[quote]Bismark wrote:
I criticized Netanyahu’s failure to provide a viable alternative to any agreement the P5+1 talks may produce. A red herring is a logical fallacy that consists in diverting attention from the real issue by focusing instead on an issue having only a surface relevance to the first. Given Congress’s erroneous “letter” to the Iranian leadership regarding a potential deal, how does the discussion of the legal character of a potential Joint Comprehensive Plan of Action constitute a red herring?
You’re incorrect on more than one count, as I’ve demonstrated via stare decisis. You, like the Congressmen who wrote the letter to Iran, have an erroneous understanding of treaty law and the US Constitution. The Constitution does not define the term treaty, but but has two relevant provisions dealing with treaty practice. Under Article II, Ã???Ã??Ã?§ 2.2, the president has the power with “the advice and consent” of two-thirds of the Senate to make treaties. The president ratifies and proclaims treaties, not the Senate. Article VI, Ã???Ã??Ã?§ 2, declares that “all Treaties 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.” In addition to “treaties”, the president has the power to make other international agreements (1) on the basis of congressional authorization, (2) on the basis of his own foreign relations power, or (3) on the basis of authority contained in an earlier treaty made pursuant to Article II. These agreements are also considered to be federal law, and enjoy legal parity with a “treaty” that has been ratified.
The fact that you write “international law” is indicative that the discipline is terra incognito for you. I’m not going to elaborate on why international law is indeed law, as it goes beyond the scope of this discussion. There are numerous undergraduate texts that do an immeasurably better job of establishing the validity of the field than I ever could. So far, you haven’t cited even one source of international law.
You’ve conflated UN general assembly resolutions with UNSC resolutions. The former are indeed nothing more than recommendations, while the latter are Diktate that absolutely constitute international agreements that impose international obligations. As I’ve demonstrated, It does not matter if domestic legislation abrogates a state from the domestic legal obligations of a “treaty” that has been ratified or a UNSCR that is of equal legal standing; abrogation or countervailing domestic legislation does not relieve a state of its original international obligations. That isn’t an abstract “academic nicety” - which is ironic given you haven’t bothered to cite any real world examples while I have done so numerous times - but a position based upon stare decisis. Pacta sunt servanda is an example of jus cogens - a peremptory norm - that states do not have a choice in being subject to or not. Consent is not required. Customary law has been established by precedent to be undeniably internationally binding, jus cogens even more so.
Such an international agreement, if it required unilateral U.S. sanction relief, would be termed non-self executing, as it would require additional domestic legislation for implementation to take place. If congress is recalcitrant in the face of international obligations, the US will be in material breach of its international obligations, which would be ironic given Iranian compliance under the Geneva interim agreement. US sanctions UNSR the UNSC sanction regime have already been reduced incrementally in accordance with the agreement, which again, is as legally binding as a ratified “treaty”.
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- The reason your long-winded discourse on treaties was a red herring is because treaties - which we don’t have here - are legally (and practically) different from other forms of international agreements. There is no question they are binding, which makes sense, since they are constitutionally recognized and have run the legislative gamut to become law.
Other agreements - like the one at issue currently - is not a treaty, and so it doesn’t behave like one under the law, and it doesn’t have the undisputed binding force of one. So, since it ain’t a treaty, and the rules of a treaty aren’t helpful in understanding whether the proposed executive agreement is binding.
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I use intentional scare quotes around “international law” not because of my lack of familiarity with the topic, but rather to highlight the fact that in many ways isn’t law at all. For all the hopes and dreams of the academic international law crowd, when big, powerful countries rumble on these issues, international “law” is only persuasive, and without any real enforcement mechanism.
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Other, non-treaty international agreements may be binding or not. Point is, they are not automatically so. And there is a serious question under U.S. law whether a president can negotiate reduction of Congressional sanctions in the face of existing Congressional sanctions. Such a scenario is subject to a Youngstown Sheet (Steel Seizure case) analysis to determine whether the president had the power to undertake such negotiations in the first place. And like Youngstown Sheet, the president simply invoking his Article 2 authority isn’t enough to carry the day - he still cannot usurp Congress’s authority to set policy through enactment of statutes. In other words, when Congress has spoken on an issue that involves international relations, the president likely doesn’t have the unilateral power to conduct an end-around Congress through executive agreements. And SCOTUS won’t be bashful about reaffirming that principle…see Medellin v. Texas, as I noted above.
If such a thing happens, and someone decries the decision as violating “international law”, it won’t matter, just as it didn’t matter in Medellin.
- As a practical matter, and as a sovereign one, the international community can’t make Congress pass a bill, and the UNSC wouldn’t dream of attempting to appear to trying to do so. The idea that, on this issue, there will be resolutions passed and an attempt to say “the international community has created an obligation, and domestic legislature, you must pass a bill ratifying this policy or you will be in material breach of this obligation” is laughable, for many reasons, not the least of which is that which one of the voting countries wants to establish that kind of “precedent” that will apply to their own legislatures or parliaments?
The UNSC is not going to issue such a command through a resolution. Not if it cherishes its relevance.
- FWIW, Article 46 allows countries to invoke internal law to invalidate consent even to something aa indisputably binding as a treaty it if violates a provision of the internal law regarding competence to conclude treaties. It certainly follows that a major arms agreement - historically almost always a treaty ratified by the Senate - that directly involves the reduction of sanctions levied by statute enacted by Congress certainly allows invocation of this exception. This arms deal implicates traditional Senate prerogatives as well as basic Congressional authority to set policy. Internal law? Fundamentally important to how the United States concludes treaties? Yep.
And again, that is for treaties. For agreements made of lesser stuff, the exception makes even more sense.
As such, the idea that the UNSC is going to try to strongarm Congress - knowing full well about how such agreements are handled in domestic politics - is silly.
Obama is keen on end-arounds, but no resolution attempt in that will make it past the first draft, I wouldn’t think.