Chapter 7 - The Domestic Effect of International Law

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Chapter 7 - The Domestic Effect of International
Law
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What Makes a Treaty?

• (1) the states intend the agreement to be legally
  binding under international law
• (2) the agreement deals with significant matters
  
• (3) it clearly describes the obligations of the
  parties and
• (4) it takes a form consistent with the intent
  that it be legally binding.

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Enforcing Treaties

• What is the international law significance of a
  treaty?
• What happens if a country does not honor a
  treaty?
• How are international trade rules enforced?
• Is there an international law enforcement system
  for other treaties?
• What mechanisms can be used, short of war, for
  multilateral treaties such as the those deal with
  atomic energy?
• What is going on with Iran in this regard?
• India?

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Judicial Enforcement of Treaties

• The treaty must provide the court with sufficient
  detail to allow the court to determine whether
  the enforcement action taken by the executive is
  supported
• The intelligible principle from adlaw
• Private enforcement is determined by the same
  standards as private enforcement of statutes

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Self-Executing Treaties

• Presidential enforcement requires less detail in
  treaties because the courts will defer to
  executive interpretation of the treaty
• Like Chevron
• Most treaties do not contain enough specific
  detail to allow private enforcement
• This requires Congress to pass legislation to
  enable the treaty
• Treaties with enough detail on their face for
  enforcement are called self-executing treaties
• Can treaties raise taxes? Other limits?

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Senate Ratification

• What is the legal effect of ratification?
• What does advice and consent mean?
• Was the senate meant to participate in drafting
  treaties?
• What is the downside to senate participation?
• What if the senate will not ratify without
  changes?
• Does this undermine the president's
  constitutional right to negotiate treaties?
• Fast track - the Senate promises to not mess with
  the treaty, only to vote it up or down.

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How do we decide that a treaty means?

• What did the president want to use to justify
  reinterpreting the ABM treaty?
• What is Biden's complaint?
• How is amending a treaty different from
  terminating it?
• Are the (unratified) amendments legally
  enforceable - assuming any of the treaty is?
• Do the amendments just become executive
  agreements?

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Relevance of Senate Ratification History to
Treaty Interpretation (April 9, 1987) - 159

• What is Biden addressing in this report?
• If these deliberations were intended to be a
  binding part of the treaty, what could the Senate
  do to make them binding?
• Whose representations should count in construing
  a treaty?
• What can the senators do if they believe that a
  provision in the treaty is ambiguous?
• What does this report say should happen if the
  president wants to use secret side deals to
  change the meaning of the treaty?

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The President's Role

• What are the president's dual roles in treaties?
• Negotiates the treaty
• Enforces the treaty
• Why is the enforcement role critical?
• Why is the president's role more important in
  international law?

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What Type of Legal Relationship does a Treaty
Create?

• What type of legal document does this report say
  a treaty is?
• What does this imply about enforcing the rights
  and duties under the treaty?
• Is this really the right legal classification of
  a treaty?
• Biden says the executive or the courts should
• ...give the specific words of the treaty a
  meaning consistent with the shared expectations
  of the contracting parties
• What is the best evidence of the meaning of the
  treaty?

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Abrogating Treaties - Goldwater v. Carter, 617
F.2d 697 (1979)

• Vacated by United States Supreme Court as
  non-justiciable
• What happens if conditions change, say an ally
  goes communist?
• Who evaluates these changes?
• Why not go to the senate to get the treaty
  modified?
• When do modifications amount to abrogating the
  treaty?
• Who has final authority to send in troops when
  there is a mutual defense treaty?

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Koplow's Factors to Evaluate Reinterpretations of
Treaties

• (a) what the Senate said in providing its advice
  and consent
• (b) what was said to the Senate prior to its
  consent
• (c) the attitude of the treaty partner(s) toward
  competing treaty interpretations
• (d) support in the treaty text and record for
  competing interpretations
• (e) the record of subsequent practice by the
  treaty parties
• (f) how different the new interpretation is from
  the old
• (g) whether the new interpretation purports to
  create new obligations or to release old ones
  and
• (h) whether there are changed circumstances that
  affect the treaty.

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Legislative Enabling of the Treaty

• What if Congress has passed legislation to enable
  the treaty?
• Does the president's abrogation of the underlying
  treaty change this legislation?
• How must the legislation be changed?
• While the president might refuse to enforce the
  legislation, will the courts be bound to respect
  this decision as regards private enforcement?
• Does this legislation have any international
  significance?

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Executive and Other Agreements

• Turns out that we sign very few treaties,
  preferring to do everything with executive
  agreements

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Types of Executive agreements

• Congressional-executive agreements
• Congress either approves them or delegates
  approval to the president
• Agreements made pursuant to treaty
• Probably implicitly authorized by the treaty
• Pure executive agreements, such as the Iran
  hostage settlement

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Made in USA Foundation v. US, 242 F3d 1300 (2000)

• This is a fight over what can be the subject of a
  treaty versus an executive agreement
• Does the constitution give any guidance?
• Was the court able to find any bright line?
• What issues arise if the court tries to decide
  this?

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Note 6 - 172 - Case-Zablocki Act Congressional
limits on agreements

• What does the Case-Zablocki Act require?
• What if the president does not comply?
• Does that make the agreements void?
• Has congress successfully limited the president's
  ability to make secret deals?

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Review of congressional limits

• Does making an agreement give the president the
  power to carry it out if congress disagrees?
• What can he do without congressional support?
• How can congress stop enforcement if they do not
  have sufficient votes to override a veto of a
  specific law overruling the agreement?

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Do Treaties supersede the Constitution? - Reid v.
Covert, 354 US 1 (1957)

• What are the facts?
• Were defendants US citizens?
• Where did the crimes take place?
• Why are they being tried by military courts?
• Is the defendant active duty military?
• What constitutional provision do the defendants
  say was violated?
• We will see this issue in the detainee cases

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The Treaty

• What does the treaty provide?
• May treaties override the constitution?
• What did the court say about a subsequent statute
  overriding a treaty?
• Must the statute obey the constitution?
• What did the court decide about trying these
  women in military courts?
• Why can soldiers be tried in military courts?

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Committee of US Citizens living in Nicaragua v.
Reagan, 859 F2d 929 (1988)

• What did the International Court of Justice find?
• What did the US do to avoid this judgment?
• What did Congress do in violation of the
  judgment?
• What are the plaintiffs seeking?

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What is the Domestic Effect of International Law?

• The first issue is whether Congress may override
  a treaty by statute
• Since this is a subsequent statute, it overrides.
• Is this one answer to the question of where the
  constitution provided a way to end treaties?
• What does it imply about the President's views?
• What about its violation of international law?
• Can the US escape the consequences of violating a
  treaty by abrogating the treaty?

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Head Money Cases, 112 U.S. 580 (1884)

• What do treaties depend on for enforcement?
• As the Supreme Court said in the Head Money
  Cases, a treaty depends for the enforcement of
  its provisions on the interest and honor of the
  governments which are parties to it. If these
  fail, its infraction becomes the subject of
  international negotiations and reclamations . . .
  but with all this the judicial courts have
  nothing to do and can give no redress.

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Diggs v. Shultz, 470 F.2d 461 (D.C. Cir. 1972)

• The UN Security Council required an economic
  boycott of Rhodesia
• What does that tell us about the US president's
  position at the time on the resolution?
• Senator Byrd amended a statute to block the
  boycott
• Why an amendment, not a separate law?
• Did the court find that this abrogated our treaty
  obligations?
• Are we still part of the UN?

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Who has Standing in the International Court of
Justice?

• Who can be a party in the International court of
  Justice?
• Could plaintiffs have brought their action in the
  ICJ?
• Why is this a problem with their asserting rights
  under the ICJ judgment in US courts?
• What did the US agree to when it was bound by the
  ICJ?

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5th Amendment Claim Is Rejecting the ICJ
Arbitrary?

• (1) Nicaragua had not itself consented to, and
  therefore could not invoke, ICJ jurisdiction
• (2) the dispute with Nicaragua was one involving
  armed conflict, collective self-defense and
  preservation of regional stability, and thus fell
  outside the ICJs jurisdiction as set forth in
  the U.N. Charter and in the ICJs own precedents
  and
• (3) the United States itself had never consented
  to jurisdiction over this type of conflict since,
  by reservation, it had expressly excluded
  disputes arising under multilateral treaty
  from the scope of its consent.

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Executive Agreements and Statutes - United States
v. Pink, 315 U.S. 203, 230 (1942)

• the Supreme Court declared that a treaty is the
  law of the land, and that international
  compacts and agreements . . . have a similar
  dignity. While the case law suggests that
  congressional-executive agreements and agreements
  made pursuant to treaties have the same legal
  effect as constitutional treaties, it is unclear
  about the effect of sole executive agreements on
  prior statutory or treaty law.
• What does this mean?
• Can an executive agreement override a statute?
• Does it matter whether it is a foreign national
  security matter?

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The Domestic Legal Effect of Customary
International Law and Jus Cogens

• Remember, this is about the domestic enforcement
  of customary international law and jus cogens
• Can a plaintiff get a US court to issue an order
  enforcing these agreements, absent any
  authorization in the form of a statute, i.e., if
  they have not been executed by Congress?
• There may very effective international
  enforcement and still no domestic enforcement