From: tien@well.sf.ca.us (Lee Tien)
Date: Tue, 14 Nov 1995 01:29:00 +0800
To: cypherpunks@toad.com
Subject: Re: Exporting software doesn't mean exporting (was: Re: lp ?)
Message-ID: <199511131617.IAA28561@well.com>
MIME-Version: 1.0
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I realize I'm a little late in this thread, but I'm pretty far behind in my
e-mail.  I oversimplify here, but what's new.

Anyway, all I wanted to say is that treaties are *not* superior to acts of
Congress, as far as I know (they do override state law).  I'm not an
international lawyer, but it was held long ago that a properly ratified
treaty is "equivalent to an act of the legislature."  Foster v. Neilson, 27
U.S. (2 Pet.) 253, 314 (1829) (Marshall, C.J.).  Note also that a treaty is
not necessarily self-executing; if it requires appropriation of funds,
Congress needs to act again.  Whether Congress may decline to implement is
unclear.  

Finally, the Supreme Court has also held that when there is conflict
between an Act of Congress and a treaty, "the last expression of the
sovereign will must control."  The Chinese Exclusion Case, 130 U.S. 581
(1889).  

Treaties may still bind the U.S. internationally, putting the U.S. in
default.  But a U.S. person would not be able to enforce any treaty-based
claim if a later U.S. law conflicts, at least in a U.S. court.  

Lee

P.S.  I'm not aware of telecom treaties that would shield one from ITAR
violations, but would be interested to know of any.  I generally refrain
from public comment on ITAR because we are in litigation, as most of you
know.

Perry wrote:

>"Peter D. Junger" writes:
>> : I understand that you are a lawyer and I'm not, but it is my
>> : understanding that international treaties come in to play on this sort
>> : of thing. For instance, in international shipments, you can transship
>> : items and substances that are illegal to possess in a country through
>> : its ports provided that the materials do not originate or terminate
>> : their shipment in the country and remain sealed in their containers
>> : throughout. It is also my understanding that items like mail and phone
>> : calls that happen to transit a country are not necessarily subject to
>> : that nations laws provided that the nation is not a terminal point for
>> : the mail or call or what have you.
>> 
>> The trouble is that the ITAR's definition of export that is relevant
>> to cryptographic software has nothing to do with exporting in the
>> normal sense, and therefore it has nothing to do with transhipments.
>
>I am starting to have trouble believing you are a lawyer. Are you
>actually telling me that treaties which explicitly indemnify
>transshipment customers against local laws are superceeded by lower
>level laws, in spite of the supremecy clause of the constitution? That
>might be what the state department would tell you, but I'd have
>trouble believing even a lobotomized mongoloid judge would let that
>stand. Treaties are treaties, period.
>
>Perry