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I am not even through this whole thread yet and I am disgusted!:help:
Some how It's the US's fault he got in?
Why the heck are many of you blaming the victim? Don't attack the victim, attack the criminal.....oh wait its the usa it must be our fault:no:
I will post more later.:furious3:
Utterly fascinating. If I have some time, I will try to get my hands on a book about international legal jurisdiction next week. :book:Quote:
Well, I think its interesting.
Soulforged, yes the most outlandish hypothetical cases are imaginable. And so far, we've only been discussing criminal law. In private law, impossible to disentangle constructions involving half a dozen or so countries with conflicting laws are even more common. Often, actively sought out. All the more reason for more international harmonization of law between countries.
Yes. There's a lot of treaties signed between nations, not to talk about EU (that I see as a great step forward dispite what everyone thinks), to make the job easier. Human right treaties, economic treaties and comercial treaties, and treaties about treaties. Now the problem is that almost every country takes a nationalistic stance before this events and they try always, in some way, to give their Constitution, and therefore some inferior laws, a greater importance than the treaties. But as far as jurisdiction goes there's always an undifined dispute.Quote:
Originally Posted by Louis VI the Fat
:skull: Soul I about keeled over when I read that post....Lets put this as an example (but lets not go to OT) Say the UN makes a treaty banning small arms from private citizens (in which case it's time to get ready for the blue helmet invasion!) But our constitution says we can have them. Are you saying that we should give them up? That makes no sense at ALL! Just because: insert a bunch of countries here: wants us to give up what is considered a civil right in our country... you think we should give it up!
(I don’t want to turn this into a gun thread; Iam using this example because the UN is actually trying to do this)
Then your executive power shouldn't sign it... simple.~;)Quote:
Originally Posted by ceasar010
Anyway, I find it pretty hard that things like that will be ever discussed in the UN, the subjects discussed are axiological concepts and foundations of principles. Most of human right treaties, wich are widely applied (economic and comertial treaties don't have the same strenght right now), are written as any constitution, containing various general principles and general procedures, it's up to the states to regulate it into more specific laws or translate them into sentences wich sets a precedent. And all of them are of mutual concent between the nations who are present in the reunion and sign them, if the process of signing and ratifying a treaty is more democratic in your country then it's the responsability of adults to not let their representatives sign treaties that they don't like. Violating them will carry responsability from the state, but only economic in the ultimate case (never an invasion!!!).
EDIT to add: If the case comes and your state signs it, then you'll have to get rid of your guns. But notice that in the international treaties the parts are not the people inhabiting a territory, but the ideal person of the State, so such a treaty as the one you're imagining will be formally impossible right now.
Our president doesn't have the right to sign a law taking away our constitutional rights, yet you expect us to believe he has the power to sign a treaty doing so? I think not.Quote:
Originally Posted by Soulforged
Anyone trying to convince Americans foriegn laws or treaties supercede the US constitution will be in for a hard sell. And I believe that is bi-partisan.
Yes he can... following some dogmatic, following other, more conservative, he cannot. But again that will never happen through an international treaty, because it concerns state policy only. Now, I don't know how the process is regulated there, but here the process of ratification (wich means an official obligation of an state towards the international community for the concret treaty) involves both: the executive and the congress, so it's not an unilateral decision of the executive, I suppose that in the USA is almost the same.Quote:
Originally Posted by Joker85
Yes I know. Argentina has had the same problem again and again at jurisprudential and legislative level...let's just say "nationalism". Let me ask you something, let's suppose that your Constitution not only doesn't protects the right to a second trial, but it forbids it as well. Then a treaty is signed (the question of how obligated your state is to not contradict its princeples is already decided, violation always carries responsability), an human rights treaty that gives all people the right to a double instance. Will you be reluctant to see your Constitution superceded in that case? Or did I misunderstand your point?Quote:
Anyone trying to convince Americans foriegn laws or treaties supercede the US constitution will be in for a hard sell. And I believe that is bi-partisan.
Caesar/joker, I think all soulforged was trying to say is that for an interbnational treaty to have legal effect in your country your country's government have to have assented to it. So if there was an international treaty for the banning of private ownership of firearms, before ceasar can fizz at the mouth about blue helmet commies taking his handguns the US government would have to sign the treaty.Quote:
Our president doesn't have the right to sign a law taking away our constitutional rights, yet you expect us to believe he has the power to sign a treaty doing so? I think not.
Anyone trying to convince Americans foriegn laws or treaties supercede the US constitution will be in for a hard sell. And I believe that is bi-partisan.
The question of whether the treaty would have legal effect if it was in fact signed, but if the US governmentdid not have authority under the constitution to sign it, might or might not be an interesting one. If the answer was the same as in UK domestic administrative law the answer would be no. I can imagine policy reasons in public international law why the answer might be different (eg that other states ought not to be put in the embarrassing position of enquiory of a fellow government whether their domestic law gives them power to act as they are.)
Finally, as US law is based on the most excellent UK common law system, I believe you will have a dualist approach to international treaties, which is to say, your domestic courts would not give them legal effect until they have been passed into some peice of domestic legislation. That is the UK position, anyway, but we'd need a US lawyer to confirm it.
(The alternative is a system in which domestic courts will consider international treaties directly, which is the case in, eg, the Netherlands)
I believe you are correct - the government confirms the treaty through the ratification process where the Senate approves the treaty, which would then force the House and the Senate to make legislation to carry out the aspects of the treaty that apply to the domestic laws.Quote:
Originally Posted by English assassin
However one must remember in the United States Treaties can never supercede the constitution.
Or at least that is my understanding to the process
That seems likely. Even in the UK, famously without a codified constitution, the rule is, if there is ambiguity in a law, the courts will assume Parliament intended them to favour the approach that is in accordance with international obligations, but if all tenable interpretations of the law are contrary to international obligations, well, so much the worse for the international obligations.Quote:
However one must remember in the United States Treaties can never supercede the constitution.
Or at least that is my understanding to the process
As you have a written constitution and a set procedure for amending it is seems it must be right that international treaties can't "amend" it (unless, of course, you passed an amendment)
That's with almost every nation that I know. My Constitution has an special prescription in wich some treaties, only human right treaties, receive constitutional level, but always completing the first part of the Constitution, so the treaties cannot be interpreted in a contradiction with the first part.Quote:
Originally Posted by Redleg
Anyway, this isn't so simple. The article 27 of the Vienna Convention on the Law of Treaties, states: "A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
This rule is without prejudice to article 46."
A part is every state wich signed the treaty.
Many times has Argentina invoked such provisions and as many we got punished, at least our state. I think that in reality we might see the needle turn a little into international relationships favor.
Treaties can not contradict the United States Constitution as the treaty applies to the United States. If the treaty contradicts the Constitution it can not be ratified.Quote:
Originally Posted by Soulforged
Without the treaty meeting the ratification process of the signature nations - the treaty in null. It happened with several treaties the United States has signed. SALT II being one of them. Absolutely no punishment comes about.Quote:
Anyway, this isn't so simple. The article 27 of the Vienna Convention on the Law of Treaties, states: "A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
Another case in point is the Koyoto treaty.
You're just playing formal. In reality procedures are often superceded over and over again. The interesting situation should be when your state ratifies some human rights treaty, as the treaty doesn't apply to a particular territory or state.Quote:
Originally Posted by Redleg
That's true. However I think the US signed that treaty right? Some doctrine considers that by signing it, and following the principle of good faith (again could lose sense in the translation), the State is already obliged to apply its content, leaving aside all internal excuses, such as provisions. Now this is very complex, and I think that every state will use their best weapons to fight in one sense or the other. One thing is sure though, if ratified there's no doubt about the responsabilities of the state.Quote:
Without the treaty meeting the ratification process of the signature nations - the treaty in null. It happened with several treaties the United States has signed. SALT II being one of them. Absolutely no punishment comes about.
I thought you have to show reasonable intent to secure a site for someone to tresspass it.
For instance if you have a large ranch bordered by another ranch and there is no discernable border then you can walk onto the neighbouring ranch without tresspassing as no visible border or signage is available to show you otherwise.
Actually I am not. Without ratification a treaty is non-binding.Quote:
Originally Posted by Soulforged
No Red. That's just one theory. Now, this isn't a factual theory because laws work over the foundations of the dogma, so it can change as human mentality changes and absolutes truths are fought. To tell you the truth I prefer the second theory, once signed you're obliged. There's something sure though, following interpretation and sentences of the international courts, including our own interamerican court, and it's that once signed you cannot contradict the objective of the content of the treaty, not necessarily actively apply it, but don't contradict it either with your decisions. As I said the subject is pretty complex and worth for a whole new thread.Quote:
Originally Posted by Redleg
In stating I am wrong - you have shown your lack of knowledge of the United States Constitution once again. Without Ratification any treaty entered is not binding.Quote:
Originally Posted by Soulforged
Read Article II of the Constitution
Quote:
Originally Posted by selected Text speaking of Presidential Powers
So no Soulforged its not theory it is actual constitutional law.
It can not change until it follows the ammendment process to the United States Constitution as it relates to the United States.Quote:
Now, this isn't a factual theory because laws work over the foundations of the dogma, so it can change as human mentality changes and absolutes truths are fought.
I perfer the Constitutional LawQuote:
To tell you the truth I prefer the second theory, once signed you're obliged.
If the treaty is not ratified it is not binding. Again Case in point is SALT II.Quote:
There's something sure though, following interpretation and sentences of the international courts, including our own interamerican court, and it's that once signed you cannot contradict the objective of the content of the treaty, not necessarily actively apply it, but don't contradict it either with your decisions. As I said the subject is pretty complex and worth for a whole new thread.
Part 2
Contray to some peoples opinion the United States is not ruled by a dictorship - its governed by three branches of government and is a democratic republic. Treaties can not be entered into unless it follows the constitutional process. If the President does not follow the constitutional process as it relates to a treaty - ie the senate does not ratifiy it, the Supreme Court has no choice but to rule the treaty un-constitutional - which in essence negates the treaty.
I like your attempt at using the word theory - it however does not negate your failure to consider the constitution as it relates to the discussion we are having.
Ufff...This is so tedious. Not everything revolves around your Constitution. The theory I'm talking about considers signed treaties to be above the national Constitution of every country.Quote:
Originally Posted by Redleg
Mmmm...No, is a theory, since laws are always interpreted. Some consider the Constitution to be the supreme law, some others consider the international treaties to be in that space.Quote:
So no Soulforged its not theory it is actual constitutional law.
You don't know of what you're talking about...Quote:
It can not change until it follows the ammendment process to the United States Constitution as it relates to the United States.
Suit yourself...Quote:
I perfer the Constitutional Law
Read what I said again (what the hell is "SALT II"???), never said it binds, I said that the state that signs it should not contradict it's purpose, that's by the principle of good faith.Quote:
If the treaty is not ratified it is not binding. Again Case in point is SALT II.
:shrug: Are we on the same channel?:inquisitive:Quote:
Contray to some peoples opinion the United States is not ruled by a dictorship - its governed by three branches of government and is a democratic republic. Treaties can not be entered into unless it follows the constitutional process. If the President does not follow the constitutional process as it relates to a treaty - ie the senate does not ratifiy it, the Supreme Court has no choice but to rule the treaty un-constitutional - which in essence negates the treaty.
What discussion Red? Try to change the channel, seriously I think that I'm seeing another movie right now. Laws work over theories, at least the part called science. What I stated is that there's a dogmatic interpretation that puts treaties over the Constitution, you might not like it, but again I'm not saying that your interpretation is wrong, I just don't like it.Quote:
I like your attempt at using the word theory - it however does not negate your failure to consider the constitution as it relates to the discussion we are having.
The discussion you entered into centered around the Constitution. If you did not wish to imply nor discuss the United States Constitution in this particlur issue then you should of paid attention to the topic thread and the discussion. The tedious nature is on you.Quote:
Originally Posted by Soulforged
That theory is not law - and would be defeated by every nation.
Since I am discussing the law as it applies to this discussion, treaties and in particlur the United States Constitution - the onus was on you to state initially that you were not having the same discussion as I - when you attempt to call my statement wrong.
Again it is you that is incorrect - the discussion is about law - not theory. Theory only applies when your discussing possiblities. When one discussions actuality in this instance one is discussing law.Quote:
Mmmm...No, is a theory, since laws are always interpreted. Some consider the Constitution to be the supreme law, some others consider the international treaties to be in that space.
Actually I do - it is you who entered into the discussion with a theory - when my discourse is centered upon the stated law and the United States Constitution. It seems your only losing yourself in your own arguement.Quote:
You don't know of what you're talking about...
Constitutional Law is better then some half-baked theory that removes the people from the equation.Quote:
Suit yourself...
Binding is the same as not contradict its purpose. If a treaty is not ratified it has no binding agreement that must be meet. SALT II is easy to discover - try typing it into a google search engine. In short its the failed to be ratified Nuclear disarment treaty between the United States and the now defunt Soviet Union.Quote:
Read what I said again (what the hell is "SALT II"???), never said it binds, I said that the state that signs it should not contradict it's purpose, that's by the principle of good faith.
You never entered into the correct discussion.Quote:
:shrug: Are we on the same channel?:inquisitive:
Then try not saying I am incorrect when your not discussing the law.Quote:
What discussion Red? Try to change the channel, seriously I think that I'm seeing another movie right now. Laws work over theories, at least the part called science. What I stated is that there's a dogmatic interpretation that puts treaties over the Constitution, you might not like it, but again I'm not saying that your interpretation is wrong, I just don't like it.
I don't think so Red. I was on a discussion about hipotetical cases. Louis posted a comment and I answered, not in reference to that post, but in general about treaties. Then someone asked me about what will happen in the USA as it stands now. I said that I didn't know much about the laws in USA but that I could asnwer him with a simple response. Then later you entered...Mmmm how come that I was the one who entered?Quote:
Originally Posted by Redleg
Never said that. The theories are applied generally in two cases: when you make a new law or when you make an arguement to support a legal stance (such as sentences). In the sentences, if founded, you can see the reasons exposed by the judges (because juries do not found), between them you'll find often a theory or two.Quote:
That theory is not law - and would be defeated by every nation.
Again, when I made that comment in answer to your post, wich I think you're refering to, I was talking in general, wich means that it's perfectly appliable to your national system. Is there a law wich forbids that? Yes there's, but there's nothing factual that forbids a desicion of that nature, nor new legislation being passed. You could also consider that the international organisms could have a different view on the subject and punish you anyway, rare, but it can happen.Quote:
Since I am discussing the law as it applies to this discussion, treaties and in particlur the United States Constitution - the onus was on you to state initially that you were not having the same discussion as I - when you attempt to call my statement wrong.
Again you don't know of what you're talking about.Quote:
Again it is you that is incorrect - the discussion is about law - not theory. Theory only applies when your discussing possiblities. When one discussions actuality in this instance one is discussing law.
In fact I didn't want to generate a discussion. I made a comment stating that there's different theories, all of a sudden you took it as a disagreement with your stance. But you don't know of what you're talking about either...Quote:
Actually I do - it is you who entered into the discussion with a theory - when my discourse is centered upon the stated law and the United States Constitution. It seems your only losing yourself in your own arguement.
How does it removes the "people" from the equation?Quote:
Constitutional Law is better then some half-baked theory that removes the people from the equation.
Oh SALT II is a treaty? Sorry I thought it was something else... Again Red, if your state is binded to a treaty it implies a lot more of things. For starters if only signed, the international court has no business in your jurisdiction, second you've no obligation of passing any legislation or juridic or executive resolution of any kind to make the treaty effective. Or perhaps you're using binding in some other sense... Anyway my explanation works with two concepts that have different consequences, signature and ratification. Signature, by itself, is considered sufficient to create respect for the signed treaty, ratification, involves an obligation with the international commutinity to make the treaty effective by positive action.Quote:
Binding is the same as not contradict its purpose. If a treaty is not ratified it has no binding agreement that must be meet. SALT II is easy to discover - try typing it into a google search engine. In short its the failed to be ratified Nuclear disarment treaty between the United States and the now defunt Soviet Union.
Just to remember, let's see my initial post:The comment is generalized. The situation on the international enviorament is the same for all states.Quote:
That's with almost every nation that I know. My Constitution has an special prescription in wich some treaties, only human right treaties, receive constitutional level, but always completing the first part of the Constitution, so the treaties cannot be interpreted in a contradiction with the first part.
Anyway, this isn't so simple. The article 27 of the Vienna Convention on the Law of Treaties, states: "A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
This rule is without prejudice to article 46."
A part is every state wich signed the treaty.
Many times has Argentina invoked such provisions and as many we got punished, at least our state. I think that in reality we might see the needle turn a little into international relationships favor.
Enter as a figure of speech - notice that you do agree with I stated in that sentence.Quote:
Originally Posted by Soulforged
Judges make rulings on law - not on theory.Quote:
Never said that. The theories are applied generally in two cases: when you make a new law or when you make an arguement to support a legal stance (such as sentences). In the sentences, if founded, you can see the reasons exposed by the judges (because juries do not found), between them you'll find often a theory or two.
Again you were incorrect in stating I was wrong. Look at what you just stated and what I have stated. If its not current law it must follow the constitutional process to become law. International law only applies to treaties. If a treaty is not ratified international law has no presedence in regards to areas covered by that particuler treaty.Quote:
Again, when I made that comment in answer to your post, wich I think you're refering to, I was talking in general, wich means that it's perfectly appliable to your national system. Is there a law wich forbids that? Yes there's, but there's nothing factual that forbids a desicion of that nature, nor new legislation being passed. You could also consider that the international organisms could have a different view on the subject and punish you anyway, rare, but it can happen.
Same could be said of yourself. Maybe you should stop before you attempt to make it something it is notQuote:
Again you don't know of what you're talking about.
Then you souldn't of entered into the discussion if your did not want to discuss. Your theory is incorrect because it has no application in law. All nations that I know of required that the treaty be ratified by some sort of system. Be it the constitutional stated process of the United States or some other systemQuote:
In fact I didn't want to generate a discussion. I made a comment stating that there's different theories, all of a sudden you took it as a disagreement with your stance. But you don't know of what you're talking about either...
How does it removes the "people" from the equation?
You might want to check out the definition of retification. Ratification is done by nations to accept the signed treaty......Your point is becoming more and more mote when your not applying the know definitions. Signature and ratification are part of the same process - without one the other is not binding.Quote:
Oh SALT II is a treaty? Sorry I thought it was something else... Again Red, if your state is binded to a treaty it implies a lot more of things. For starters if only signed, the international court has no business in your jurisdiction, second you've no obligation of passing any legislation or juridic or executive resolution of any kind to make the treaty effective. Or perhaps you're using binding in some other sense... Anyway my explanation works with two concepts that have different consequences, signature and ratification. Signature, by itself, is considered sufficient to create respect for the signed treaty, ratification, involves an obligation with the international commutinity to make the treaty effective by positive action.
Not at all - each state has its own law to determine what and how treaties will be accepted and ratified by that state. You only pointed out how one state deals with the issue. The point that you are missing is that my arguement show how your generalization is not completely correct nor do most nations follow such a method.Quote:
Just to remember, let's see my initial post:The comment is generalized. The situation on the international enviorament is the same for all states.