitigation targets, has as yet not been regarded to contain an obligation for stronger climate change measures in the respective domestic courts.

Conclusion

331

While the different practices can only be understood in their respective legal, historical and political contexts, the study of the respective approaches in the four states allows discussion of the proper role of the three branches. In light of the findings, arguments in favour of shared treaty-making powers between the executive and legislature and of judicial engagement with treaties seem more plausible than those against it. Parliamentary participation seems to provide an incentive for the executive to properly inform the legislature about treaty negotiations. This enables not only the parliamentary majority but also the opposition to develop a position on a treaty. The opposition may frame its alternative policy proposal as early as the treaty negotiations. This early involvement seems to be important also because it may affect the parliamentary debate on implementation legislation. In this debate, compliance with international obligations may become a key argument, allowing the treaty to resonate in the domestic order. Furthermore, parliamentary consent to executive withdrawal from treaties seems to be a crucial control mechanism. In the parliamentary debate on withdrawal, the parliamentary majority and minority may flag out their understandings of the benefits of the treaty. If parliament has taken responsibility for the treaty during the treaty-making process, it should also do so during the withdrawal process. In contrast, the arguments in favour of an executive prerogative or narrow parliamentary competences falter. Pointing to the danger of the legislative veto power overemphasizes the exceptional institutional and political context of such practices. Beyond the extraordinarily high two-thirds majority threshold in the US, exercise of the veto power occurs less often, in particular in parliamentary democracies. Furthermore, it seems unlikely that speaking with ‘two voices’ will limit the bargaining power of a state. Instead, the parliamentary position will be taken into account at the international level. This does not mean that parliaments and the executive are equal partners in treaty-making. The executive maintains the power to initiate a state’s action on a treaty and continues to dominate the process. However, parliamentary participation enables control and provides legitimacy from the directly elected political branch. Moreover, domestic courts should intervene in foreign affairs to safeguard the proper allocation of powers between the political branches. The parliamentary majority often has no interest in challenging the executive over its foreign policy. In parliamentary democracies, the government and parliamentary majority build a ‘community of action’. In such instances, it is important that the opposition is able to use courts to remind the legislature of its competences in foreign policy. Also, courts should rely on treaties as binding authority in domestic decisions to allow a state to comply with its international commitments. While domestic courts mostly do not act as ‘agents of the international community’, the reference to treaties indirectly contributes to strengthening

332

Treaties in parliaments and courts

the status of treaties in the domestic order. The arguments rejecting judicial involvement in foreign affairs and reliance on treaties do not convince. While speaking with ‘two voices’ may implicate diplomatic relations with other states, this is justified as long as the judicial decision-making concerning extraterritorial cases remains in the confines of international law. Also, treaties’ perceived democratic deficit does not prohibit courts’ reliance on treaties for constitutional interpretation. Through ratification, a state provides its consent to a treaty, often after parliamentary participation. The treaty receives legitimation so that courts should take international obligations into account. Beyond binding treaty obligations, domestic courts may also refer to non-binding international decisions and instruments. While such decisions lack a legitimating bridge to parliament, courts may use them as persuasive authority if they fit the domestic legal context. All in all, there is ample evidence that parliaments and courts should approach treaties with a clear and bright voice.

Index Comprehensive Economic and Trade Agreement (CETA) 268 Congressional Review Act 89 conservative legal movement 217–23 Constitutional Restoration Act 222 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) 11, 109–13 Convention on Biological Diversity 196 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 11, 28–31, 64, 71, 103 Convention on the Rights of Persons with Disabilities (CRPD) 29, 31–3, 54, 95–6, 117–18, 211–12 Convention on the Rights of the Child (CRC) 11, 27–9, 31, 33, 216 The Court and the World (Breyer) 165 customary international law 194–203 Alien Tort Statute litigation 198–201 explicit domestic mandate relevance 202–3 Germany 194–8 ILC draft 194 India 194–8 non-refoulement principle 197 polluter-pays principle 196 precautionary principle 196 South Africa 194–8 sustainable development 196–8

‘Achilles’ heel of international law 307 actus contrarius argument 287–91 African Charter on the Rights and Welfare of the Child 160 Alien Tort Statute (ATS) litigation 198–201, 243–5, 298–9 American Servicemembers’ Protection Act 36–8 Articles of Confederation 269, 271 Bali Plan of Action 232 Biodiversity Convention 119 bipartisan scepticism 34–41 Blackstone, William 258 Bundestag 4–5, 44–50, 56–60, 67–70, 94, 96–9, 102, 121, 137, 262, 264, 265, 274, 277, 278, 283, 291–3 Byrd–Hagel resolution 38–9, 88 California Alien Land Law 156, 177, 190, 225 Carbon Tax Act 107–8, 120 Clean Air Act 89 Clean Energy and Security Act 111 Clean Power Plan 89 Climate Action Now Act 78, 113 climate change treaties 9–14 climate protection laws 94–103 Code of Crimes Against International Law (CCAIL) 94–103 Coercing Virtue: The Worldwide Rule of Judges (Bork) 219 comparative foreign relations law 8, 17–18 comparative study methods 14–21 contextual approach 14–16 functional approach 14–15 one-size-fits-all approach 17 complementarity, principle of 10

democratic legitimacy 273, 275–8, 294–8 Detainee Treatment Act 110 direct applicability/self-execution 173–93 de facto implementation 184–8 Glenister case study 181–4 333

334

Treaties in parliaments and courts

limited explanatory powers 188–93 monism vs. dualism 188–93 non-discrimination provisions 180 PCIJ jurisprudence 173 UN Charter 175–9 domestic treaty-making process 5, 87, 271 dualist approach direct applicability/self-execution 188–93 foreign relations laws 6, 188–93 non-self-execution 233–6 enforcement 306–8 Environmental Protection Agency (EPA) 89 Equal Opportunities Act for Persons with Disabilities 95 European Convention on Human Rights (ECHR) 130–32, 158, 170, 199, 323, 324 European Court of Human Rights (ECtHR) 131–3, 142, 145, 146, 158, 170, 205, 210–13, 304, 323, 324, 330 European Court of Justice (ECJ) 142 executive discretion 240–42 crucial political question 242 judicial self-restraint 240 political question doctrine 240–42 executive power judicial engagement 306–8 shared treaty powers 258–70 dominance 261 foreign policy 261–4, 266 nationalistic parliaments 263 parliamentary impeachment 264 prerogative 258–64 sole executive decision-making 264–70 Federal Climate Protection Act 137 Federal German Climate Change Act 137 Federal Torture Act 109–10 Foreign Affairs Reform and Restructuring Act 109–10 Foreign Relations Authorization Act 34 foreign relations laws 3–9

as bargaining tool 86–92 comparative 8, 17–18 domestic treaty-making process 5, 87 dualist approach 6 four states comparative studies 3–9 monist approach 6 non-self-executing treaties 6 repercussions 51–2 self-executing treaties 7, 8 General Act on Equal Treatment 95, 121 Genocide Convention 62, 109, 134, 199, 266 German Constitutional Court 124, 125, 131, 137, 217, 233, 252, 276, 295, 309, 311, 312, 315, 316, 322 Germany CCAIL 94–103 climate protection laws 94–103 comparative studies 3–9 customary international law 194–8 direct application limitations 229–32 executive discretion 240–42 crucial political question 242 judicial self-restraint 240 political question doctrine 240–42 international law-friendly interpretations 130–38 fundamental rights 130–34 nemo tenetur se ipsum accusare principle 131 obiter dictum 135, 144 rule-of-law principle 135 statutory law 134–8 judicial supremacy 251–2 legal order 229–32 non-bindingness of committee decisions 209–12 non-discrimination provisions 180 non-self-execution 229–32 pleas for participation 67–70 promotions multi-partisan endorsement 56–60 oppositions 67–70 ratification pushes 67–70 sole executive treaty withdrawal 283–6

Index

unanimous consent 56–60 vetoing Bundestag support 44–7 Länder interference with treaty-making 47–51 Gingrich Revolution 27–33, 71 Global Climate Protection Act 111 Glorious Revolution (1688) 258 Greenhouse Gas Emissions Trading Act 122 human rights treaties 9–14, 25–33, 43, 44, 51, 54, 56, 57, 63, 65, 67, 70–73, 93–4, 103–5, 114–22, 130, 133 India comparative studies 3–9 customary international law 194–8 de facto implementation 184–8 foreign affairs 238–40 human rights treaties integration 114–19 international law-friendly interpretations 138–44 judicial supremacy 252–3 pleas for participation 63–6 scepticism 205–7 sole executive treaty withdrawal 281–2 vote of non-confidence 41–2 Indian Supreme Court 7, 8, 114, 116, 123–5, 141, 184, 185, 189, 196, 197, 205, 233, 238, 252, 297, 309, 311, 312 Inflation Reduction Act 113, 120, 122 Inter-American Court of Human Rights (IACtHR) 142 Intergovernmental Panel on Climate Change 232 International Climate Cooperation Re-engagement Act 75 international community agents 152, 306, 309, 310, 331 International Covenant on Civil and Political Rights (ICCPR) 11, 62–3, 114, 130–31, 139–42, 146–7, 157–60, 195, 212, 214–16, 225–6, 279, 297

335

International Covenant on Economic, Social and Cultural Rights (ICESCR) 11, 46, 69–70, 140–42, 147, 187, 206–8, 211, 229 International Criminal Court (ICC) 9–14, 34–7, 79–83, 105–7 International Law Commission (ILC) 194 international law-friendly interpretations Germany 130–38 fundamental rights 130–34 nemo tenetur se ipsum accusare principle 131 obiter dictum 135, 144 rule-of-law principle 135 statutory law 134–8 India 138–44 Apparel Export Promotion Council v Chopra 140 Bacchan Singh v State of Punjab 139–40 habeas corpus rights 138, 139 Jeeja Ghosh v Union of India 140–41 Jolly George Verghese case 139 Justice K.S. Puttaswamy v Union of India 141–2 Maken v Union of India 141 National Green Tribunal 143 Navtej Singh Johar & Ors. v Union of India 142 People’s Union for Civil Liberties v Union of India 140 judicial attitudes 161–72 Basic Law 161, 163, 168–70 comparative law ethos 166 constitutional rules/provisions/ jurisprudence 162–6 human rights treaties 161–2, 171–2 ideological backgrounds 164–5 open statehood 170 South Africa 145–55 Centre for Child Law v Director of Public Prosecutions 148 Christian Education South Africa v Minister of Education 147

336

Treaties in parliaments and courts

climate protection 150 comparative human rights jurisprudence 145–8 Government of South Africa v Grootboom 147 ICC withdrawal case 152, 155 international institution protection 151–5 Jaftha v Schoeman 147 National Coalition for Gay and Lesbian Equality v Minister of Justice 146 pacta sunt servanda principle 154 Ruta v Minister of Home Affairs 147 statutory law interpretation 148–51 S v Baloyi and Others 146–7 S v Makwanyane judgment 145 Toonen v Australia 146 Zimbabwe v Fick 153 US 156–61 Atkins v Virginia 157 Bowers v Hartwick 158 Bricker Amendment 156 Dudgeon v United Kingdom 158 Graham v Florida 160, 161 Grutter v Bollinger 159 Hamdan v Rumsfeld 159 Knight v Florida 157 Oyama v California 156 Roper v Simmons 159 standards of decency 157 Stanford v Kentucky decision 157 Thompson v Oklahoma 156–7 judicial attitudes 161–72 international law-friendly interpretations 161–72 Basic Law 161, 163, 168–70 comparative law ethos 166 constitutional rules/provisions/ jurisprudence 162–6 human rights treaties 161–2, 171–2 ideological backgrounds 164–5 open statehood 170

non-self-execution 233–6 judicial engagement 294–326 advantages 309–15 binding/non-binding international law 312 domestic courts 309, 311–13 international community agents 309, 310 Yogyakarta Principles 312–13 consistent interpretations 322–6 democratic legitimacy 294–8 enforcement 306–8 executive power 306–8 international community agents 306, 309, 310 international judicial function 307 reluctance 298–305 ATS litigation 298–9 democratic deficit 303 persuasive authority 304, 305 universal civil jurisdiction 299–301 self-executing treaty provisions 315–22 direct applicability 316–18, 320–21 general rules of international law 317, 322 one-size-fits-all approach 315 judicial self-restraint 240, 294 judicial supremacy 251–5 Germany 251–2 India 252–3 South Africa 254 US 254–5 Juvenile Justice Act 115 Kyoto Protocol 10–11, 34–41 legislative implementation see translation lex posterior principle 285 Lindau Agreement 47–52, 57, 329 Lisbon Treaty 152 Lok Sabha 41–2, 64, 66, 82, 115, 116, 118, 122, 263, 275, 280, 281, 288, 303, 329 minimum core approach 207–9 monist approach

Index

direct applicability/self-execution 188–93 foreign relations laws 6 non-self-execution 233–6 multi-partisan endorsement 56–60 National Climate Change Bill 108 Nehru–Noon Agreement (1958) 42 nemo tenetur se ipsum accusare principle 131 non-justiciability 237–55 executive discretion crucial political question 242 Germany 240–42 judicial self-restraint 240 political question doctrine 240–42 South Africa 240–42 foreign affairs in India 238–40 judicial supremacy 251–5 US 243–50 ATS litigation 243–5 climate change litigation limitations 245–9 prudential reasons 243–5 separation of powers 243–50 treaty withdrawal 249–50 non-refoulement principle 109, 147, 197, 206 non-self-executing treaties 6, 224–36, 328–30 dualist approach 233–6 Germany 229–32 judicial attitudes 233–6 monist approach 233–6 US 225–8 North American Free Trade Agreement 250 obiter dictum 135, 144 one-size-fits-all approach 17 Paris Agreement 4, 10, 13, 24, 39–41, 43, 45, 48, 54, 55, 56, 60, 64, 65, 67, 76–8, 85–7, 89, 91–2, 94, 101–3, 107, 108, 112, 113, 119–21, 137, 138, 144, 150, 232, 249, 266, 268, 290, 327–30 parliamentary committees 22, 54, 81, 107

337

parliamentary groups 18, 22, 46, 53, 55, 58–60, 67, 68, 83, 95, 97–9, 280 parliamentary participation 2, 18–20, 24, 42, 44, 83, 93, 249, 256, 259, 260, 264, 266–70, 272–94, 308, 313, 329, 331, 332 Permanent Court of International Justice (PCIJ) 173 Petersberg Agreement (1949) 283 pleas for participation Germany 67–70 India 63–6 South Africa 66–7 US 70–76 polluter-pays principle 196 precautionary principle 151, 196 Prevention of Torture Bill 118, 119 principle of complementarity 10 Promotion of Equality and Prevention of Unfair Discrimination Act 103–4 promotions/promoting 53–83 endorsements 53 Germany multi-partisan endorsement 56–60 oppositions 67–70 pleas for participation 70 ratification pushes 67–70 India 63–6 shared treaty powers 82–3 South Africa Democratic Alliance withdrawal 79–82 inquiries 66–7 International Criminal Court withdrawal 79–82 international treaty regimes 67 party consensus 53–6 US pleas for participation 72 reservations/understandings/ declarations 60–63 supportive ‘sense-of Senate’ resolutions 70–76 treaty withdrawal 76–8 Protection of Human Rights Act (PHRA) 114, 192 Proxmire Act 62

338

Treaties in parliaments and courts

Rajya Sabha 41–2, 66, 82, 116–19, 275, 281, 288, 329 Refugee Convention 147, 180, 197, 206 rejections 204–23 conservative legal movement 217–23 constitutional interpretations 212–17 minimum core approach 207–9 non-bindingness of committee decisions 209–12 scepticism 205–7 Sonderweg case study 217–23 Renewable Energy Sources Act 122 Republican Revolution 27–33 reservations/understandings/declarations (RUDs) 27, 60–63 Rome Statute 9–10, 34–41 scepticism 205–7 self-executing treaty provisions 7, 8, 126, 175, 181–2, 189, 234–5, 315–22 ‘sense of Congress’ resolution 40 ‘sense-of-Senate’ resolution 37, 70–76, 90 shared treaty powers 258–93 actus contrarius argument 287–91 executive power 258–70 dominance 261 foreign policy 261–4, 266 nationalistic parliaments 263 parliamentary impeachment 264 prerogative 258–64 sole executive decision-making 264–70 federative power 258 ICC withdrawal 287–93 legislative power 258 parliamentary consent 271–81 democracy deficit 275 democratic legitimacy 273, 275–8 discursive space 277–81 domestic legal order 280 domestic treaty-making process 271 legislative ratification 272 political community of action 277

parliamentary participation 259, 260, 264, 266–70, 272–93 promotions 82–3 sole executive treaty withdrawal 281–6 Germany 283–6 India 281–2 lex posterior principle 285 US 282–3 South Africa broad incorporation 103–9 comparative studies 3–9 customary international law 194–8 executive discretion 240–42 crucial political question 242 judicial self-restraint 240 political question doctrine 240–42 international law-friendly interpretations 145–55 climate protection 150 comparative human rights jurisprudence 145–8 international institution protection 151–5 pacta sunt servanda principle 154 statutory law 148–51 judicial supremacy 254 minimum core approach 207–9 pleas for participation 66–7 promotions/promoting Democratic Alliance withdrawal 79–82 inquiries 66–7 International Criminal Court withdrawal 79–82 international treaty regimes 67 party consensus 53–6 single-party-dominance 42–4 unanimous consent 53–6 South African Constitutional Court 44, 124, 145, 146, 218, 262, 309, 311, 316 sustainable development 196–8 Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement 270 translation 93–122

Index

broad incorporation 103–9 CAT implementation 109–13 CCAIL 94–103 climate protection laws 94–103 human rights treaties integration 114–19 Treaty of Moscow 179 Treaty of Warsaw 179 unanimous consent Germany 56–60 South Africa 53–6 US 60–63 UN Convention on Corruption 182–3 UN Human Rights Committee 145, 157, 205, 216, 304 UN Human Rights Council 78 United Nations Framework Convention on Climate Change (UNFCCC) 10–14, 59, 61, 64, 67, 75, 78, 87, 99, 111, 119, 143, 144, 151, 196, 232 United States (US) Alien Tort Statute litigation 198–201 comparative studies 3–9 constitutional rejection interpretations 212–17 Eighth Amendment jurisprudence 156–61 international law-friendly interpretations 156–61 judicial supremacy 254–5 non-justiciability 243–50 ATS litigation 243–5 climate change litigation limitations 245–9 prudential reasons 243–5 separation of powers 243–50 treaty withdrawal 249–50 non-self-execution 225–8 pleas for participation 70–76 promotions/promoting reservations/understandings/ declarations 60–63 supportive ‘sense-of Senate’ resolutions 70–76 treaty withdrawal 76–8 sole executive treaty withdrawal 282–3

339

Sonderweg case study 217–23 unanimous consent 60–63 UN Charter 176–9 vetoing/veto players bipartisan scepticism 34–41 culture wars 27–33 Gingrich/Republican Revolution 27–33 human rights treaties 27–33 Kyoto Protocol 34–41 reservations/understandings/ declarations 27 Rome Statute 34–41 Senate rejection 25–7 Universal Declaration of Human Rights (UDHR) 66, 165 US Supreme Court 123, 125, 128, 218, 254, 282, 309, 311, 317 Versailles Treaty 25, 189, 263, 318 vetoing/veto players 25–52 Germany 44–51 Bundestag support 44–7 Länder interference with treaty-making 47–51 India 41–2 South Africa 42–4 US 25–41 bipartisan scepticism 34–41 culture wars 27–33 Gingrich/Republican Revolution 27–33 human rights treaties 27–33 Kyoto Protocol 34–41 reservations/understandings/ declarations 27 Rome Statute 34–41 Senate rejection 25–7 Vienna Convention on Consular Relations (VCCR) 135, 178, 180, 227, 319 Vienna Convention on the Law of Treaties (VCLT) 154 withdrawal policies Democratic Alliance 79–82 ICC 79–82, 287–93 in US 76–8, 249–50

340

Treaties in parliaments and courts

Women Empowerment and Gender Equality Bill 104

Yogyakarta Principles on Human Rights and Sexual Orientation 187, 312