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What is the Verdict on U.S. President Trump’s Campaign Promise to Withdraw from International Treaties?

January 16, 2018, Yian Pan

 

EDITOR’S NOTE: The following paper was presented in Hamburg, Germany on December 13, 2017 and served as an update to a similar presentation made by Wong Fleming in Hamburg in December 2016, on the eve of Donald Trump’s swearing-in as the 45th U.S. President.

  1. Overview: Treatises and International Agreements

In December 2016, Wong Fleming and Schomerus gave a presentation in Hamburg on then U.S. President-elect Donald Trump’s potential impact on businesses in Germany, given his campaign promise to renegotiate, leave, or stop the approval process for numerous treaties and international agreements. No other U.S. President had arrived at the White House with more bellicose and strident rhetoric as Trump, and so we set out last December to provide the German business community with a general overview on U.S. law and how it might act as a brake to Trump’s determination to upend the international community by withdrawing the U.S. from a host of different international treaties and the like.

In this regard, we pointed out that Article II, section 2, clause 2 of the United States Constitution provides, “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur[.]”[1] The treaty power is an independent power that allows the federal government to legislate in areas that would otherwise be reserved to the states. The only limitation on the treaty power is that the treaty cannot conflict with the Constitution.[2] The President also has the power to enter into congressional-executive agreements, which are signed by the President and approved by both Houses of Congress by a simple majority. These agreements are used when the subject matter involves the competence of Congress, such as trade, and are binding domestic law. Executive (only) agreements are made by the President using his powers in foreign policy, as commander-in-chief of the armed forces, or from an Act of Congress. Notably, these agreements may be rescinded by a future President.

  1. Treatises

 

  1. North American Free Trade Agreement (NAFTA)

 

     Verdict: The U.S. Has Not Withdrawn From NAFTA But Trump Is Looking To “Renegotiate”

The North American Free Trade Agreement (“NAFTA”) is a treaty between the United States, Canada, and Mexico, signed into effect on January 1, 1994.[3] Tariffs on a majority of goods produced by the signatory countries were immediately eliminated upon effect of the treaty[4] and there was a gradual elimination of other duties and quantitative restrictions.[5] With the exception of a limited number of agricultural products traded with Canada, most remaining restrictions on free trade among the countries were fully eliminated by 2008.[6] As it stands, NAFTA is the world’s largest free trade agreement, where the gross domestic product of its three members exceeds $20 trillion, and is also the first time a developing nation signed a trade agreement with two developed nations.[7]

On January 23, 2017, President Trump signed an executive order to renegotiate NAFTA,[8] with the intention of obtaining a more favorable deal for American workers.[9] Trump initially threatened to withdraw from NAFTA in his first 100 days of presidency, but later withdrew his threat after being warned by both Canada’s Prime Minister and Mexico’s President to not take such a drastic and hasty step.[10] Renegotiations of NAFTA commenced on August 16, 2017, with the fifth and most recent round on November 15, 2017.[11] While the countries had initially hoped to conclude the renegotiations by the end of this year,[12] Trump’s “abrasive dealmaking style” led to a standoff regarding the talks.[13] However, both Canada and Mexico agreed to extend renegotiations through the end of March 2018.[14]

Trump has claimed that he has the unilateral power to withdraw from NAFTA, although it is highly doubtful that he can, and lawmakers and legal scholars are likewise very dubious of his ability to pull out of NAFTA.[15] NAFTA was originally codified in domestic law through the NAFTA Implementation Act, which was passed by both Houses of Congress and then signed by the President. While NAFTA allows members to withdraw if they provide six months’ notice to the other members, and the president has the authority to withdraw the country from international agreements, NAFTA was actually put into effect by the NAFTA Implementation Act.[16] Notably, the NAFTA Implementation Act is a piece of congressional legislation, and thus under the U.S. Constitution, the President does not have the power to unilaterally undo a congressional statute.[17] Thus, Congress, and not President Trump, may ultimately have the authority to undo such a large agreement, and would at least lead to lengthy legal battles that would delay the United States’ complete withdrawal.[18]

  1. World Trade Organization (WTO), General Agreement on Tariffs and Trade (GATT), and General Agreement on Trade in Services (GATS) –

 

        Verdict: Trump Is Threatening and Attacking These Organizations To Force    Them To Bend To His Will

The World Trade Organization (“WTO”) is an international organization that regulates over 98% of global trade among 164 member countries,[19] serves as a forum for negotiating trade agreements, settles trade disputes between its member countries, and supports developing countries.[20] The WTO replaced the General Agreement on Tariffs and Trade (“GATT”) on January 1, 1995, which had regulated interstate commerce since 1948.[21] The United States has been a member of the WTO since its establishment in 1995.[22] As a consequence of the Uruguay Round, also in January 1995, the General Agreement on Trade in Services (“GATS”).[23] GATS’ creation was inspired by similar objectives to GATT: “creating a credible and reliable system international trade rules; ensuring fair and equitable treatment of all participants (principle of non-discrimination); stimulating economic activity through guaranteed policy bindings; and promoting trade and development through progressive liberalization.”[24]

As a member of the WTO, the United States is required to give other members “most-favored-nation” status, meaning a non-discriminatory low tariff rate.[25] The 35 percent tariff on Mexican imports and 45 percent tariff on Chinese imports proposed by Trump would thus be a “flagrant violation” of WTO rules.[26] Trump has blamed the WTO and named China’s entry into the WTO as reasons behind the loss of manufacturing jobs in the United States.[27] While some economists have found such a correlation, WTO Director-General Roberto Azevedo pointed out that a number of studies demonstrate that the loss of manufacturing jobs is actually attributed to technological changes.[28] Trump also vowed earlier this year that his administration would ignore certain WTO rulings, suggesting that it would unilaterally impose tariffs on countries it thinks has unfair tariffs.[29] Not only would this violate the rules under the WTO, it might also invite retaliation from other member countries.[30] Further, trade experts are also worried that Trump’s decision to approach will lead to a chain reaction and cause other countries to do the same, which would ultimately penalize manufacturers in the United States.[31]

More recently, Trump has been “waging a behind-the-scenes campaign against the WTO’s dispute settlement system”, by refusing to approve the start of the selection process for new members of the Appellate Body (AB) of the WTO.[32] The Trump administration’s threat is that it will withhold its approval unless the United States is given its way and allowed to change the way the WTO settles disputes, though it has yet to specify how or what kind of changes it is seeking.[33] While the AB is allotted seven members, it currently only has five, and will be down to three within the next year, thus putting the United States in a strong position of shutting it down if it does not get what it wants.[34] If no new AB members are appointed and it deceases to only two members, the AB will be unable to formally operate, since it requires a minimum of three sitting judges.[35] Thus, this could lead to the “crumbling of the WTO dispute settlement system [and] could threaten the entire system of rules-based trade.”[36]

  • International Agreements

 

  1. Trans-Pacific Partnership (TPP)

 

Verdict: Trump Has Pulled The U.S. Out Of TPP, but TPP continues moving forward

On October 4, 2015, the Ministers of 12 countries – Australia, Brunei Darussalam, Canada, Chile, Japan, Malaysia, Mexico New Zealand, Peru, Singapore, United States, and Vietnam – signed the Trans-Pacific Partnership (“TPP”).[37] As a result of the negotiations, the countries agreed to “promote economic growth; support the creation and retention of jobs; enhance innovation, productivity and competitiveness; raise living standards; reduce poverty in our countries; and promote transparency, good governance, and enhanced labor and environmental protections.”[38] The TPP was signed by then-President Obama when he was still in office, but was not ratified by Congress. During Trump’s presidential campaign, he called it a “horrible deal”, though he was not alone in his opposition to the agreement.[39] TPP opponents argued that it favored big business and other countries at the cost of jobs in the United States.[40]

On January 23, 2017, Trump withdrew the United States from the TPP, just three days into his term, fulfilling one of his campaign promises.[41] While many predicted that this would come as a major blow to the other 11 signatory countries, the remaining countries came to an agreement in early November on how to move forward without the United States.[42] The 11 countries, whose trade totaled approximately $350 billion last year, now have a plan for more free trade amongst themselves, without the United States.[43] Had the United States remained in the deal, it would have strengthened trade ties between the 12 countries accounting for 40% of global GDP, which is approximately the equivalent of $27.4 trillion.[44] In addition, “other factors are pushing the rest of the world to fill the void left by the United States … [t]he absence of the United States means potential opportunities for others[, like China].”[45] Other countries are also in the process of making their own international trade deals, all without the United States: China is in talks with 16 other Asia-Pacific countries, and the European Union and Japan each are engaged in separate trade negotiations with a group of South American countries.[46]

  1. Paris Agreement

 

Verdict: Trump Claims The U.S. Is Withdrawing From The Paris Agreement, But The Earliest Date When The U.S. Can Withdraw is November 4, 2010, One (1) Day After The Next Presidential Election

The Paris Agreement was adopted on December 12, 2015 at the twenty-first session of the Conference of the Parties to the United Nations Framework Convention on Climate Change.[47] The agreement entered into force on November 4, 2016, “thirty days after the date on which at least 55 Parties to the Convention accounting in total or at least an estimated 55% of the total global greenhouse gas emissions have deposited their instruments of ratification, acceptance, approval or accession with the Depositary.”[48] Currently, 170 of 197 Parties to the Convention have ratified the agreement.[49] Under the Paris Agreement, parties are brought together by a common purpose to combat climate change and to assist developing countries in similar endeavors to do so.[50] The primary goal of the Paris Agreement is:

[T]o strengthen the global response to the threat of climate change by keeping a global temperature rise this century well below 2 degrees Celsius above pre-industrial levels and to pursue efforts to limit the temperature increase even further to 1.5 degrees Celsius. Additionally, the agreement aims to strengthen the ability of countries to deal with the impacts of climate change.[51]

Under former President Obama, the United States had pledged to cut greenhouse gas emissions in the country by as much as 28% from 2005 levels by the year 2025, as part of the process to slow global warming.[52] However, in August earlier this year, the United States State Department officially informed the United Nations that the United States would be withdrawing from the Paris Climate, but kept open the possibility of rejoining “if the terms improved for the United States.”[53] Further, it is unclear why the United States decided to announce its decision now, given that under the Agreement, no country was supposed to be able to withdraw until November 4, 2019 (three years to the day in which the agreement became effective).[54] In addition, the withdrawal process itself will take three years, and the United States is expected to continue participating in United Nations climate change meetings until then, which essentially means that it will have to continue contributing to the writing of the Paris Agreement rule book.[55] Thus, despite Trump’s ability to unilaterally withdraw the country from the agreement, the earliest date on which the United States can even withdraw is November 4, 2020, which is one day after the 2020 presidential election.[56]

Earlier in November, Syria announced that it would sign the Paris agreement, not long after Nicaragua’s signature.[57] This leaves the United States as the only country that has rejected this international agreement.[58] While both Syria and Nicaragua did not sign the agreement at its inception, they did not do so for very different reasons.[59] The most recent round of United Nations climate negotiations also recently ended in Bonn, Germany, and was the first summit after Trump’s June 2017 announcement to withdraw the United States from the agreement.[60]

  1. Iran Nuclear Deal

 

Verdict: Trump Has Not Rescinded The Deal, But He Has Refused To Re-Certify It, And He Is Now Waiting To See If Congress Will Reinstate Sanctions Against Iran

In 2015, six “world powers” – the United States, the United Kingdom, Russia, France, China, and Germany – signed the Iran Nuclear Deal under the Joint Comprehensive Plan of Action (“JCPOA”).[61] The framework of the initial deal blocks the four potential paths that lead to building a nuclear weapon.[62] In order to build a nuclear bomb, Iran requires access to either uranium or plutonium, but the Deal blocks the different ways in which the country can leverage the fissile materials.[63] Simply put, the Deal cuts off Iran’s access to: “highly enriched uranium at Natanz Facility, highly enriched uranium at Fordow Facility, weapons-grade plutonium, [and] covert attempts to produce fissile material.”[64] With the deal, all 4 pathways to building a nuclear bomb are blocked; without it, Iran merely needs approximately 2-3 months to produce one bomb’s worth of material.[65]

However, because of ex-President Obama’s close association with the deal, Trump announced that he will not recertify the deal, announcing his decision to disavow it.[66] Trump claimed that the deal was too lenient and that Iran had broken various components of the agreement, while the EU’s foreign policy chief Federica Mogherini stated that there had been “no violations” by Iran.[67] Interestingly, Trump’s decision to disavow the agreement stops short of completely unraveling the agreement, and instead pushes the responsibility to Congress to decide whether or not to reinstate sanctions on Iran or to completely discard the deal.[68] While Trump’s aides claim that the purpose was not to shift the responsibility to Congress, others, like Senator Benjamin L. Cardin of Maryland, are more critical: “We will not buy into the false premise that it is Congress’s role to legislate solutions to problems of his own making.”[69] In fact, Trump has the authority to rescind the deal at any time by revoking waivers and modifying executive orders to reinstate sanctions and other controls upon Iran.

  1. Transatlantic Trade and Investment Partnership (“TTIP”)

 

Verdict: Trump Has Pulled The U.S. Out Of TTIP

The Transatlantic Trade and Investment Partnership (“TTIP”) is an agreement between the United States and the European Union, and will “help unlock opportunity for American families, workers, businesses, farmers and ranchers through increased access to European markets for Made-in-America goods and services.”[70] Among other things, TTIP intends to boost economic growth and add to the over 13 million American and EU jobs already supported by transatlantic trade.[71]

In January 2017, Trump formally abandoned the TTIP and “declared an end to the era of multinational trade agreements that defined global economics for decades.”[72] The short term effect of Trump’s move is a boost for American jobs, since American garment manufacturers, produce sellers, and plant and machinery manufacturers will no longer have to worry about cheaper counterparts from other countries. [73] However, the long term effect of Trump’s decision is much more far reaching.[74] For instance, in the software, finance, Hollywood and entertainment industries, where America currently enjoys an immense advantage, will have less access to the fast-growing markets in these same countries – “America will lose business opportunities, create fewer jobs and see lower profits as a result of [] Trump’s action.”[75]

  1. Conclusion

For the most part, President Trump has followed through on his campaign promises to tear up international treaties and agreements, where he is constitutionally authorized to do so. The notable exception is his apparent waffling on the Iran Nuclear Deal. President Trump could have rescinded the Iran Nuclear Deal (he had the constitutional authority to do so). Instead, he is asking Congress to step in and determine whether it wants to re-impose sanctions against Iran. Congress has not done so yet, and many observers doubt that Congress will reinstate those sanctions. Ultimately, President Trump will probably have to determine whether to de-certify the Iran Nuclear Deal without any support or backing of Congress.

[1] U.S. Const. Art. II, § 2, cl. 2.

[2] See U.S. Const. Art. VI, cl. 2. (“The Constitution, and the laws of the United States … shall be the supreme law of the land ….”).

[3] North American Free Trade Agreement (NAFTA), Office of the U.S. Trade Rep., https://ustr.gov/trade-agreements/free-trade-agreements/north-american-free-trade-agreement-nafta (last visited Dec. 15, 2017).

[4] North American Free Trade Agreement (NAFTA), U.S. Customs and Border Protection, https://www.cbp.gov/trade/nafta (last visited Dec. 15, 2017).

[5] North American Free Trade Agreement (NAFTA), Office of the U.S. Trade Rep., https://ustr.gov/trade-agreements/free-trade-agreements/north-american-free-trade-agreement-nafta (last visited Dec. 15, 2017).

[6] Id.

[7] Kimberly Amadeo, What Is the North American Free Trade Agreement?: What Does NAFTA Do?, the balance (Oct. 18, 2017), https://www.thebalance.com/nafta-definition-north-american-free-trade-agreement-3306147.

[8] Kimberly Amadeo, Would Trump Dump NAFTA?, The Balance (Nov. 24, 2017), https://www.thebalance.com/donald-trump-nafta-4111368.

[9] Elena Holodny, Trump reportedly expected to sign an executive order on NAFTA, Bus. Insider (Jan. 23, 2017, 8:02 AM), http://www.businessinsider.com/trump-to-sign-executive-order-to-renegotiate-nafta-2017-1.

[10] Binyamin Appelbaum & Glenn Thrush, Trump’s Day of Hardball and Confusion on Nafta, N.Y. Times (Apr. 27, 2017), https://www.nytimes.com/2017/04/27/us/politics/trump-says-he-will-renegotiate-nafta-or-terminate-it.html.

[11] Kimberly Amadeo, Would Trump Dump NAFTA?, The Balance (Nov. 24, 2017), https://www.thebalance.com/donald-trump-nafta-4111368.

[12] Id.

[13] Steven Mufson & Damian Paletta, Trump officials’ hard-line negotiating tactics lead to a trade talks standoff, N.Y. Times (Oct. 17, 2017), https://www.washingtonpost.com/business/economy/trump-officials-hard-line-negotiating-tactics-lead-to-a-trade-talks-standoff/2017/10/17/ae724a8e-b346-11e7-9e58-e6288544af98_story.html?utm_term=.11d28a94ce9f&wpisrc=nl_finance202&wpmm=1.

[14] Id.

[15] Bethany Allen-Ebrahimian, Can Congress Block Trump if He Pulls Out of NAFTA?, FP (Oct. 17, 2017, 12:28 PM), http://foreignpolicy.com/2017/10/17/can-congress-block-trump-if-he-pulls-out-of-nafta/.

[16] Id.

[17] Id.

[18] Allen-Ebrahimian, supra note 15. “It took Congress to pass NAFTA and it should take Congress to kill NAFTA.” Zeeshan Aleem, We asked 6 experts if Congress could stop Trump from eliminating NAFTA, Vox (Oct. 26, 2017, 1:40PM), https://www.vox.com/policy-and-politics/2017/10/26/16505508/nafta-congress-block-trump-withdraw-trade-power.

[19] Bryan Schonfeld, Why the U.S. needs the World Trade Organization, The Washington Post (Sept. 20, 2016), https://www.washingtonpost.com/news/monkey-cage/wp/2016/09/20/would-the-u-s-be-better-off-without-the-wto-not-when-the-wto-guides-98-percent-of-global-trade/?utm_term=.d72407d9a4f9.

[20] The WTO, World Trade Org., https://www.wto.org/english/thewto_e/thewto_e.htm (last visited Dec. 15, 2017).

[21] Schonfeld, supra note 19.

[22] Id.; United States of America and the WTO, World Trade Org., https://www.wto.org/english/thewto_e/countries_e/usa_e.htm (last visited Dec. 15, 2017).

[23] The General Agreement on Trade in Services (GATS): objectives, coverage and disciplines, World Trade Org., https://www.wto.org/english/tratop_e/serv_e/gatsqa_e.htm (last visited Dec. 15, 2017).

[24] Id.

[25] Schonfeld, supra note 19.

[26] This is according to Stanford legal scholar Alan O. Skyes. Id.

[27] Id.

[28] Id.

[29] Damian Paletta & Ana Swanson, Trump suggests ignoring World Trade Organization in major policy shift, The Washington Post (Mar. 1, 2017), https://www.washingtonpost.com/news/wonk/wp/2017/03/01/trump-may-ignore-wto-in-major-shift-of-u-s-trade-policy/?utm_term=.113ece3e2333.

[30] Id.

[31] Id.

[32] Gregory Shaffer, Manfred Elsig & Mark Pollack, Trump is fighting an open war on trade. His stealth war on trade may be even more important., The Washington Post (Sept. 27, 2017), https://www.washingtonpost.com/news/monkey-cage/wp/2017/09/27/trump-is-fighting-an-open-war-on-trade-his-stealth-war-on-trade-may-be-even-more-important/?utm_term=.e5ab8471987f.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Summary of the Trans-Pacific Partnership Agreement, Office of the U.S. Trade Rep., https://ustr.gov/about-us/policy-offices/press-office/press-releases/2015/october/summary-trans-pacific-partnership (last visited Dec. 15, 2017).

[38] Id.

[39] TPP: What is it and why does it matter?, BBC News (Jan. 23, 2017), http://www.bbc.com/news/business-32498715.

[40] Id.

[41] Alex Ward, The Trans-Pacific Partnership has been resurrected – and it’s happening without the US, Vox (Nov. 11, 2017, 3:38PM), https://www.vox.com/2017/11/11/16637826/trump-trans-pacific-partnership.

[42] Id.

[43] Id.

[44] Id.

[45] Alexandra Stevenson & Motoko Rich, Trans-Pacific Trade Partners Are Moving On, Without the U.S., N.Y. Times (Nov. 11, 2017), https://www.nytimes.com/2017/11/11/business/trump-tpp-trade.html?_r=0.

[46] Id.

[47] Status of Treaties: Chapter XXVII, U.N. Treaties Collection, https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-7-d&chapter=27&lang=_en&clang=_en (last visited Dec. 15, 2017).

[48] The Paris Agreement, U.N. Framework on Climate Change, http://unfccc.int/paris_agreement/items/9485.php (last visited Dec. 15, 2017).

[49] Id.

[50] Id.

[51] Id.

[52] Valerie Volcovici, U.S. submits formal notice of withdrawal from Paris climate pact, Reuters (Aug. 4, 2017, 5:25PM), https://www.reuters.com/article/us-un-climate-usa-paris/u-s-submits-formal-notice-of-withdrawal-from-paris-climate-pact-idUSKBN1AK2FM.

[53] Id.

[54] Robinson Meyer, Trump and the Paris Agreement: What Just Happened?, The Atlantic (Aug. 4, 2017), https://www.theatlantic.com/science/archive/2017/08/trump-and-the-paris-agreement-what-just-happened/536040/.

[55] Volcovici, supra note 52; Lisa Friedman, New Talks on Paris Climate Pact Are Set, and That’s Awkward for U.S., N.Y. Times (Oct. 18, 2017), https://www.nytimes.com/2017/10/18/climate/trump-paris-accord.html.

[56] Id.

[57] Lisa Friedman, Syria Joins Paris Climate Accord, Leaving Only U.S. Opposed, N.Y. Times (Nov. 7, 2017), https://www.nytimes.com/2017/11/07/climate/syria-joins-paris-agreement.html.

[58] Id.

[59] Id. “Nicaraguan leaders argued that the deal did not go far enough toward keeping carbon emissions at safe levels and helping vulnerable countries protect themselves from the effects of climate change … and Syria has been mired in a civil war since 2011.” Id.

[60] Johannes Urpelainen, Trump’s withdrawal from the Paris agreement means other countries will spend less to fight climate change, N.Y. Times (Nov. 21, 2017),

[61] Iran nuclear deal: Key details, BBC (Oct. 13, 2017), http://www.bbc.com/news/world-middle-east-33521655.

[62] The Historic Deal that Will Prevent Iran from Acquiring a Nuclear Weapon, the White House: President Barack Obama, https://obamawhitehouse.archives.gov/node/328996 (last visited Dec. 15, 2017).

[63] Id.

[64] Id.

[65] The Historic Deal that Will Prevent Iran from Acquiring a Nuclear Weapon, the White House: President Barack Obama, https://obamawhitehouse.archives.gov/node/328996 (last visited Dec. 15, 2017).

[66] Iran nuclear deal: Key details, BBC (Oct. 13, 2017), http://www.bbc.com/news/world-middle-east-33521655; Mark Landler & David E. Sanger, Trump Disavows Nuclear Deal, but Doesn’t Scrap It, N.Y. Times (Oct. 13, 2017).

[67] Iran nuclear deal: Key details, BBC (Oct. 13, 2017), http://www.bbc.com/news/world-middle-east-33521655.

[68] Mark Landler & David E. Sanger, Trump Disavows Nuclear Deal, but Doesn’t Scrap It, N.Y. Times (Oct. 13, 2017), https://www.nytimes.com/2017/10/13/us/politics/trump-iran-nuclear-deal.html.

[69] Id.

[70] Transatlantic Trade and Investment Partnership (T-TIP), Office of the U.S. Trade Rep., https://ustr.gov/ttip (last visited Dec. 15, 2017).

[71] Id.

[72] Peter Baker, Trump Abandons Trans-Pacific Partnership, Obama’s Signature Trade Deal, N.Y. Times (Jan. 23, 2017), https://www.nytimes.com/2017/01/23/us/politics/tpp-trump-trade-nafta.html.

[73] Sean O’Grady, By scrapping TPP and TTIP, Trump has boosted American jobs in the short term – and destroyed them in the long term, Independent (Jan. 24, 2017, 14:45 PM), http://www.independent.co.uk/voices/donald-trump-trade-deals-tpp-ttip-american-business-workers-boost-short-term-destroy-long-term-a7543706.html.

[74] Id.

[75] Id.