[quote]thunderbolt23 wrote:
[quote]Bismark wrote:
[quote]Aragorn wrote:
[quote]Bismark wrote:
While the informal term “deal” is used in media coverage of the P5+1 nuclear negotiations, an agreement resulting from them would constitute a binding instrument of international law. This is an understandable but fundmamental error for those whom international law is terra incognito. [/quote]
It’s only binding if the US Congress gives its advice and consent. It may need to be administered through the UN as someone else said here, but the only people who need to give consent are the POTUS and the US Congress, not the P5+1. If one of the aforementioned US branches does not consent, the treaty is null and void.
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This is incorrect. You continue to fail to understand how international law is formulated. If the current negotiation with P5+1 result in a Joint Comprehensive Plan of Action, it will not be a bilateral agreement between Iran and the US, but rather one that will be concluded with the participation of five other countries, including all permanent members of the Security Council, and will also be endorsed by a Security Council resolution. Congress has no authority in regard to the dealings of the UNSC, and has no power to veto any resolutions that body may conclude. Executive agreements do not require the Senate’s final approval. They are binding international obligations made solely by the executive branch. According to international law, Congress may not modify the terms of the agreement at any time as they claim, and if Congress adopts any measure to impede its implementation, it will have committed a material breach of US obligations.The Iran negotiations are not a bilateral arrangement between Iran and the United States, but a P5+1 negotiation with Iran. If a deal is reached, it is a deal that has the support of all the permanent members of the U.N. Security Council plus Germany. Article 25 of the UN Charter states that “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”. UNSC resolutions are binding instruments of international, and consequently, American law.
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Not necessarily. There is some question as to whether a president can negotiate agreements in contravention of statutes enacted by Congress, and therefore cannot create international obligations contrary to those statutes. And the Supreme Court will not hesitate to defy international opinion if that is the case (see Medellin v. Texas).
Complications like this are one reason why UNSC resolutions are worded to request assistance from countries as opposed to orders to do certain things.
And, as a practical matter, even if the UNSC elected to order the US to drop sanctions (with Obama’s agreement), there isn’t a chance in Hell Congress will go along - Republicans or Democrats.[/quote]
My argument is based upon the relationship between international and domestic law, as supported by stare decisis. If you wish to argue that domestic noncompliance with United Nations Security Council Resolutions is legal under international law, you are on very untenable ground. Of the five sources of international law identified by Article 38 of the Statute of the International Court of Justice, all are applicable to my argument. These are 1) international treaties; 2) international custom; 3) the general principles of law recognized by civilized nations; 4) judicial decisions; and 5) the teachings of the most highly qualified publicists.
Treaties and (other international agreements) enjoy parity as federal with statutes enacted by Congress. Thus, if a conflict between the two arises, courts will ordinarily use the rule to deal with conflicts in statute law to resolve the inconsistency. A treaty or statute adopted later will override an earlier inconsistent statute. The problem, of course, comes when a later treaty conflicts with an earlier one; or when an act of congress conflicts with an earlier treaty. As with customary law, the Charming Betsy rule - that is, courts should presume that, as a rule, legislators do not deliver stately intend to violate international law -forms a relevant consideration for the construction of purpose and intent. If the court cannot find a way to resolve the differences, then the treaty, to the extent of the inflict, has no effect. Again, while the statute will in effect as domestic law, the legislation will not relieve the United States of its international obligations and the possibility for any breach of duty. I draw your attention to the reasoning of the District of Columbia Court of Appeals in Diggs v. Schultz (1972).
“We think that there can no blinking the purpose and effect if the Byrd Amendment. It was to detach this country from the U.N. boycott of Southern Rhodesia in blatant disregard of our treaty undertakings.”
Article 27 of the Vienna Convention on the Law of Treaties holds that “a party may not invoke the provisions f its internal law as justification for its failure to perform a treaty.” Though technically not applicable to a congressional abrogation of a potential P5+1 deal because the the aforementioned Vienna Convention has not been ratified by the U.S, the question involves the status of this principle as customary law. Insofar as Article 27 reflects a codification of customary law, the U.S. would not escape the onus of violation. Pacta sunt servanda is an undeniable and unambiguous example of international international customary law. Domestic noncompliance with a UNSCR would be a clear and blatant material breach of American obligations.