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IP: RE: Asked my lawyer about this Treaties
From: David Farber <dave () farber net>
Date: Sat, 23 Jun 2001 04:30:46 -0400
From: "Paul Lembesis" <lembesis () emerson-associates com> To: <farber () cis upenn edu> Subject: Re: RE: Asked my lawyer about this Treaties Date: Fri, 22 Jun 2001 21:37:33 -0400 X-Mailer: Microsoft Outlook Express 5.50.4133.2400 Dave, I've worked on the negotiation and ratification of several treaties (including START and the Chemical Weapons Convention), so perhaps I can help. Treaties are the law of the land. When a treaty obligation is inconsistent with an existing law, a new law must be passed to resolve the conflict. Many treaties have such "implementing legislation." The implementing legislation is an ordinary law, approved by both the House and Senate and signed by the president. Implementing legislation is also passed in many circumstances when there is a domestic obligation created by the treaty (even if there is no pre-existing, contrary law). Thus, an action by a U.S. individual or a corporation that is inconsistent with a treaty would also be inconsistent with a statute. A foreign government could not normally take action to enforce the treaty against an individual or corporation. However, the U.S. Government could take such action. (Whether there are private rights of action depend on how the implementing statute is written.) Its also worth noting that while only the Senate (not the House) votes to consent to ratify a treaty, a two-thirds vote of the Senators present is required. Treaties only apply to a country once they are ratified by that country. For the United States, the president ratifies treaties, but he does so with the "advice and consent" of the Senate. Many multilateral treaties have provisions that the treaty does not take effect for anyone until a certain minimum number of countries ratify it. I have not made up my mind yet about the worthiness of Hague Convention on Jurisdiction. It is worth noting that U.S. federal courts already grant jurisdiction to many claims made in foreign courts. This is one of the major arguments made by U.S. supporters of the Hague Convention. I think this point has an important element of truth in considering the effects that the Convention would have on the U.S., although of course there are counter-arguments. Hope this helps. Feel free to distribute it if you want. Paul Lembesis
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