Student Features

I. Introduction*

The United States is currently finalizing the process of negotiating a set of agreements to define the long-term relationship between the United States and Iraq. This process, which began in the fall of 2007, currently envisions both a status of forces agreement and a long-term security arrangement, which the parties have termed the Strategic Framework Agreement. As of August 2008, near final drafts of both agreements had been reached, although neither had been formally approved by the Iraqi government. While recent negotiations have focused primarily on technical details of the status of forces agreement, such as basing arrangements and immunity for contractors, the Strategic Framework Agreement raises serious constitutional concerns. The Bush administration has consistently maintained that no part of the agreements currently under negotiation requires congressional approval. In this, it is mistaken.

The Administration’s position misunderstands both the nature of commitments in international law and the constitutional requirement of legislative participation in such agreements. The absence of an explicitly binding security commitment to Iraq in the proposed agreement does not, as the Administration claims, resolve the issue. Even absent an explicit security commitment, an implicit security commitment can exist as a matter of international law—and, in fact, will exist—if the President proceeds to put in place the security arrangement that is currently under negotiation. International law does not strictly distinguish between formal agreements and tacit agreements, which are understandings arising from conduct that may be equally binding. Nor are the constitutional requirements of Senate advice and consent limited to agreements that are explicitly binding. Tacit commitments have been an area of long-standing concern to the Senate. Those concerns are directly applicable to the proposed agreement with Iraq, which exhibits every one of the factors giving rise to such a commitment.

This article will examine the background and justifications for the Strategic Framework Agreement currently under negotiation. It will then explain why as a matter of international law the mere designation of an agreement as nonbinding is insufficient. Further, it will examine the Senate’s history of constitutional concern with the creation of tacit commitments by the Executive and will compare this concern to the Founders’ understanding of the role of the legislature in the formation of international agreements. Finally, it will conclude that the proposed Strategic Framework Agreement would create a tacit commitment to the security of Iraq and is constitutionally required to be submitted to the Senate as a treaty.

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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

A conservative president, generally hostile to United States participation in international institutions and foreign entanglements, nevertheless expressly requests the Senate to give its advice and consent to a treaty with broad implications for the development of international law. A variety of national business and commercial interests, as well as domestic organizations devoted to global peace and development, also support the ratification of the convention. Scores of former government officials, military leaders, and their cohorts from civil society endorse the treaty. But, in reaction to the claims made by an “elite” foreign policy establishment, Wall Street, and the White House, concerns in the heartland are raised about the U.S. abandoning its sovereignty if it were to join the new international regime. Rhetoric escalates, and even begins to impact the early stages of the next presidential election. Fears of compromising American exceptionalism and surrendering to foreign or international authority pervade the public discourse. What first appeared to be a piece of foreign policy housekeeping – ratification of a treaty fully consistent with the national interest – becomes, instead, a debate for the heart and soul of American foreign policy and a reflection on our place in the world.

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Introduction*

Richard Posner recently reviewed Aharon Barak’s book, The Judge in a Democracy in The New Republic. Posner criticizes Barak for both his theoretical arguments and for what Posner portrays as Barak’s legacy as the president of Israel’s Supreme Court. Posner accuses Barak of acting as “a legal buccaneer,” and describes his approach as “usurpative.” In the title of his review, Posner fashions Barak as no less than an “Enlightened Despot.” In this response, I claim that Posner’s critique lacks a proper understanding of the legal situation in Israel, misrepresents Barak’s activities as a judge, and fails to contend properly with Barak’s judicial philosophy.

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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.

I. INTRODUCTION*

During the escalation of the conflict between Israel and Hezbollah, the U.N. Security Council (“SC”) intervened with Resolution 1701 on August 11, 2006. The ambiguity of this resolution does not appear to provide any help in the debate among political scientists and legal scholars on the highly complex Israeli-Lebanese crisis in understanding the positions of the two parties to the dispute on the basis of norms of international law.

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* This excerpt does not include citations. To read the entire article, including supporting notes, please download the PDF.