Chapter 1 Introduction What are the issues of the day?
Executive and Other Agreements
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Executive and Other AgreementsTurns out that we sign very few treaties, preferring to do everything with executive agreementsTypes of Executive agreementsCongressional-executive agreementsCongress either approves them or delegates approval to the presidentAgreements made pursuant to treatyProbably implicitly authorized by the treatyPure executive agreements, such as the Iran hostage settlementMade in USA Foundation v. US, 242 F3d 1300 (2000) - 172This is a fight over what can be the subject of a treaty versus an executive agreementDoes the constitution give any guidance?Was the court able to find any bright line?Note 6 - 172 - Case-Zablocki Act: Congressional limits on agreementsWhat 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?Review of congressional limitsDoes making an agreement give the president the power to carry it out if congress disagrees?What can he do without congressional support?Do Treaties supersede the Constitution? - Reid v. Covert, 354 US 1 (1957)What are the facts?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 casesThe TreatyWhat 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?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?What is the Domestic Effect of International Law?The first issue is whether Congress may override a treaty by statuteSince this is a subsequent statute, it overrides.What about its violation of international law?Can the US escape the consequences of violating a treaty by abrogating the treaty?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.’’Does International Law Count?Who can be a party in the International court of Justice?Does this create individual standing in US courts?Self-Executing TreatiesWhat is a self-executing treaty?What are limits on self-executing treaties?What happens when the president abrogates a self-executing treaty?Treaties that Require Congressional ActionMany treaties are really agreements that congress pass laws to accomplish a certain goal.Abrogating the treaty does not repeal these lawsWhat do you have to do to abrogate the effect of these treaties?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?The Domestic Legal Effect of Customary International Law and Jus CogensRemember, this is about the domestic enforcement of customary international law and jus cogensCan 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 effect international enforcement and still no domestic enforcementCommittee of US Citizens living in Nicaragua v. Reagan, 859 F2d 929 (1988)ContinuedThe Paquete Habana, 175 U.S. 677 (1900)In what war did this case arise?What type of vessels were seized?What did the owners cite as law prohibiting the seizures?Did the court find any contrary law?What did it rule?‘‘international law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction.’’Justice Gray's LimitationWhat did Justice Gray say limits this finding?While the courts have not directly considered subsequent statutes overruling international law norms, what have they considered that is analogous?‘‘since violation of a treaty is essentially a violation of the principle of customary international law requiring that treaties be observed.’’Yüklə 0,76 Mb. Dostları ilə paylaş:
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