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Begin New Search Publishing Institution Center for Global Legal Challenges, Yale Law School Author Saurrabh Sanghvi

1. TACIT AMENDMENTS

Author:
Oona A. Hathaway, Haley Nix, Saurrabh Sanghvi, and Sara Solow
Publication Date:
11-2011
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
As a general rule, the President is “‘without authority, except by and with the advice and consent of the Senate, to modify a treaty provision.’”2 Thus, in amending a treaty, parties effectively sign and ratify a new treaty, to which the standard treaty processes apply. However, numerous treaties have established procedures for modifications to the regime that do not rise to the level of formal amendments to the treaty. This report focuses on such “unratified treaty amendments”—which include what are called “tacit amendments.” Unratified amendments are amendments to treaties that are made without formal Senate ratification.3 They have proven a useful tool in creating robust treaty regimes in a changing world. Just as the use of executive agreements in general has expanded rapidly in the past century,4 treaty regimes increasingly have adopted amendment processes that do not require a full ratification process. And just as executive agreements have raised questions about Senate prerogatives, so too have unratified amendments. There are two primary ways that the U.S. government modifies underlying treaties through an unratified amendment5 —first, through the use of executive agreements; and, second, through the use of tacit amendments. Part I describes how each process works. It argues that both pass constitutional muster so long as the Senate has provided its clear advice and consent to the use of such processes (although not necessarily to the substance of the modifications) in the first instance. Part II outlines and evaluates the various ways in which the Senate has responded to attempts to modify treaties by executive agreement or by tacit amendment in the past. It concludes that the Senate’s requirements of prior notice and its focus on technical provisions, while not always easy to achieve in practice, are sensible ways to maintain Senate prerogatives. Part III concludes.
Topic:
Foreign Policy, Treaties and Agreements, Domestic politics, and Federalism
Political Geography:
North America and United States of America

2. Lessons from the Past for Foreign Sovereign Immunity After Samantar v. Yousuf

Author:
Saurrabh Sanghvi
Publication Date:
11-2011
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
In Samantar v. Yousuf,2 the Supreme Court held that an individual sued personally for acts taken as a foreign official did not enjoy any immunity under the Foreign Sovereign Immunities Act of 1976 (FSIA), a statute governing when courts should provide foreign states with sovereign immunity.3 After Samantar, immunity in any individual official suit will likely be determined through reference to the pre-FSIA federal common law. This report outlines the pre-FSIA practices4 of the U.S. Department of State (“State Department”) and the courts to provide insight into how individual official suits may be handled in the wake of Samantar.5 If courts follow historical practice, they will likely rely heavily on State Department “suggestions of immunity” in determining whether immunity will be granted to individuals for actions taken as foreign officials. Moreover, when the Department is silent, the courts will likely interpret State Department policy to determine whether immunity is appropriate.
Topic:
Foreign Policy, Law, Legal Theory, and Immunity
Political Geography:
North America and United States of America

3. Arms Trafficking: The International and Domestic Legal Framework

Author:
Oona A. Hathaway, Elizabeth Nielsen, Chelsea Purvis, Saurrabh Sanghvi, and Sara Solow
Publication Date:
11-2011
Content Type:
Working Paper
Institution:
Center for Global Legal Challenges, Yale Law School
Abstract:
The conventional arms trade,2 both legal and illegal, is vast in scope. As of 2001, there were an estimated half billion documented small arms in the world, more than one for every twelve people.3 International arms sales are a booming business, and the United States is the world’s largest exporter. In 2008, worldwide arms transfer agreements reached a value of $55.2 billion, of which 76.4% involved developing nations.4 The United States accounted for $37.8 billion, or 68.4%, of these worldwide arms transfer agreements,5 and U.S. activity falls into five categories: foreign military sales agreements between foreign governments and the Department of Defense, direct commercial sales to foreign buyers negotiated by U.S. companies, leases of military equipment by U.S. entities, excess defense materials, and emergency decreases of weapons stockpiles.6 An extensive legal regime has emerged at the international and domestic levels to regulate conventional arms trafficking. This report aims to provide an overview of that framework. It surveys existing international arms trafficking agreements and provides an analytic framework for distinguishing between them. It also surveys the domestic legal framework regarding arms trafficking. Together, these overviews provide a starting point for identifying the shortcomings of existing law, identifying gaps in the legal framework as it currently operates, and considering options to begin to address these shortcomings. This report begins in Part I by briefly outlining the scope of the problem of conventional arms trafficking. It then turns in Part II to identifying three fundamental axes on which international arms trafficking agreements differ. First, each agreement targets one or more points in a conventional arms life cycle: it targets the point of production; the point of domestic ownership and transfer; or the point of interstate transfer. Second, agreements differ in the scope of weapons they cover—they may target different classes of weapons (such as major conventional weapons, small arms and light weapons, and dual-use technologies) and different legal categories of weapons (for example, some cover both legal and illicit weapons, while others only focus on illicit weapons). Third, agreements differ in terms of their enforceability: some are legally binding while others set nonbinding goals. Part III of the report examines the ways in which the United States regulates arms trafficking through its domestic laws and international agreements. It shows that the United States places strong controls on interstate transfers of arms, but it has a more mixed record when it comes to regulating earlier stages of the arms life cycle. While U.S. law places a number of marking and recordkeeping requirements on arms producers and sellers, domestic ownership laws are lax compared to those of other countries. Part IV shows that there are three major gaps in extant arms trafficking agreements. First, the international agreements that are the most enforceable either fail to target arms trafficking at multiple points in the life cycle or fail to cover a broad scope of weapons. Second, arms trafficking agreements do not adequately regulate the illicit resale of arms in the black market after they are produced and sold for the first time legally. This is because there is no binding and enforceable agreement that requires states to track all domestic weapons transfers, from their initial sale to the final sale before their export. Finally, major arms suppliers, such as the United States, are not party to several major arms trafficking agreements. To address these shortcomings, this report offers three options available to U.S. policymakers for strengthening arms trafficking laws. First, the United States could increase multilateral engagement by ratifying the leading regional arms trafficking agreement, Inter-American Convention Against Illicit Manufacturing of and Trafficking in Firearms, Ammunitions, Explosives, and Other Related Materials (CIFTA). Doing so would likely require no changes in U.S. domestic law but would strengthen the U.S. ability to coordinate its arms control efforts with other countries while encouraging other countries to more effectively address arms trafficking. Second, the United States could increase bilateral programmatic assistance to address arms trafficking—at the very least by taking arms trafficking into account in existing assistance programs. Finally, the United States could engage more actively in leading negotiations over a robust and comprehensive arms trade treaty. Such an agreement would ideally aim to bring the international legal standards developed in CIFTA to the global stage. In leading the way toward such a comprehensive treaty, the United States could encourage universal adoption of the high standards the United States already has in place to ensure that arms are not transferred for illegitimate purposes—purposes that may directly affect U.S. security interests.
Topic:
International Trade and Finance, Arms Trade, Trafficking, Legal Theory, and Illegal Trade
Political Geography:
Global Focus

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