tag:blogger.com,1999:blog-14162253.post115273733289947206..comments2024-03-28T18:57:15.124-06:00Comments on Wash Park Prophet: Geneva Convention Myths and Facts.Andrew Oh-Willekehttp://www.blogger.com/profile/02537151821869153861noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-14162253.post-1152890206821524112006-07-14T09:16:00.000-06:002006-07-14T09:16:00.000-06:00Good guess, just the wrong answer.A statute passed...Good guess, just the wrong answer.<BR/><BR/>A statute passed this year may amend or abolish one passed last year, a more recent statute may modify or even replace an older treaty. In 1903 the Court explicitly proclaimed that a statute may abrogate a treaty with an Indian tribe, Lone Wolf v. Hitchcock, 187 U.S. 553. <BR/><BR/>See for example, <A HREF="http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=DC&navby=case&no=021145A" REL="nofollow">Kappus v. Commissioner</A> (D.C. Cir. 2003):<BR/><BR/>"When a statute conflicts with a treaty, the later of the two enactments prevails over the earlier under the last-in-time rule. The rule and its rationale were articulated by the Supreme Court in Whitney v. Robertson: <BR/>'By the constitution, a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other.... [I]f the two are inconsistent, the one last in date will control the other.... If the country with which the treaty is made is dissatisfied with the action of the legislative department, it may present its complaint to the executive head of the government, and take other measures as it may deem essential for the protection of its interests.... The duty of the courts is to construe and give effect to the latest expression of the sovereign will.' <BR/><BR/>124 U.S. at 194-95 (emphasis added); see Breard v. Greene, 523 U.S. 371, 376 (1998) ("[A]n Act of Congress ... is on a full parity with a treaty, and ... when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null." (internal quotation marks omitted)). The question for us, therefore, is which of the two the Treaty or the statute is the "latest expression of the sovereign will." Whitney, 124 U.S. at 195."<BR/><BR/>The U.S. rule stated above is a decidedly minority position in international law. Most nations do not allow domestic statutes to violate treaties.Andrew Oh-Willekehttps://www.blogger.com/profile/02537151821869153861noreply@blogger.comtag:blogger.com,1999:blog-14162253.post-1152787553958561612006-07-13T04:45:00.000-06:002006-07-13T04:45:00.000-06:00Andrew, I don't have anything about the process fo...Andrew, I don't have anything about the process for renunciation of treaties at hand. Even after plowing through the State Department website for hours on end, I haven't come up with anything. So I assumed that it would follow the same process as ratification.<BR/><BR/>Apparently I assumed wrong.<BR/><BR/>Care to send me the information on it? I assume it is something you got ahold of via law school, for I haven't heard anything about it in undergrad classes.Off Colfaxhttps://www.blogger.com/profile/07159732830654414173noreply@blogger.comtag:blogger.com,1999:blog-14162253.post-1152758136854866892006-07-12T20:35:00.000-06:002006-07-12T20:35:00.000-06:00You're not quite on the ball, Off Colfax. The adv...You're not quite on the ball, Off Colfax. The advice and consent power to treaties is in the U.S. Senate, not the Congress as a whole, and it doesn't come into play here. Under United States law, a treaty can always be abrogated by an ordinary statute which Congress intends to override a treaty, regardless of what the treaty provides or relevant international law.<BR/><BR/>Strictly speaking, of course, this isn't overturning the U.S. Supreme Court decision, it is simply changing the law which it previously interpreted. But, it could, for instance, ditch both the pertinent parts of the Uniform Code of Military Justice and declare that the entire Geneva Conventions or any part thereof, no longer apply to the United States, with a simple majority the House, a simple majority in the Senate (plus overcoming any filibusters) and the President's signature. But, it would be politically unpopular to do so (slightly).Andrew Oh-Willekehttps://www.blogger.com/profile/02537151821869153861noreply@blogger.comtag:blogger.com,1999:blog-14162253.post-1152755030719154812006-07-12T19:43:00.000-06:002006-07-12T19:43:00.000-06:00Suicide-by-Gas Eyed in NYC Building Explosion, Col...<A HREF="http://www.foxnews.com/story/0,2933,202761,00.html" REL="nofollow"> Suicide-by-Gas Eyed in NYC Building Explosion, Collapse</A><BR/><BR/>THIS....QUITE SOMETHINGAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-14162253.post-1152753309238509002006-07-12T19:15:00.000-06:002006-07-12T19:15:00.000-06:00Correction to Myth 10, Andrew. Congress as a whole...Correction to Myth 10, Andrew. Congress as a whole cannot enact a statute to overturn the Court's ruling. The Senate, on the other hand, can bring Common Article 3 for a specific up-or-down vote using their power of "advise and consent" over international treaties.<BR/><BR/>Of course, this has two problems associated with it. First, would it actually be possible to remove our assignation to that specific Common Article without a full disassociation fron the Conventions as a whole? And second, would they even be able to get the necessary votes to pass such a deratification of the Conventions, even in part?<BR/><BR/>I think that the Conventions are safe. At least during an election year. But someone out there better watch the amendments next year, just in case something like this slips in while the bills are in conference committee.Off Colfaxhttps://www.blogger.com/profile/07159732830654414173noreply@blogger.com