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CecilySweet
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BIG 12 ISSUES
Who has the Power to Negotiate?
POTUS
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BIG 12 ISSUES - Power to Negotiate
who is the sole organ for the communication/negotiation function
POTUS
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BIG 10 ISSUES - Power to Sign/Initial
Who?
POTUS
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BIG 10 ISSUES - what kind of obligation does a signature create
only a minor intl legal obligation, not bound to the entirety of the agreement (until ratification); minimal intl legal obligation = cant take any action which defeats the purpose/object of the T
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BIG 10 ISSUES - Power to Approve - WHO?
Senate and House
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What are the 4 methods to approve an IA?
- 1. T w 2/3 S Approval (us Constitution)
- 2. CEA - submit to both houses of Congress - simple majority of both
- 3. PEA - do not need to submit it to congress, sole or inherent EA;
- 4. Treaty authorized
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BIG 10 ISSUES - if congress has pre-approved the agreement when can the Pres enter into it
any time
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BIG 10 ISSUES - most agreements require
approval by congress
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Jackson Categories / Rehnquist Spectrum w minor adaptation
- 1. P + C (express)
- 2. P (C dont know for sure)
- 3. P without C (express or implied)
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Any agreement upholding as valid in other ranges of the spectrum or other categories (not CEA and not T)
PEA
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Order of frequency of usage of IAs
CEA (2) > T authorized (4) > PEA (3) > T (1)
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BIG 10 ISSUES - Sesame St. & are interchangeable - which IA is not w the other 2
CEA and T; PEA alone
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BIG 10 ISSUES - Power to Ratify - WHO?
POTUS
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Ratification =
final consent to be bound, brings the agreement into existence
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Power to Ratify granted to POTUS by
commerce clause and necessary and proper clause
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BIG 10 ISSUES - Otherwise Valid
- Highly unlikely in Intl Agreements;
- is the bill of rights violated?
Any other things? another T? the US Constitution?
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Power to Implement BIG 10 ISSUES - Who?
Congress and/or POTUS
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Only have to worry about the power to implement when:
- 1. IA/T is NSE;
- AND
- 2. Current US law is inconsistent w the IA
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BIG 10 ISSUES - Power to Implement
If current inconsistent law, Congress can implement by ..... OR
Exec branch can implement by...
- 1. passing a law that would agree with the T;
- 2. regulation, proclamation, or exec order (Run POTUS action through JC/RS)
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BIG 10 ISSUES - What kind of system of implementation does US have
hybrid
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what is a monist system
all Ts = SE
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what is a dualist system?
No Ts = SE
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BIG 10 ISSUES - SE v. NSE - Who?
US Political Branch's intent controls the system
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SE =
comes into effect RIGHT AWAY - automatic legal effect
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Where can you find intent for SE v. NSE
- Modernly - domestic documents surrounding the IA often indicate clear intent:
- -Presidential Transmittal Letter
- -Resolution of Consent - Senate often adds RUDS
- -In the language of the T itself
- -Post-Ratification Understanding (i.e. reciprocity)
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What are RUDS? (often included in S Resolution of Consent)
Reservations, Understandings, Declarations
-Deal w the relation b/n the agreement and the US legal system - often contain intent
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Undertake indicates
further action required
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alternative enforcement mechanisms indicate
further action required (i.e. NSE)
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Reciprocity =
are other nations giving it direct effect?
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BIG 10 ISSUES - PRA - Who?
US Political Brach Intent controls the system
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PRA if T = SE?
presumption against it unless expressly indicates otherwise
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Can you use T indirectly to help influence your position against a statute if T=NSE?
yes
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If P, in order to use T must prove
T = SE and PRA
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If ∆, need to show that T =
SE; no need to show T = PRA
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Charming Betsy
doctrine - long established by SCOTUS - US Cts seek to construe statutes consistent w US intl obligations whether they flow from T (SE or NSE) or customary intl law when "fairly possible"
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Hierarchy of Norms: SE treaty v. US Statute
CB then Later-in-time rule
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Hierarchy of norms: T v. State law
T always
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Power to terminate - who
POTUS
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what is the last step to get US into an obligation
ratification
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Power to administer (interpret, vote in IO, Amend)
Interpret = domestically - ct; internationally - pres;
Vote - Exec branch;
Amend - treat it like a new treaty obligation; ask if its the type of thing the Pres could do alone or does he need approval from congress
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When interpreting, what does ct do w exec branch views
gives great weight to them bc exec branch is forming the Ts and negotiating them; they have greater knowledge of what T means; they are dealing w intl partners on how to interpret the T
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US v. Curtiss-Wright
weapons manufacturer; Prs have power to make executive order pursuant to a joint resolution of Congress? Held: yes. pres has authority to conduct foreign affairs. President is sole organ for negotiating
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Triggering Condition US v. Curtiss-Wright
If pres finds x, then he may do y; i.e. if the pres thinks it will reduce hostility, then he can prohibit the sale of arms
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Congress can paint with a wide brush when ...
US v. Curtiss-Wright
delegating power int he foreign affairs realm
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is pres the sole organ in foreign policy making?
no, it is shared w congress; but, pres does have substantial powers in the realm (short Constitution, lots of grey area)
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Doctrine of enumerated powers
- Foreign Relations Powers of the fed govt do flow from the Constitution (and are subject
- to the doctrine of enumerated powers)
- Doctrine of Enumerated Powers:
- list of items found in Art. 1, §8 of the US Constitution that set forth
- authoritative capacity of Congress
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Opinio juris
sense of legal obligation
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Customary state law =
uniform state practice + sense of legal obligation (opinio juris)
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