IP - Shaffer

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  1. BIG 12 ISSUES
    Who has the Power to Negotiate?
  2. BIG 12 ISSUES - Power to Negotiate

    who is the sole organ for the communication/negotiation function
  3. BIG 10 ISSUES - Power to Sign/Initial

  4. 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
  5. BIG 10 ISSUES - Power to Approve - WHO?
    Senate and House
  6. 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
  7. BIG 10 ISSUES - if congress has pre-approved the agreement when can the Pres enter into it
    any time
  8. BIG 10 ISSUES - most agreements require
    approval by congress
  9. 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)
  10.       = P + C(e)
  11.        = P + 2/3 S
  12. Any agreement upholding as valid in other ranges of the spectrum or other categories (not CEA and not T)
  13. Order of frequency of usage of IAs
    CEA (2) > T authorized (4) > PEA (3) > T (1)
  14. BIG 10 ISSUES - Sesame St.      &      are interchangeable - which IA is not w the other 2
    CEA and T; PEA alone
  15. BIG 10 ISSUES - Power to Ratify - WHO?
  16. Ratification =
    final consent to be bound, brings the agreement into existence
  17. Power to Ratify granted to POTUS by
    commerce clause and necessary and proper clause
  18. BIG 10 ISSUES - Otherwise Valid
    • Highly unlikely in Intl Agreements; 
    • is the bill of rights violated?

    Any other things? another T? the US Constitution?
  19. Power to Implement BIG 10 ISSUES - Who?
    Congress and/or POTUS
  20. 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
  21. 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)
  22. BIG 10 ISSUES - What kind of system of implementation does US have
  23. what is a monist system
    all Ts = SE
  24. what is a dualist system?
    No Ts = SE
  25. BIG 10 ISSUES - SE v. NSE - Who?
    US Political Branch's intent controls the system
  26. SE =
    comes into effect RIGHT AWAY - automatic legal effect
  27. 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)
  28. 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
  29. Undertake indicates
    further action required
  30. alternative enforcement mechanisms indicate
    further action required (i.e. NSE)
  31. Reciprocity =
    are other nations giving it direct effect?
  32. BIG 10 ISSUES - PRA - Who?
    US Political Brach Intent controls the system
  33. PRA if T = SE?
    presumption against it unless expressly indicates otherwise
  34. Can you use T indirectly to help influence your position against a statute if T=NSE?
  35. If P, in order to use T must prove
    T = SE and PRA
  36. If ∆, need to show that T =
    SE; no need to show T = PRA
  37. 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"
  38. Hierarchy of Norms: SE treaty v. US Statute
    CB then Later-in-time rule
  39. Hierarchy of norms: T v. State law
    T always
  40. Power to terminate - who
  41. what is the last step to get US into an obligation
  42. 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
  43. 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
  44. 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
  45. 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
  46. Congress can paint with a wide brush when ...

    US v. Curtiss-Wright
    delegating power int he foreign affairs realm
  47. 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)
  48. 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
  49. Opinio juris
    sense of legal obligation
  50. Customary state law =
    uniform state practice + sense of legal obligation (opinio juris)
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IP - Shaffer
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