tag:blogger.com,1999:blog-31432976.post115576848876335762..comments2023-08-10T07:41:11.827-07:00Comments on Bajillion: International BlahTommaso Sciortinohttp://www.blogger.com/profile/13682166317937996902noreply@blogger.comBlogger9125tag:blogger.com,1999:blog-31432976.post-1155823344837881152006-08-17T07:02:00.000-07:002006-08-17T07:02:00.000-07:00Ok, yeah. That's what I thought you were saying or...Ok, yeah. That's what I thought you were saying originally.<BR/><BR/>What's the deal with executive agreements? How are they enforecable? I mean, what's to stop congress from passing a law that hurts those migratory french birds?Tommaso Sciortinohttps://www.blogger.com/profile/13682166317937996902noreply@blogger.comtag:blogger.com,1999:blog-31432976.post-1155797137880367962006-08-16T23:45:00.000-07:002006-08-16T23:45:00.000-07:00Of course Treaties are enforceable... it's right i...Of course Treaties are enforceable... it's right in the Constitution. Although there's a lot of murkiness in there that we should be aware of. What about quasi-Treaty Executive Agreements? Decisions by the WTO/IMF? Rulings by the ICC? These things get very tricky really fast. Lets say that the Prez signs an agreement with France to protect certain migratory birds that nest in the US during the summer. Does he need Congressional authorization? Does it fall under one of his express/implied powers? Questionable.<BR/><BR/>The Breyer/Kennedy stuff that has caused so much comment is not routine treaty enforcement. It's using international norms and legal standards -- even if not applicable to the US -- as evidence of a moral trend that the US should follow. Conservatives have far overblown its importance, but it's worth thinking about.Kevinhttps://www.blogger.com/profile/00772479608447760956noreply@blogger.comtag:blogger.com,1999:blog-31432976.post-1155785956123162392006-08-16T20:39:00.000-07:002006-08-16T20:39:00.000-07:00I interpreted Kevin as meaning that there's an arg...I interpreted Kevin as meaning that there's an argument against using <I>just any</I> international law to settle US Supreme Court cases, and also that liberals should probably be more cautious in their use of the laws of other counties as moral guideposts. I gathered he'd still allow that agreements the US had signed onto were enforceable by the courts.Paulhttps://www.blogger.com/profile/13510253316398518908noreply@blogger.comtag:blogger.com,1999:blog-31432976.post-1155784360840444302006-08-16T20:12:00.000-07:002006-08-16T20:12:00.000-07:00I'm confused. Outside the whitehouse is there any ...I'm confused. Outside the whitehouse is there any real debate over whether duly enacted treaties are enforcable in the supreme court? I thought they were as a matter of course. If Kevin is suggesting the supreme court not do so then I can't agree with that.Tommaso Sciortinohttps://www.blogger.com/profile/13682166317937996902noreply@blogger.comtag:blogger.com,1999:blog-31432976.post-1155780833918195192006-08-16T19:13:00.000-07:002006-08-16T19:13:00.000-07:00Ah, Thinker beat me to some of the points.Ah, Thinker beat me to some of the points.Paulhttps://www.blogger.com/profile/13510253316398518908noreply@blogger.comtag:blogger.com,1999:blog-31432976.post-1155780771005475762006-08-16T19:12:00.000-07:002006-08-16T19:12:00.000-07:00I agree with Kevin about the general mistrust of g...I agree with Kevin about the general mistrust of government and there probalby not being much to gain by ceding authority to one governmental instead of another. I'll second Tom's objection to the undemocratic argument.<BR/><BR/>First, I think it sort of blurs the distinction between decentralization and democratization. Certainly, international law involves, practically by definition, centralization. There's no necessary correlation with democracy there, though.<BR/><BR/>Second, it seems to me that the President has a democratic mandate, and that the scope of that mandate includes the negotiation of treaties as much as it does to any other Presidential duty. So I'd say that such negotiations are less democratic than they would be if we put the negotiations and proposals on a national ballot, but they're not obviously less democratic than anything else the President does.Paulhttps://www.blogger.com/profile/13510253316398518908noreply@blogger.comtag:blogger.com,1999:blog-31432976.post-1155780161489246842006-08-16T19:02:00.000-07:002006-08-16T19:02:00.000-07:00Tommaso, all I was attempting to say was that for ...Tommaso, all I was attempting to say was that for treaties into which we have entered (negotiated by the Executive and ratified by the Senate), the Constitution obligates all levels of Government to treat them as equal in force to statue and Constitution. Clearly treaties which have not been ratified do not count.<BR/><BR/>In its recent Hamdan decision, the Supreme Court of the US recognized again that the US was obligated to abide by International Law that we have ratified, in this case the Geneva Conventions.<BR/><BR/>I responded to take issue with Kevin's statement:<BR/><BR/><EM>Clearly there’s an argument against using it in American jurisprudence.. as Justices Kennedy and Breyer have hinted at doing. But even there, it’s mostly just being used as a helpful moral reference point to ponder.. and all American common law is taken wholesale from the English, after all. </EM><BR/><BR/>My point was that according to the Constitution, in cases where we have ratified international treaty obligations, there can be no argument "against using it in American jurisprudence". The Constitution (Article VI) requires us to do so in crystal clear language.<BR/><BR/>By the way, we do not live under a democracy. We live in a representative federal republic. Kevin's arguments about the loss of sovereignty under and the undemocratic nature of international law sound quite a bit like the arguments made by the Anti-Federalists in the debate over the adoption of the Constitution in 1788. The benefits of the centralized government provided by our constitution are clear when one looks at US history; and, as the world becomes ever more entertwined economically and socially, the benefits of a similar international structure will become evident if we as a species allow it. On the other hand, if we do not, the US experience from 1783-88 under the Articles of Confederation is more relevant.<BR/><BR/>Does this mean that all international law is good? Of course not, no more than all US law or Constitutional amendment is good. However, the structure that allows for such laws to be made is.Billhttps://www.blogger.com/profile/03750127998898485597noreply@blogger.comtag:blogger.com,1999:blog-31432976.post-1155777162782067902006-08-16T18:12:00.000-07:002006-08-16T18:12:00.000-07:00I think you should read Kevin's post again, thinke...I think you should read Kevin's post again, thinker. He's making a normative argument, not a prescriptive one. And even then I don't think he's arguing that we should shun all international law, but rather that we should appreciate the limits of it.<BR/><BR/>Far too many people on both sides of the specturm argue "the UN says" without following it up with "and in this case we should heed them becuase...". Granted, in most cases "and in this case we should heed them becuase it in the constitution" is all the argument we need but in the case of - for example - the ICC the US isn't a signatory and we have no constitutional obligation. So Kevin's argument is very relavant. <BR/><BR/>Personally the procedural argument seems a bit thin to me. The US should enter into treaties that are good and avoid ones which are bad. Also, we should keep in mind that though the undemocratic nature of these treaties prevent them from being too useful, they can do a good job of providing a basic groundwork of order even if it is only to solidify the existing global power structure.Tommaso Sciortinohttps://www.blogger.com/profile/13682166317937996902noreply@blogger.comtag:blogger.com,1999:blog-31432976.post-1155772896865119012006-08-16T17:01:00.000-07:002006-08-16T17:01:00.000-07:00Kevin, the argument against using international la...Kevin, the argument against using international law in our jurisprudence would appear to violate Article VI of the US Constitution:<BR/><BR/><EM>This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.</EM>Billhttps://www.blogger.com/profile/03750127998898485597noreply@blogger.com