Evolving intersections between treaty law and domestic law.

Position:International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion
 
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This panel was convened at 1:00 p.m., Thursday, March 25, 2010, by its moderator, Avril Haines of the U.S. Department of State, who introduced the panelists: Johanna Bond of Washington and Lee School of Law; Andrew Keller of the U.S. Senate Foreign Relations Committee; Stephen Rickard of the Open Society Policy Center; and Mallory Stewart of the U.S. Department of State. *

* Johanna Bond and Stephen Rickard did not submit remarks for the Proceedings.

FROM COUNTERTERRORISM TO CLIMATE CHANGE: ARE TREATIES NECESSARY TO SOLVE INTERNATIONAL PROBLEMS?

By Andrew N. Keller [dagger]

INTRODUCTION

In determining whether a treaty-based approach is the best way to address a problem requiring international cooperation, one must ask two preliminary questions: is a treaty achievable, and is it necessary? A response to the first question will often depend on whether there is sufficient political will to conclude a treaty. Answering the second requires an assessment of what type of international cooperation is sought and how the treaty or non-treaty-based alternative would intersect domestic law and procedures. An examination of the international legal frameworks for counterterrorism and climate change reveals that both questions may be answered in the affirmative for counterterrorism. In the case of climate change, however, the 2009 Copenhagen Summit demonstrated that a new climate treaty is not currently achievable and, from a legal perspective, may not be immediately necessary.

COUNTERTERRORISM

Achievability

Virtually all countries are willing to condemn terrorism and undertake certain international obligations to combat it (although the degree of implementation of those obligations varies widely). As a result, treaties have become primary components of the legal framework for counterterrorism.

There are thirteen international counterterrorism treaties currently in force. (1) These treaties cover a broad range of terrorist offenses, including aircraft hijacking and sabotage, maritime terrorism, and terrorist financing.

The treaties largely adopt a "top-down" approach, meaning that they impose obligations on states parties that affect and may require changes to domestic laws and procedures. Most of them have common characteristics, which include the following: they define specific acts as offenses for purposes of the particular treaty. For example, Article 1 of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation provides that any person commits an offense if he "unlawfully and intentionally ... destroys an aircraft in service or causes damage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety in flight." (2)

The treaties then require states parties to establish the relevant acts as offenses for purposes of domestic law and to recognize certain mandatory bases of jurisdiction over the offenses. Consistent with efforts to eliminate safe havens for terrorists, the treaties obligate a state party in which an alleged offender is located to establish jurisdiction and either extradite the offender or submit the case to its competent authorities for prosecution ("extradite or prosecute"). Finally, most of the treaties provide that the agreed-upon offenses are deemed to be included as extraditable offenses in any preexisting bilateral extradition treaty between states parties. (3)

Necessity

Eliminating safe havens for terrorists has and will continue to be an essential policy goal. International law enforcement and judicial cooperation are critical to these efforts and depend, to a certain extent, on legal consistency across domestic jurisdictions: All parties must agree that specifically defined acts constitute terrorist offenses and must have the domestic legal basis to extradite or prosecute for such offenses.

A top-down, treaty-based approach is necessary to enable this type of cooperation. For example, extradition generally requires "dual criminality," meaning that an act for which extradition is sought must be punishable in both the state requesting extradition and the state from which extradition is sought. (4) Achieving a level of uniformity across multiple jurisdictions sufficient to ensure dual criminality would be exceedingly difficult absent a common international obligation to establish specific acts as offenses under domestic law.

Similarly, a treaty-based approach is necessary to ensure that preexisting bilateral extradition treaties cover the relevant terrorist offenses, especially given that some countries extradite only pursuant to a bilateral treaty obligation. Many older extradition treaties include lists of specific crimes that represent the universe of extraditable offenses for purposes of the particular treaty. (5) Coverage of newer offenses, such as nuclear terrorism, under list treaties may be questionable. Accordingly, as noted above, most of the international counterterrorism treaties mandate that offenses set out in those treaties be deemed to be extraditable offenses under all preexisting extradition treaties.

For all practical purposes, this requirement, which has the effect of amending preexisting bilateral treaties, must be treaty-based. Absent a multilateral treaty-based obligation, multiple bilateral negotiations would be required, yet they may never occur. Further, each amendment would be subject to the relevant states' domestic processes for ratification. (In the United States, for example, the executive branch would have to seek Senate advice and consent to ratification for each bilateral extradition treaty that it seeks to amend.) An ad hoc approach would, under the best of circumstances, be a lengthy and labor-intensive process, and there would be no guarantee that it would result in the amendment of all treaties that required such action.

CLIMATE

Achievability

There is widespread agreement among states that climate change must be addressed at the international level. The United Nations Framework Convention on Climate Change (UNFCCC), (6) to which there are 194 parties, (7) embodies this agreement and sets the objective of stabilizing greenhouse gas (GHG) concentrations in the atmosphere at a level that would prevent dangerous interference with the climate system. (8) Even so, the international community has not yet been able to agree on a treaty-based approach that will achieve the generally accepted goal of...

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