Implied powers

Abstract: The United States is party to several treaties that regulate the conduct of war, including the 1949 Geneva Conventions on the Protection of War Victims. These treaties require belligerent states, as a matter of international law, to accord fair and humane treatment to enemy nationals subject to their authority in time of war. Moreover, these treaties are, as a matter of domestic law, part of the Supreme Law of the Land. The scope and content of the Conventions have assumed central importance in debates about U.S. policy toward al Qaeda and Taliban detainees held at Guantanamo Bay, Cuba. Indeed, several aspects of U.S. policy toward the detainees arguably violate the Conventions. In response, the Bush Administration maintains in effect that the Conventions, even if they are applicable and even if U.S. policy is inconsistent with them, are not binding on the President as a matter of domestic law because the President has the constitutional authority to choose to violate the Conventions in the interest of protecting national security. This Article evaluates the Bush Administration's claim. The Administration's position has certain non-trivial virtues. Even if the United States has no legal right to violate the treaties as a matter of international law, there are good reasons to recognize an implied power to violate (or supersede) treaties as a matter of domestic law. The central question is who should have this authority: the President or Congress. We consider in detail three variations of the Administration's position - read in its best light. The President's power to violate treaties might stem from (1) the President's law-making authority; (2) the President's law-breaking authority; or (3) the President's unfettered discretion to interpret U.S. treaty obligations. Following detailed consideration of each variation, we conclude that the President has no authority to violate a treaty obligation if Congress has the authority under Article I to enact legislation superseding that treaty obligation. Because the rules embodied in the Geneva Conventions address matters within the scope of Congress' Article I powers, the President lacks the constitutional power (absent congressional authorization) to violate these treaties. Building on this claim, we also argue that the President never has the unilateral authority to violate treaties because the existence of international rules empowers Congress to regulate matters governed by the treaty, even if those matters would otherwise be subject to the President's exclusive power. Finally, we suggest that there is some meaningful role for courts to play in enforcing treaty obligations - irrespective of whether the President's interpretation of any given treaty is entitled to substantial deference. In short, we conclude that the President is bound by the Geneva Conventions - as a formal legal matter and as a practical matter.

Abstract: This article examines the question whether it is within the Security Council's powers to adopt resolutions which authorize member states to use force. This question has gained importance since the end of the Cold War as such authorization resolutions have become the primary instrument through which the Security Council has acted in situations where the use of military force is considered necessary. The provisional conclusion is drawn that it is an implied power of the Council to adopt such resolutions. However, it is also argued that both the Charter system and principles of delegation reject carte blanche delegations and favour authorizations which respect the authority and responsibility of the Security Council in the United Nations collective security system. Before reaching final conclusions, the author examines the views of the member states and the practice of the Security Council. Member states find the model of authorization resolutions as such generally acceptable, although some states have expressed a concern for greater UN control. In its practice, the Council has to a considerable extent responded to this concern. Three specific aspects are discussed: the mandate and the duration of authorized operations, and reporting requirements. There is a clear tendency towards greater control by the Security Council in relation to all three of these aspects.

Abstract: The focus of this article is to examine, in the light of the evolution of UN peace maintenance, the justification and validity of non-Security Council authorized military interventions, such as that of NATO in Kosovo, based on claims to unilateral enforcement of UN resolutions and objectives. The function of resolutions of the Security Council authorizing military force is inter alia that of 'precluding wrongfulness'. The article examines justification of unauthorized unilateral action on the basis of implied authorizations, implied powers doctrine, legitimization ex post facto and emerging norms on the humanitarian intervention, and concludes that in the absence of express Council authorization, this remains an act of usurpation of Council powers and a resort to force prohibited under international law. Ultimately, the debate does not revolve around a choice between protection of human rights on the one hand and state sovereignty on the other, but over the means utilized. Far from assuming a static view of the international legal system, the choice of collectively authorized over unilateral measures is an attempt to escape regression to unilateral decisions involving community interests. Moreover, the insistence on strengthening multilateral institutions, such as the UN, by addressing current concerns, far from representing a last-ditch nostalgic return to Wilsonian and liberal idealism stems from the need to protect the diversity of cultures and claims.