Restoring Separation of Powers In Foreign Affairs

2 St. John's Jrnl of Int'l & Comparative L. 1 (2012)

Fordham Law Legal Studies Research Paper No. 3182733

10 Pages Posted: 21 May 2018

Date Written: 2012


This essay addresses the issue of how separation of powers relates to the domestic enforcement of international human rights standards in the face of opposition from the President. Specifically, I consider the role of the judiciary in defending international human rights standards when the Executive branch invokes its ostensible foreign relations expertise against them.

Nowhere has such conflict arisen more sharply than in the cases arising from the attacks of 9/11. Three scenarios have stood out. First, the President and Supreme Court have joined issue over statutes implicating human rights commitments. Notable in this regard is Justice Souter’s concurrence in Hamdi v. Rumsfeld, in which he bolstered his reading of the Non-Detention Act with reference to Article 5 of the Third Geneva Convention. Second, the judiciary has challenged the executive more directly on issues of treaty interpretation. In Hamdan v. Rumsfeld, Justice Stevens’ majority opinion summarily rejected the Bush administration’s idiosyncratic argument that “unlawful enemy combatants” were not entitled to the protections of the same treaties’ Common Article 3. Lastly, the Court has refused to set aside constitutional principles at the executive’s behest in the name of national security. Not least, in Hamdi v. Rumsfeld, the Court rejected the President’s arguments for a restrictive reading of Guantanamo detainees’ Constitutional Due Process rights. Though here the parallel international standards operated offstage in U.S. reports, they did make a significant appearance in amicus briefs. No less important, the Court refused to consider only Article II’s national security concerns at the expense of the Fifth Amendment.

In short, the Court has stood up to the President to “say what the law is” even in foreign affairs areas that directly or indirectly implicate international human rights. However, any note of triumph, at least for advocates of human rights and judicial independence, would be premature. For one thing, the Court’s rulings rarely made any difference to the actual litigants. The 9/11 decisions could have gone further by referencing international standards more forcefully. More importantly, the decisions reflected a conflicted Court. The rulings themselves were closely split, and the Court’s dicta emphasized deference to the Executive branch when the law implicates foreign relations concerns.

My contention is that to be faithful to the concept of separation of powers as it is implemented by the United States Constitution – and more generally applied by most governments around the world – domestic courts that are properly seized of applicable international human rights standards or that have the option to interpret the law with reference to these standards, should do so with zero deference to the views of the Executive branch. This approach expands upon a long-standing project I have been undertaking that aims one day to appear as a book.

Given this focus, I do not discuss several issues. Although I advocate for the United States to sign onto and ratify human rights treaties, I do not discuss these policy-making decisions here. Nor do I address the problem of reservations, understandings and declarations that curtail the applicability of those human rights norms, which I predictably oppose in most instances. With regard to both points, I am proud to channel the late, great Louis Henkin.

Suggested Citation

Flaherty, Martin S., Restoring Separation of Powers In Foreign Affairs (2012). 2 St. John's Jrnl of Int'l & Comparative L. 1 (2012), Fordham Law Legal Studies Research Paper No. 3182733, Available at SSRN:

Martin S. Flaherty (Contact Author)

Fordham Law School ( email )

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