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

• Author: Corn, Geoffrey S.
• Position: Introduction into III. Self-Execution: Hamdan and Noriega Squared, p. 547-589

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

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

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

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

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

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

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

1. TREATY CODIFICATION OF THE LAWS AND CUSTOMS OF WAR

   1. The Law of Armed Conflict Generally

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

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

   2. Why Treaties Still Matter

      Treaties certainly do not provide the exclusive source of conflict regulation; customary international law, national policy, and other sources of "soft law" all supplement treaty law. However, treaties do and will continue to play a dominant role in this regulatory mosaic. The reasons for this are manifold, but two considerations are especially significant. First, as "law of the land," ratified treaties are and will always be considered obligatory by the U.S. armed forces. This recognition is a...