Franck (974) – everyone agrees there must be some limits to SC power, cannot be left to SC to interpret
Court might be last-resort defender of system’s legitimacy
Jose Alvarez (975-76) – Don’t think this is comparable to domestic system, to Marbury Lots of ways that Court can subtly delegitimize SC actions
Put out principles w/o confronting – some form of judicial review
Not endorsed by SC, but couldn’t happen w/o their approval
Kady – European mid-level appellate court – said SC resolution under Chapter VII can’t violate jus cogens norm
In relation to actions taken in fight on terrorism – had to adopt broad norm of right to property.
Upon appeal – stepped back. Not judging SC. Look to national level measures adopted, make sure they conform.
Canon of interpretation? – apply strong presumption in looking at its decisions that it didn’t intend to violate HR
US Courts – focus on enacting national legislation, ignore SC
UK House of Lords – Article 103 - state itself cannot be held responsible for any human rights violations that follow from doing what SC requires
ECHR – almost totally deferential to SC
Session 7 – International Law in the Domestic Arena Within state, who has authority to make treaties, and under what circumstances?
Three issues: Separation of Powers (exec v. leg), federalism, court supervision of US conduct in foreign affairs
US international agreements
Article II treaties – made by P with A&C of 2/3 f S
Arms control and human rights agreements – always treaties
Congressional-executive agreements – either w/ authorization or subsequent approval of majority of C.
Greatly increased over time – particularly ECONOMIC agreements.
Always hard to get 2/3 (time consuming, large use of political capita) – now, with rise in int’l community/participation, need to enter into some sort of agreements
More PRAGMATIC and PRACTICAL
Debates about validity
May 1945 – House approved const amend that would provide for treaty approval by majority vote.