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The Arizona Memory Project was launched in March 2006 and has been
granted the Arizona Centennial 2012 legacy project designation by
the Arizona Historical Advisory Commission. The Arizona Memory
Project provides access to the wealth of primary sources in Arizona
libraries, archives, museums and other cultural institutions.
This report provides an introduction to the roles that
international law and agreements play in the United States.
International law is derived from two primary sources-international
agreements and customary practice. Under the U.S. legal system,
international agreements can be entered into by means of a treaty
or an executive agreement. The Constitution allocates primary
responsibility for entering into such agreements to the executive
branch, but Congress also plays an essential role. First, in order
for a treaty (but not an executive agreement) to become binding
upon the United States, the Senate must provide its advice and
consent to treaty ratification by a two-thirds majority. Secondly,
Congress may authorize congressional-executive agreements. Thirdly,
many treaties and executive agreements are not self-executing,
meaning that implementing legislation is required to provide U.S.
bodies with the domestic legal authority necessary to enforce and
comply with an international agreement's provisions. The status of
an international agreement within the United States depends on a
variety of factors. Self-executing treaties have a status equal to
federal statute, superior to U.S. state law, and inferior to the
Constitution. Depending upon the nature of executive agreements,
they may or may not have a status equal to federal statute. In any
case, self-executing executive agreements have a status that is
superior to U.S. state law and inferior to the Constitution.
Treaties or executive agreements that are not self-executing have
been understood by the courts to have limited status domestically;
rather, the legislation or regulations implementing these
agreements are controlling. The effects of the second source of
international law, customary international practice, upon the
United States are more ambiguous and controversial. While there is
some Supreme Court jurisprudence finding that customary
international law is part of U.S. law, U.S. statutes that conflict
with customary rules remain controlling. Customary international
law is perhaps most clearly recognized under U.S. law via the Alien
Tort Statute (ATS), which establishes federal court jurisdiction
over tort claims brought by aliens for violations of "the law of
nations." Recently, there has been some controversy concerning
references made by U.S. courts to foreign laws or jurisprudence
when interpreting domestic statutes or constitutional requirements.
Historically, U.S. courts have on occasion looked to foreign
jurisprudence for persuasive value, particularly when the
interpretation of an international agreement is at issue, but
foreign jurisprudence never appears to have been treated as
binding. Though U.S. courts will likely continue to refer to
foreign jurisprudence, where, when, and how significantly they will
rely upon it is difficult to predict.
The United States is a party to numerous security agreements with
other nations. The topics covered, along with the significance of
the obligations imposed upon agreement parties, may vary. Some
international security agreements entered by the United States,
such as those obliging parties to come to the defense of another in
the event of an attack, involve substantial commitments and have
traditionally been entered as treaties, ratified with the advice
and consent of the Senate. Other agreements dealing with more
technical matters, such as military basing rights or the
application of a host country's laws to U.S. forces stationed
within, are entered more routinely and usually take a form other
than treaty (i.e., as an executive agreement or a nonlegal
political commitment). Occasionally, the substance and form of a
proposed security agreement may become a source of dispute between
Congress and the executive branch. In late 2007, the Bush
Administration announced its intention to negotiate a long-term
security agreement with Iraq that would have committed the United
States to provide security assurances to Iraq and maintain a
long-term military presence in that country. This announcement
became a source of congressional interest, in part because of
statements by Administration officials that such an agreement would
not be submitted to the legislative branch for approval.
Congressional concern dissipated when U.S.-Iraq negotiations
culminated in an agreement that did not contain a long-term
security commitment by the United States, but instead called for
the withdrawal of U.S. forces from Iraq by December 31, 2011. On
May 2, 2012, President Barack Obama and President Hamid Karzai
signed the Enduring Strategic Partnership Agreement Between the
United States of America and the Islamic Republic of Afghanistan.
Under the terms of the Agreement, the parties pledge to work
cooperatively in a number of fields, including to promote shared
democratic values, advance long-term security, reinforce regional
security, advance social and economic development, and strengthen
Afghan institutions and governance. Additionally, the Agreement
provides that the United States and Afghanistan shall initiate
negotiations on a Bilateral Security Agreement (with the goal of
concluding such an agreement within a year), which is intended to
replace the existing agreement relating to the status of military
and civilian personnel currently in Afghanistan. It is likely that
future disputes will arise between the political branches regarding
the entering or implementation of international security
agreements. Regardless of the form a security arrangement may take,
Congress has several tools to exercise oversight regarding the
negotiation, form, conclusion, and implementation of the agreement
by the United States. This report begins by providing a general
background on the types of international agreements that are
binding upon the United States, as well as considerations affecting
whether they take the form of a treaty or an executive agreement.
Next, the report discusses historical precedents as to the role
that security agreements have taken, with specific attention paid
to past agreements entered with Afghanistan, Germany, Japan, South
Korea, the Philippines, and Iraq. The report discusses the
oversight role that Congress exercises with respect to entering and
implementing international agreements involving the United States.
Congress has repeatedly shown interest in examining and expanding
the barriers being deployed along the U.S. international land
border. The 109th Congress passed a number of laws affecting these
barriers, and oversight of these laws and of the construction
process may be of interest to the 110th Congress. The United States
Border Patrol (USBP) deploys fencing, which aims to impede the
illegal entry of individuals, and vehicle barriers, which aim to
impede the illegal entry of vehicles (but not individuals) along
the border. The USBP first began erecting barriers in 1990 to deter
illegal entries and drug smuggling in its San Diego sector. The
ensuing 14 mile-long San Diego "primary fence" formed part of the
USBP's "Prevention Through Deterrence" strategy, which called for
reducing unauthorised migration by placing agents and resources
directly on the border along population centres in order to deter
would-be migrants from entering the country. In 1996, Congress
passed the Illegal Immigration Reform and Immigrant Responsibility
Act which, among other things, explicitly gave the Attorney General
(now the Secretary of the Department of Homeland Security) broad
authority to construct barriers along the border and authorised the
construction of a secondary layer of fencing to buttress the
completed 14 mile primary fence. Construction of the secondary
fence stalled due to environmental concerns raised by the
California Coastal Commission. In 2005, Congress passed the REAL ID
Act that authorised the Secretary of the Department of Homeland
Security (DHS) to waive all legal requirements in order to expedite
the construction of border barriers. DHS has announced it will use
this waiver authority to complete the San Diego fence. The Secure
Fence Act of 2006 directed DHS to construct 850 miles of additional
border fencing. This requirement was subsequently modified by the
Consolidated Appropriations Act, 2008 (P.L. 110-161), which was
enacted into law on December 26, 2007. The act requires the
Secretary of Homeland Security to construct fencing along not less
than 700 miles of the south-west border. While the San Diego fence,
combined with an increase in agents and other resources in the
USBP's San Diego sector, has proven effective in reducing the
number of apprehensions made in that sector, there is considerable
evidence that the flow of illegal immigration has adapted to this
enforcement posture and has shifted to the more remote areas of the
Arizona desert. Nationally, the USBP made 1.2 million apprehensions
in 1992 and again in 2004, suggesting that the increased
enforcement in San Diego sector has had little impact on overall
apprehensions. In addition to border fencing, the USBP deploys both
permanent and temporary vehicle barriers to the border. Temporary
vehicle barriers are typically chained together and can be moved to
different locations at the USBP's discretion. Permanent vehicle
barriers are embedded in the ground and are meant to remain in one
location. A number of policy issues concerning border barriers
generally and fencing specifically may be of interest to Congress,
including, but not limited, to their effectiveness, costs versus
benefits, location, design, environmental impact, potential
diplomatic ramifications, and the costs of acquiring the land
needed for construction.
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