GEHRKE, TREATIES AND LIMITS

["Tracy Gonos and Paul Hayes" <tgonos@umich.edu>]

	Once again, I'm going to play the poster boy for cognitive dissonance and
answer only the section of Pat's post which comments on the ways the
treaties topic could be expanded through the use of declarations, judicial
interp and executive interp while assuming that topicality is indeed a
winnable negative strategy and that limits are desirable.   Needless to
say, I believe both of these things but I'm going to leave those issues up
to Josh since Super-Goo's topicality answers have always made me want to go
for case instead of T :)

>>>>>>>>>>>>>>>>>>>>>>> (Pat's arguments are enclosed in these wacky
things)
I think there is tension here between Paul's two acknowledgements. (1) he
recognizes that creative/intelligent debaters can explode any topic, and
simultaneously claims (2) that the treaties topics will limit these same
debaters.
>>>>>>>>>>>>>>>>>>>>>>>>

My position is that there are  degrees of "explosion"  and degrees of
"limits".  Every topic will be stretched, but some will be stretched much
more than others.  Pat says he'll bet Josh that a treaties topic would
allow over a hundred cases to be run over the course of the year.  I'll
contest his reasoning, but would like to point out that even if he's
completely correct in his topic analysis, allowing about a hundred cases is
still a comparitive advantage over business as usual which has rendered a
series of resolutions under which closer to two hundred cases have been
run.  This is especially true, given that of these one hundred cases, many
will be very similar to each other since they are spins on the same treaty
and all affirmative plans will be much more predictable than in the past
since all affirmatives still have to ratify a treaty.

>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
As for the specific issues related to treaty interpretation Paul
discusses...
Take for example when the UN International Covenant on Economic, Social,
and Cultural Rights. India offered an interpretive declaration that article
one (worded "all peoples have the right to self-determination. By virtue of
that right they freely determine their political status...") which claimed
that the right to self-determination only applied to people under foreign
domination and not to soveriegn independent states or sections of a people
or a nation. That's a pretty wild change on what many others thought it
meant. Such an interpretive declaration (which is different in the
literature than a reservation) can effectively revamp the nature of a
treaty or article. (for more, see 84 AJIL 297, American Journal of
International Law, Jan. 1990, p. 297).
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>


	Before I answer, I'd  like to define what I mean by two terms.  The way I
see it, under a treaties topic, affirmatives could claim two types of
advatnages to treaty ratification.  The first is what I'll call a "domestic
advantage".  An example would be, "we ratify the law of the sea which
requires that the US adopt regulations on ocean pollution and thus we solve
for ocean pollution in domestic waters".  A domestic advantage is one
claimed off of unilateral action that is compelled by treaty ratification. 
Obviously, this type of advantage is not very strategic since negatives can
simply counterplan to do only this unilateral action without ratifying the
treaty and solve completely for the advantage while competing off of a
generic disad to treaty ratification.  The second type of advantage could
be called an "international advantage".  For example, " we ratify the LOS
which aids in the establishment of an international norm for regulating
ocean pollution, thus we solve ocean pollution worldwide".  This type of
advantage relies on the unique nature of treaties as international
agreements which obligate nations to pursue international objectives in
tandem.  When claiming such an advantage, the credibility of US
ratification is critical to solvency, ie US ratification has to aid in the
establishment of the international norm or in the credibility of the treaty
or the advantage isn't unique beyond unilateral US compliance.   
That said, I don't fear the use of declarations over-expanding the topic
for several reasons which I feel in conjunction provide sufficient limits:

(1) The need to claim advantages restricts the affirmatives ability to
avoid negative arguments through treaty modification - with a few
exceptions (LOS, which I'll discuss below), most treaties are limited in
the advantages they can claim.  For example,  the Convention on Nuclear
Safety can claim to increase reactor safety.  And while an affirmative can
spin this into several advantages (we increase reactor safety in the US, we
increase it worldwide through the establishment of international norm, and
reactor safety leads to initiatives on other issues) there is still a very
definite limit to what they can do in terms of creating impacts.  If the
negative is ready to debate the essential thrust of the treaty (whether or
not it increases reactor safety) then their ready to debate the case.  I
think this holds true with most potential cases.

(2) The need to claim solvency  restricts the modifications affirmatives
can make - the bulk of case evidence on any treaty will not assume the
modifications an affirmative might want to make.  Thus, the more they
modify the treaty, the less their solvency evidence assumes plan.  As I'll
point out, counterplans and arguments in the literature make this solvency
deficit particularly troublesome for affirmatives.  

(3) The need to claim international advantages severly restricts
affirmative's ability to modify the treaty - as mentioned above,
affirmatives need to claim international advanteges so that their case will
not be vunerable to counterplans of do the domestic parts only.  These
international advantages are almost always based on US ratification
establishing a new "international norm" or giving new credibility or
impetus to the international success of the treaty.  This need prevents
signifigant modification of the treaty because treaties are examples of
give and take compromise.  If the US picks and chooses which parts it want
to abide by, what's to stop other nations from doing the same?  If the US
chooses to radically alter the treaty before ratifying it, how does that
bolster the creadibility of the treaty?  The literature abounds with these
arguments.   Here's an example of what I'm talking about:

Bassiouni - Professor of Law - 1993
(42 Depaul L Rev 1169, summer, Cherif)

	The Senate's pratice of de facto rewriting treaties, through reservations,
declarations, understandings and provisos, leaves the international
credibility of the United States shaken and its reliability as a
treaty-negotiating partner in doubt.  United States treaty partners find
themselves confronted with what amounts to new treaty provisions or
limitations which were not part of their original perception of the treaty.

(4)  The literature doesn't support writing a lot of SIGNIFIGANTLY
different cases by modifying a treaty - while a bunch of wingnuts came up
with a bunch of wacky ways to modify the CWC, almost none (if not just
plain none) of them discussed how their modifications would effect (or not
effect) the solvency of the treaty.  As shown, good evidence indites the
credibility of modified treaties.  And as pointed out, such case's solvency
wouldn't assume the plan.  In some instances, affirmatives may find enough
evidence to write an entire case which assumes their modification, but, I
think these instances will be rather limited and predictable due to their
presence in the literature .  And its important to remeber that unless
these modifications are somewhat signifigant (which further restricts them)
they won't have an impact on whether the negative is ready to debate the
case. 

(5) Counterplans signifigantly restrict an affirmatives ability to modify
the treaty - in two ways, first, since domestic advantages can be
counterplanned out of,  they force affirmatives to claim international
advantages and therefore to get international solvency.  This prevents the
affirmative from radically altering the treaty because they are forced to
rely on the international ramifications of their ratification(see above,
modification has negative international ramifications).  Second, they
provide a signifigant check against affirmatives choosing not to advocate
part of a treaty since the negative can counterplan "ratify the treaty
without the declaration" and compete off of better solvency since the
affirmatives solvency evidence assumes the counterplan not the plan and

since the counterplan avoids the problems with treaty credibility
modification causes.  

(6) Other terms in the resolution provides signifigant checks, guaranteeing
at least some negative ground - if "ratify and implement a mulatilateral
treaty which has been signed by the executive" is chosen, a signifigant
degree of negative ground is assured regardless of potential modifications.
 Affirmatives must RATIFY a treaty, there is a limited number of these
treaties, there is a limited number of these treaties which would make good
cases, there is a limited number of ways they could be modified without
committing strategic suicide and  there is a limited number of advantages
which can be claimed by each treaty further restricting the impact of
modification on negative ground.

(7) The topic could be worded to avoid these concerns in their entirety -
simply include "ratify, without reservation, declaration, understanding or
proviso,".  I don't support this step because I don't think its too
unlimiting to give affs this flexibility and I have concerns as to the
manner in which it expands negative counterplan ground.  However, if our
primary concern is restricting the aff, it could be done and increasing
negative counterplan ground would probably appease many who complain that
the negative needs even more ground on this topic.
 
(8) Comparitive advantage - a treaties topic at least creates a bunch of
problems for affirmatives who want to expand the topic.  It at least
requires some predictable action. 


>>>>>>>>>>>>>>>GEHRKE WRITES>>>>>>>>>>>>>>>>>>>>>>>>>>>
Likewise, though the congress need not ever issue such a statement to have
this effect. Simply saying in the ratification hearings that this is what
they take the treaty to mean can have such an effect. For example, in US v.
Stuart the Supreme Court relied heavily on Senate debate documents to
determine the treaty's meanings. While Scalia may claim this to be unique,
such is not true. The Court also made similar use in INS v. Stevic. In
fact, several cases reference these documents. (for more, see 83 AJIL 546,
American Journal of Internation Law, July 1989, p. 546).
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

In this case the reinterpretation was made by the Court.  How exactly would
an affirmative incorporate this into a plan?  PLAN: The US will ratify the
LOS and make a statement which clarifies a specific issue and then when the
issue is taken to court (do you fiat the test case or do you just hope one
will occur?) the Court will rule the treaty will be interpreted in the
following way?  Such a plan seems somewhat lame.  It has problems with
solvency (NO ONE advocates this, NO ONE discusses how such action would
interact with the solvency of the plan) it has problems with fiat (how do
you fiat a private actor brings the case to the Supreme Court and is fiat
of this temporal nature legit), it has problems with extra topicality
(fiating a test case is topical how?) its vunerable to a host of
counterplans (ratify the treaty with a resevation which has the same
effect, solve for all of case, compete off a judicial activism disad to
name an obvious one) and all of the above mentioned answers to using
declarations to achieve the same ends apply as well (especially the
discussion of modification undermining treaty credibility, how will it look
if the Court suddenly starts trumping our treaty commitments?).  And
finally, such modification would still be restricted by the literature and
thus be at least somewhat limited and somewhat predictable.

>>>>>>>>>>>GERHKE WRITES>>>>>>>>>>>>>>>>>>>>.
Paul's counterplan defenses are exclusionary (do all of case except...) or
that the literature controls the possible declarations and interpretations.
The first is simply not intelligible strategy given that most interpretive
statements are specific to the treaty at hand (which may seem to reinforce
his second position). 
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
 
I don't understand your answer.  Counterplans force affirmatives to claim
international advantages which checks modifications and they force
affirmatives to not make superfluous modifications since the negative can
counterplan to ratify the treaty without the declaration and compete off of
better solvency by avoiding the credibility problems of modification and
being more consistent with the affirmatives solvency evidence (see
counterplan discussion above).  They prevent affirmatives from modifying
the treaty unless they have found a body of literature which not only
creates an advantage to the modification of the treaty, but also proves the
modified treaty would still solve and would not be adversly percieved by
the international community.  I think these limits, especially in
conjuction with the other checks mentioned above in the discussion of
declarations, are signifigant.  Finally, as pointed out above, topic
wording could solve this problem.

>>>>>>>>>>>>>>>>>>>>>>>>>GERHKE WRITES>>>>>>>>>>>>>>>>>>>>
Now, as for the second, it should be noted that the field of possible
declarations and interpretations abounds almost limitlessly. Take for
example the recent CWC debate and the superfluous reccomendations for
change or modification to the treaty. All an aff needs to do is to make one
of those reccomendations into an interpretive statement, or just a common
understanding written into the ratification testimony. That means that
while most affs may start by talking about one of the 49 treaties listed,
they will end up somewhere quite different.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

First of all, for these reccomendations to have any effect on the limits of
the topic they have to either make the negative's positions irrelevent or
they have to allow the affirmative to claim an advantage the neg is not
prepared to debate.  Most reccomendations do neither of these things. 
Second, as you point out, most of these reccomendations are SUPERFLUOUS! 
The vast majority either won't change the debate for the negative (limits
to concievable advantages, need for solvency) or would be stategic suicide
(treaty credibility, counterplan vunerability) for the affirmative for the
above mentioned reasons.

>>>>>>>>>>>>>>>>>>>>>>>>>>>GERHKE WRITES>>>>>>>>>>>>>>>>  
Paul seems uncertain what to do with the executive and judicial
reinterpretation problem. This is shared by many legal scholars. In
general, the executive branch is given broad discretion by the judicial
branch to reinterpret treaties as it sees fit. As one author put it, "There
is no intelligible set of principles determining the meaning of treaty
texts." (41 UCLA L Rev 953, UCLA LAw Review, April 1994, p. 953). Thus,
when the Reagan administration redefines ABM as not forbidding exotic
systems development and testing they can be confident that not judicial
interference will occur. 
The Supreme Court has consistently upheld whatever the executive took the
treaty to mean (see Alvarez-Machain, O'Connor, etc.) This means that in
general treaties do not confine the actions of the executive of this
nation.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

Same arguments.  If the treaty is interpreted to mean other than what the
literature assumes the solvency suffers, if not then the negative research
applies.

>>>>>>>>>>>>>>>>>GERHKE WRITES>>>>>>>>>>>>>>>>>>
Returning to the judiciary we need to note that most treaties are not truly
self-executing (even if they claim to be). More than one treaty has been
blocked by the House of Representatives because they would not provide any
budget allotment for it. That makes the wording of ratification and
implementation difficult without reverting to a resolution which includes
the executive and the legislative as agents, permitting the inclusion of
not yet submitted nor signed treaties. This is because the budget
allottments require House, Senate, and then Executive approval, aside from
any ratification process. The House has also blocked treaties they see as
being intrusive upon their specific legislative powers. 
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

	I agree.  I believe this is discussed in the topic paper.  We reeccomend
the use of the term "United States" to solve any of these potential
problems.  I don't understand why this allows unsigned treaties if the
topic says "ratify and implement a treaty which has been signed by the
executive".

>>>>>>>>>>>>>>>GERHKE WRITES>>>>>>>>>>>>>>>>>>>>>.
Perhaps the greatest value to the treaty resolutions will be heuristic. We
can utilize the treaty as a focus to test out assumptions and ideas about
topicality, topic constraints, predictability of research, and the
community's willingness to do case specific debate. In that alone it may be
worth doing. Hell, I might even do a longitudinal study on the differences
between next year and the year after if we get the topic... 
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
 
	I agree.  Treaties would be an interesting experiment.  I don't believe
we've tried to really limit affs much in the past.  It would be neat to see
if it could be done and how best to do it.

>>>>>>>>>>>>>>>>GERHKE WRITES
ps:: Ultimately, I think that one of the best negative strategies will be
to do the treaty by executive agreement and avoid the bipart disad. When
congress asked what would happen if they refused Carter's proposals re: the
panama canal, the president simply said that absent their consent it would
be done through executive agreement. That may be a problem with the treaty
resolutions. Not sure about that though.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

	In some instances, I think Executive agreements would be good generic
counterplan ground.  However, such a strategy is limited by a number of
factors.  Most importantly, could the negative prove that other nations
would agree to the EA and would the EA have the same international
credibility as the treaty.  In the case of a treaty such as the LOS which
took decades to negotiate, I don't know it would be such a good idea. 

	Pat's right.  There is room for affirmatives to tinker around with the way
in which they implement the treaty.  However, if they tinker to much, they
risk undermining their own solvency.  If they tinker in ways not supported
by the literature, they risk undermining their solvency and making
themselves vunerable to other arguments.  If they don't tinker that much,
then the negative's arguments still apply.  And if they do make signifigant
modifications fully supported by the literature, more power to them.  They
still have to ratify a multilateral treaty and their case is both limited
and predictable due to its presence in the literature.

Paul

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