clubs but the treaty is limited to united states agreements with other sovereign entities and hong kong is not a sovereign what do we do with the treaties within the in the nation's the treaties with indian nations i think are instruct states that from this moment indian tribes will not be considered independent nations with whom the united states can enter into treaties and i think that's very important because you know even seventy one a congress does not state that one simply cannot enter into treaties with the indian tribes it's basically treaty clauses in a co created for entering into treaties with any five because they are not independent because they are not longer sovereign entities and they were therefore incapable of making treaties under the treaty clause rather the united states cannot use the treaty clause to enter into treaties with them so therefore from eight hundred seventy one on all acts dealing with union tries were done by congressional executive agreements they were no longer done by treaty and the reason why again is because the eight hundred seventy one act tells us why because they were no longer considered independent nation of the president trichet who traditionally uses the convention executive agreement to enter into agreements with non sovereign entities but instead this is the first example in history where the united states the president has used the an agreement with an entity that has never been sovereign and it goes against the entire meaning and history of the treaty clause to interpret it as including i mean it's between the united states and non sovereign that the tree well as a matter of fact your honor there is nothing in the record to show that the p r c actually did approve this hong kong extradition agreement we're supposed to disbelieve the transmittal letter from the secretary of state no your honor but as in the successor cases that i've succession cases that i've noted in my papers where the courts examine these are numerous ninth circuit cases where the court examines whether a foreign successor fo the treaty class suggests that the president makes an agreement and that seems agreement is approved by the senate that that that same agreement gets the advice and consent of the senate and that again is not what happened in this case y itself i've also noted that treaties should be interpreted according to the ordinary rules of statutory construction that apply to contracts and certainly if this were ordinary contract  an ordinary contract could not be amended to include a third party just on this just on the say so of one of the parties to the contract we will see whether the third party had actually produced some sort of document or statement constitution numerous commentators just a story by alexander hamilton these are all people that have have agreed with the interpretation of treaty to mean agreement between the united states and sovereign entities and again the eight hundred seventy one act i think is is very illustrated what the president and congress believe in eight hundred seventy one they did not state again that the indian tribes could not enter into treaties under the treaty clause just for no reason at all they stated specifically in this law for a law that's still on the books twenty five us the second seventy one that they could not indian tribes cannot enter into treaties with the limited to agreements between the united states and other sovereigns and even today modern commentators and courts continue to hold the same view they've stated that the united states can't enter into namely if china does not want to be bound by the treaty if it wants to of struck hong kong's honoring its own free obligations to what extent do we have a treaty that we should honor and those practical considerations i think again should be devoted to the president from entering into a treaty with two thirds approval of the for a treaty in general i don't think it's constitutionally prohibited i think it gets back to ferguson's question as to whether it would be pragmatic and whether it would be sensible when and the when the country that as a whole might obstruct compliance with that for you but that's a political consideration one which would measure against perhaps the president entering into such a treaty in this case if one believes that china would never allow the  what happened with the treaty that the heart of that the people's republic of china has approved it will be in the record is the transmit a letter from the secretary of state and what the court can also consider is what other courts are recognized namely that in enacting the treaty  for example a footnote six of the children and out of the second circuit that court recognized that the united states acknowledging concerns of the people's republic of how to have with the language of the treaty i got a certain rhetorical changes namely styling the treaties and agreements and describing the matter the subject matter of it as being surrender rather than extradition so those are just a few examples of what the record and what the legislat to the united states and so the petition and that case claimed that the treaty was no longer valid having been basically repudiated by one of the parties asked the president's vehicle officials and lawyers whether or not  and i think in fact if one looks at the second circuit decision it does touch on the word treaty and its and its argument that treaty is not limited to sovereign entities that it is very thin indeed and what the second circuit states is that a treaty can include non sovereign entities because of the indian tribe analogy basically the second circuit's analogizes hong kong to indian tribes and nation states that stands united states entered into treaties with indian tribes nations and assumes that those indian tribes nations were non sovereign well that means that the treaty clause can also include not sovereign entities but that analogy is simply incorrect treaty clause was limited at the time the constitution to mention what's really not in any of the argument that what you've just described is more different materially from a transience government saying we don't like the united states of america or we don't like what they do with respect to this build me or that penalty so we're not going to honor the extradition treaty when the argument is that doesn't make a treating not a treaty  why does the fact that there are no discernable obligations once you're in this for me this less than the treaty well i think the fact that there are no discernable obligations i think that points out the fact that hong kong is not sovereign i think that perhaps congress and the president have made that determination they stated that the p r c is the sovereign over hong kong and hong kong is not the sovereign that controls that region i think based on that the court can make the determination the constitutional determination what  sovereign entity and i think the way to interpret that is the way that other constitutional terms are interpreted like due process and equal protection one just doesn't look at them in a vacuum of the constitution itself but in terms of their original meaning and their historical application sort of just both counsel for bringing us a really really interesting case who would have thought that in the public defender's office in the u s attorney's office in central district would be talking about issues like these folks an excellent job thank you very much thank you