[Senate Prints 106-71]
[From the U.S. Government Printing Office]




106th Congress              COMMITTEE PRINT            S. Prt.
2d Session                                              106-71
_______________________________________________________________________

                                     

 
      TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE
                          UNITED STATES SENATE

                               ----------                              

                              A   S T U D Y

                            PREPARED FOR THE

                     COMMITTEE ON FOREIGN RELATIONS
                          UNITED STATES SENATE

                                 BY THE

                     CONGRESSIONAL RESEARCH SERVICE
                          LIBRARY OF CONGRESS

[GRAPHIC] [TIFF OMITTED] TONGRESS.#13


                              JANUARY 2001



106th Congress 
 2d Session                 COMMITTEE PRINT                     S. Prt.
                                                                 106-71
_______________________________________________________________________

                                     


      TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE

                          UNITED STATES SENATE

                               __________

                              A   S T U D Y

                            PREPARED FOR THE

                     COMMITTEE ON FOREIGN RELATIONS

                          UNITED STATES SENATE

                                 BY THE

                     CONGRESSIONAL RESEARCH SERVICE

                          LIBRARY OF CONGRESS

[GRAPHIC] [TIFF OMITTED] TONGRESS.#13


                              JANUARY 2001

       Printed for the use of the Committee on Foreign Relations

                               __________

                    U.S. GOVERNMENT PRINTING OFFICE
66922 cc                    WASHINGTON : 2001




                     COMMITTEE ON FOREIGN RELATIONS
                 JESSE HELMS, North Carolina, Chairman

JOSEPH R. BIDEN, JR., Delaware       RICHARD G. LUGAR, Indiana
PAUL S. SARBANES, Maryland           CHUCK HAGEL, Nebraska
CHRISTOPHER J. DODD, Connecticut     GORDON SMITH, Oregon
JOHN F. KERRY, Massachusetts         ROD GRAMS, Minnesota
RUSSELL D. FEINGOLD, Wisconsin       SAM BROWNBACK, Kansas
PAUL WELLSTONE, Minnesota            CRAIG THOMAS, Wyoming
BARBARA BOXER, California            JOHN ASHCROFT, Missouri
ROBERT G. TORRICELLI, New Jersey     BILL FRIST, Tennessee
                                     LINCOLN D. CHAFEE, Rhode Island

                     Stephen Biegun, Staff Director
                 Edwin K. Hall, Minority Staff Director
                   Richard J. Douglas, Chief Counsel
                     Brian McKeon, Minority Counsel


                          LETTER OF SUBMITTAL

                              ----------                              

            Congressional Research Service,
                           The Library of Congress,
                           Washington, DC, January 2, 2001.
Hon. Jesse Helms,
Chairman, Committee on Foreign Relations,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: In accordance with your request, we have 
revised and updated the study ``Treaties and Other 
International Agreements: The Role of the United States 
Senate,'' last published in 1993. This new edition covers the 
subject matter through the 106th Congress.
    This study summarizes the history of the treatymaking 
provisions of the Constitution and international and domestic 
law on treaties and other international agreements. It traces 
the process of making treaties from their negotiation to their 
entry into force, implementation, and termination. It examines 
differences between treaties and executive agreements as well 
as procedures for congressional oversight. The report was 
edited by Richard F. Grimmett, Specialist in National Defense. 
Individual chapters were prepared by policy specialists and 
attorneys of the Congressional Research Service identified at 
the beginning of each chapter.
    The Congressional Research Service would like to thank 
Richard Douglas, Chief Counsel of the Committee, Edwin K. Hall, 
Minority Staff Director of the Committee, Brian P. McKeon, 
Minority Counsel of the Committee, and Robert Dove, 
Parliamentarian of the Senate, for their comments on Senate 
procedures for consideration of treaties. We would also like to 
thank Robert E. Dalton, Assistant Legal Adviser for Treaty 
Affairs, Department of State, and other staff members of the 
Treaty Office for their assistance with various factual 
questions regarding treaties and executive agreements.
            Sincerely,
                                       Daniel P. Mulhollan,
                                                          Director.


                            C O N T E N T S

                              ----------                              

                                                                   Page

Letter of submittal..............................................   iii
Introductory note................................................    xi
I. Overview of the treaty process................................     1
    A. Background................................................     2
        The evolution of the Senate role.........................     2
        Treaties under international law.........................     3
        Treaties under U.S. law..................................     4
        Executive agreements under U.S. law......................     4
            (1) Congressional-executive agreements...............     5
            (2) Agreements pursuant to treaties..................     5
            (3) Presidential or sole executive agreements........     5
        Steps in the U.S. process of making treaties and 
          executive agreements...................................     6
            Negotiation and conclusion...........................     6
            Consideration by the Senate..........................     7
            Presidential action after Senate action..............    12
            Implementation.......................................    12
            Modification, extension, suspension, or termination..    13
            Congressional oversight..............................    14
        Trends in Senate action on treaties......................    14
    B. Issues in treaties submitted for advice and consent.......    15
        Request for consent without opportunity for advice.......    15
        Multilateral treaties....................................    16
        Diminishing use of treaties for major political 
          commitments............................................    17
        Unilateral executive branch action to reinterpret, 
          modify, and terminate treaties.........................    18
        Difficulty in overseeing treaties........................    19
        Minority power...........................................    19
        The House role in treaties...............................    19
        Vienna Convention on the Law of Treaties.................    20
    C. Issues in agreements not submitted to the Senate..........    21
        Increasing use of executive agreements...................    22
        Oversight of executive agreements--the Case-Zablocki Act.    22
        Learning of executive agreements.........................    22
        Determining authority for executive agreements...........    23
        Non-binding international agreements.....................    23
    D. Deciding between treaties and executive agreements........    24
        Scope of the treaty power; proper subject matter for 
          treaties...............................................    24
        Scope of executive agreements; proper subject matter for 
          executive agreements...................................    25
        Criteria for treaty form.................................    26
II. Historical background and growth of international agreements.    27
    A. Historical background of constitutional provisions........    27
        The Constitutional Convention............................    28
        Debate on adoption.......................................    29
    B. Evolution into current practice...........................    31
        Washington's administrations.............................    32
        Presidencies from Adams to Polk..........................    35
        Indian treaties..........................................    36
        Conflicts and cooperation................................    37
        Executive agreements and multilateral agreements.........    38
        Increasing proportion of executive and statutory 
          agreements.............................................    40
        Growth in multilateral agreements........................    42
III. International agreements and international law..............    43
    A. The Vienna Convention on the Law of Treaties..............    43
        International law status.................................    43
        Senate action on the convention..........................    45
    B. Treaty definition.........................................    49
    C. Criteria for a binding international agreement............    50
        Intention of the parties to be bound under international 
          law....................................................    50
        Significance.............................................    51
        Specificity..............................................    52
        Form of the agreement....................................    52
    D. Limitations on binding international agreements and 
      grounds for invalidation...................................    53
        Invalidation by fraud, corruption, coercion or error.....    53
        Invalidation by conflict with a peremptory norm of 
          general international law ( jus cogens)................    54
         Invalidation by violation of domestic law governing 
          treaties...............................................    56
     E. Non-binding agreements and functional equivalents........    58
         Unilateral commitments and declarations of intent.......    59
         Joint communiques and joint statements..................    60
         Informal agreements.....................................    61
         Status of non-binding agreements........................    62
IV. International agreements and U.S. law........................    65
    A. Treaties..................................................    65
         Scope of the treaty power...............................    65
         Treaties as law of the land.............................    72
    B. Executive agreements......................................    76
         Congressional-executive agreements......................    78
         Agreements pursuant to treaties.........................    86
         Presidential or sole executive agreements...............    87
V. Negotiation and conclusion of international agreements........    97
    A. Negotiation...............................................    97
        Logan Act................................................    98
    B. Initiative for an agreement; setting objectives...........   100
    C. Advice and consent on appointments........................   103
        Unconfirmed presidential agents..........................   105
    D. Consultations during the negotiations.....................   106
        Inclusion of Members of Congress on delegations..........   109
    E. Conclusion or signing.....................................   111
    F. Renegotiation of a treaty following Senate action.........   112
    G. Interim between signing and entry into force; provisional 
      application................................................   113
VI. Senate consideration of treaties.............................   117
    A. Senate receipt and referral...............................   118
        Senate Rule XXX..........................................   118
        Executive session--proceedings on treaties...............   119
        Action on receipt of treaty from the president...........   119
    B. Foreign Relations Committee consideration.................   122
    C. Conditional approval......................................   124
        Types of conditions......................................   124
        Condition regarding treaty interpretation................   128
        Condition regarding supremacy of the Constitution........   131
    D. Resolution of ratification................................   136
     E. Senate floor procedure...................................   136
        Executive session........................................   136
         Non-controversial treaties..............................   137
         Controversial treaties..................................   138
        Consideration of treaties under cloture..................   141
         Final vote..............................................   142
         Failure to receive two-thirds majority..................   143
     F. Return or withdrawal.....................................   145
VII. Presidential options on treaties after Senate action........   147
    A. Ratification..............................................   147
        Ratification of the treaty...............................   147
        Exchange or deposit of instruments of ratification (entry 
          into force)............................................   149
    B. Resubmission of the treaty or submission of protocol......   150
    C. Inaction or refusal to ratify.............................   152
        Procedure when other nations attach new conditions.......   153
VIII. Dispute settlement, rules of interpretation, and obligation 
  to implement...................................................   157
    A. Dispute settlement........................................   157
        Conciliation.............................................   158
        Arbitration..............................................   159
        Judicial settlement......................................   161
    B. Rules of interpretation...................................   163
    C. Obligation to implement...................................   166
IX. Amendment or modification, extension, suspension, and 
  termination of treaties and other international agreements.....   171
    A. Introduction..............................................   171
    B. Amendment and modification................................   176
        Treaties.................................................   176
        Executive agreements.....................................   183
    C. Extension.................................................   184
        Treaties.................................................   184
        Executive agreements.....................................   187
    D. Suspension................................................   187
        Treaties.................................................   187
        Executive agreements.....................................   192
    E. Termination or withdrawal.................................   192
        Treaties.................................................   192
            Terms of treaty; unanimous consent...................   192
            Breach...............................................   193
            Impossibility of performance.........................   194
            Rebus sic stantibus..................................   194
            Jus cogens...........................................   195
            Severance of diplomatic relations....................   195
            Hostilities..........................................   196
            State succession.....................................   196
    F. U.S. law and practice in terminating international 
      agreements.................................................   198
        General..................................................   198
        Treaties.................................................   201
            Executive action pursuant to prior authorization or 
              direction by the Congress..........................   202
            Executive action pursuant to prior authorization or 
              direction by the Senate............................   204
            Executive action without prior specific authorization 
              or direction, but with subsequent approval by the 
              Congress...........................................   205
            Executive action without specific prior authorization 
              or direction, but with subsequent approval by the 
              Senate.............................................   205
            Executive action without specific prior authorization 
              or direction, and without subsequent approval by 
              either the Congress or the Senate..................   206
        Executive agreements.....................................   208
X. Congressional oversight of international agreements...........   209
    A. The Case Act..............................................   209
         Origins.................................................   210
             Provisions for publication..........................   210
             The Bricker amendment and its legacy................   212
             National commitments concerns.......................   213
             Military base agreements (Spain, Portugal, Bahrain).   215
             Separation of Powers Subcommittee approach..........   216
         Intent and content of the Case Act......................   217
         Implementation, 1972-1976...............................   218
         Amendments of the Case Act, 1977-1978...................   222
         Committee procedures under the Case Act.................   224
             Senate Foreign Relations Committee procedures.......   224
             House International Relations Committee procedures..   225
         Impact and assessment of the Case Act...................   225
             Number of agreements transmitted....................   226
             Late transmittal of Case Act agreements.............   228
             Insufficient transmittal of agreements to Congress..   230
             Pre-Case Act executive agreements...................   232
     B. Consultations on form of agreement.......................   233
     C. Congressional review or approval of agreements...........   235
     D. Required reports to Congress.............................   238
     E. Other tools of congressional oversight...................   239
         Implementation legislation..............................   240
         Recommendations in legislation..........................   240
         Consultation requirements...............................   242
         Oversight hearings......................................   243
XI. Trends in major categories of treaties.......................   245
    A. Political and security agreements.........................   246
        National security and defense commitments................   247
            Treaty on the Final Settlement with Respect to 
              Germany............................................   250
            Maritime Boundary Agreement with the Soviet Union....   251
        Arms control treaties....................................   251
            INF Treaty...........................................   254
            Threshold Test Ban Treaty and Protocol...............   256
            CFE Treaty...........................................   257
            CFE Flank Agreement..................................   257
            START I Treaty.......................................   258
            START II.............................................   260
            Open Skies Treaty....................................   261
            Chemical Weapons Convention..........................   261
            Comprehensive Test Ban Treaty........................   262
    B. Economic treaties.........................................   265
        Friendship, commerce, and navigation treaties............   265
        Investment treaties......................................   266
        Consular conventions.....................................   269
        Tax conventions..........................................   270
            Treaty shopping......................................   271
            Exchange of information..............................   272
            Allocation of income of multinational business 
              enterprises........................................   272
            Taxation of equipment rentals........................   272
            Arbitration of competent authority issues............   272
            Insurance excise tax.................................   273
    C. Environmental treaties....................................   273
        No-reservations clauses..................................   274
        Fishery conventions......................................   276
    D. Legal cooperation.........................................   278
        Extradition treaties.....................................   278
        Mutual legal assistance treaties.........................   282
    E. Human rights conventions..................................   285
        Genocide Convention......................................   287
        Labor conventions........................................   288
        Convention Against Torture...............................   290
        Civil and Political Rights Covenant......................   291
        Racial Discrimination Convention.........................   292
        Other human rights treaties..............................   293

                               Appendixes

1. Treaties and other international agreements: an annotated 
  bibliography...................................................   295
    A. Introduction..............................................   295
    B. International agreements and international law............   295
        1. Overview..............................................   295
            a. General...........................................   295
            b. Treaties and agreements involving international 
              organizations......................................   298
        2. Negotiation and conclusion of treaties and 
          international agreements...............................   299
            a. Negotiation and the treatymaking process..........   299
                (1) General......................................   299
                (2) Multilateral treaties........................   299
            b. Amendments, interpretive declarations, and 
              reservations.......................................   300
            c. Acceptance, depositary, registration and 
              publication........................................   301
                (1) Acceptance...................................   301
                (2) Depositary...................................   301
                (3) Registration and publication.................   302
        3. Entry into force......................................   302
        4. Interpretation........................................   303
        5. Modification, suspension, and termination of treaties.   307
            a. Overview..........................................   307
            b. Questions of treaty validity......................   310
        6. Dispute settlement....................................   312
        7. Succession of states..................................   313
    C. International agreements and U.S. law.....................   314
        1. General...............................................   314
        2. Congressional and Presidential roles in the making of 
          treaties and international agreements..................   319
        3. Communication of international agreements to Congress.   330
        4. U.S. termination of treaties..........................   332
    D. Guides....................................................   334
        1. Guides to resources on treaties.......................   334
        2. Compilations of treaties, and indexes international in 
          scope..................................................   335
        3. U.S. treaties and the treatymaking process............   338
            a. Sources for treaty information throughout the 
              treatymaking process...............................   338
                CIS/index........................................   338
                Congressional Index..............................   338
                Congressional Record.............................   341
                Executive Journal of the Senate..................   341
                Senate executive reports.........................   341
                Senate Foreign Relations Committee calendar......   341
                Senate treaty documents..........................   341
                Department of State Dispatch.....................   341
                Department of State Bulletin.....................   341
                Foreign Policy Bulletin..........................   342
                Department of State Press Releases...............   342
                Federal Register.................................   342
                Monthly Catalog..................................   342
                Shepard's United States Citations--Statutes 
                  Edition........................................   342
                Statutes at Large................................   342
                Weekly Compilation of Presidential Documents.....   343
            b. Official treaty series............................   343
                TIAS.............................................   343
                UST..............................................   343
            c. Indexes and retrospective compilations............   343
                Current..........................................   343
                1950+............................................   344
                1776-1949........................................   344
                1776-1949 (Bevans)...............................   344
                1776-1931 (Malloy)...............................   344
                1776-1863 (Miller)...............................   344
            d. Status of treaties................................   345
                Treaties in force................................   345
                Unperfected treaties.............................   345
                Additional information...........................   345
        4. Topical collections...................................   346
            a. Diplomatic and national security issues...........   346
            b. Economic and commercial issues....................   347
            c. International environmental issues and management 
              of common areas....................................   348
2. Case-Zablocki Act on Transmittal of International Agreements 
  and Related Reporting Requirements.............................   349
3. Coordination and reporting of international agreements, State 
  Department regulations.........................................   351
4. Department of State Circular 175 Procedures on Treaties.......   357
    710 Purpose and disclaimer...................................   357
    711 Purpose (state only).....................................   357
    712 Disclaimer (state only)..................................   357
    720 Negotiation and signature................................   357
    721 Exercise of the international agreement power............   358
    722 Action required in negotiation and/or signature of 
      treaties and agreements....................................   359
    723 Responsibility of office or officer conducting 
      negotiations...............................................   361
    724 Transmission of international agreements other than 
      treaties to Congress: compliance with the Case-Zablocki Act   364
    725 Publication of treaties and other international 
      agreements of the United States............................   364
    730 Guidelines for concluding international agreements.......   364
    731 Conformity of texts......................................   366
    732 Exchange or exhibition of full powers....................   366
    733 Signature and sealing....................................   366
    734 Exchange of ratifications................................   367
    740 Multilateral treaties and agreements.....................   367
    741 Official and working languages...........................   368
    742 Engrossing...............................................   369
    743 Full powers..............................................   370
    744 Signature and sealing....................................   370
    745 Disposition of final documents of conference.............   370
    746 Procedure following signature............................   371
    750 Responsibilities of the Assistant Legal Adviser for 
      Treaty Affairs.............................................   371
5. The Vienna Convention on the Law of Treaties, Senate Ex. L, 
  92d Congress 1st Session, with list of signatures, 
  ratifications and accessions deposited as of December 11, 2000.   375
    Letter of transmittal........................................   377
    Letter of submittal..........................................   378
    Vienna Convention on the Law of Treaties.....................   384
    List of signatures, ratifications deposited and accessions 
      deposited as of December 11, 2000..........................   407
6. Glossary of treaty terminology................................   411
7. Simultaneous consideration of treaties and amending protocols.   415
    1. Treaty with Mexico Relating to Utilization of the Waters 
      of Certain Rivers (Ex. A, 78-2, and Ex. H, 78-2)...........   415
    2. Convention Between France and the United States as to 
      Double Taxation and Fiscal Assistance and Supplementary 
      Protocol (S. Ex. A, 80-1 and S. Ex. G, 80-2)...............   415
    3. Tax Convention with Canada and Two Protocols (Ex. T, 96-2; 
      Treaty Doc. 98-7; and Treaty Doc. 98-22)...................   416
    4. Treaties with the U.S.S.R. on the Limitation of 
      Underground Nuclear Weapon Tests and on Underground Nuclear 
      Explosions for Peaceful Purposes and Protocols (Ex. N, 94-
      2; and Treaty Doc. 101-19).................................   416
8. Treaties approved by the Senate...............................   417
    2000.........................................................   417
    1999.........................................................   420
    1998.........................................................   422
    1997.........................................................   425
    1996.........................................................   426
    1995.........................................................   429
    1994.........................................................   430
    1993.........................................................   430
9. Treaties rejected by the Senate...............................   433
    1999.........................................................   433
10. Letter of response from Acting Director Thomas Graham, Jr. to 
  Senator Pell accepting the narrow interpretation of the ABM 
  Treaty.........................................................   435

                                 Tables

II-1. Treaties and executive agreements concluded by the United 
  States, 1789-1989..............................................    39
II-2. Treaties and executive agreements concluded by the United 
  States, 1930-1999..............................................    39
X-1. Transmittal of executive agreements to Congress, 1978-1999..   226
X-2. Agencies submitting agreements late, 1979-1999..............   229
X-3. Statutory requirements for transmittal of agreements to 
  Congress.......................................................   236
X-4. Required reports related to international agreements........   239
X-5. Legislation implementing treaties...........................   241
XI-1. Human rights treaties pending on the Senate Foreign 
  Relations Committee calendar...................................   286
A1-1. Publications providing information on U.S. treaties 
  throughout the treatymaking process............................   339

                                 Charts

1. Steps in the making of a treaty...............................     8
2. Steps in the making of an executive agreement.................    10


                           INTRODUCTORY NOTE

                              ----------                              

    This study revises a report bearing the same title 
published in 1993. It is intended to provide a reference volume 
for use by the U.S. Senate in its work of advising and 
consenting to treaties. It summarizes international and U.S. 
law on treaties and other international agreements. It traces 
the process of making treaties through the various stages from 
their initiation and negotiation to ratification, entry into 
force, implementation and oversight, modification or 
termination--describing the respective senatorial and 
Presidential roles at each stage. The study also provides 
background information on issues concerning the Senate role in 
treaties and other international agreements through specialized 
discussions in individual chapters. The appendix contains, 
among other things, a glossary of frequently used terms, 
important documents related to treaties: the Vienna Convention 
on the Law of Treaties (unratified by the United States); State 
Department Circular 175 describing treaty procedures in the 
executive branch; the State Department regulation, 
``Coordination and Reporting of International Agreements,'' and 
material related to the Case-Zablocki Act on the reporting of 
international agreements to Congress. Also included are a list 
of treaties approved by the Senate from January 1993 through 
October 2000, examples of treaty documents, and an annotated 
bibliography.


                 I. OVERVIEW OF THE TREATY PROCESS \1\
---------------------------------------------------------------------------

    \1\ Prepared by Richard F. Grimmett, Specialist in National 
Defense.
---------------------------------------------------------------------------
                              ----------                              

    Treaties are a serious legal undertaking both in 
international and domestic law. Internationally, once in force, 
treaties are binding on the parties and become part of 
international law. Domestically, treaties to which the United 
States is a party are equivalent in status to Federal 
legislation, forming part of what the Constitution calls ``the 
supreme Law of the Land.''
    However, the word treaty does not have the same meaning in 
the United States and in international law. Under international 
law, a ``treaty'' is any legally binding agreement between 
nations. In the United States, the word treaty is reserved for 
an agreement that is made ``by and with the Advice and Consent 
of the Senate'' (Article II, Section 2, Clause 2 of the 
Constitution). International agreements not submitted to the 
Senate are known as ``executive agreements'' in the United 
States, but they are considered treaties and therefore binding 
under international law.
    For various reasons, Presidents have increasingly concluded 
executive agreements. Many agreements are previously authorized 
or specifically approved by legislation, and such 
``congressional-executive'' or statutory agreements have been 
treated almost interchangeably with treaties in several 
important court cases. Others, often referred to as ``sole 
executive agreements,'' are made pursuant to inherent powers 
claimed by the President under Article II of the Constitution. 
Neither the Senate nor the Congress as a whole is involved in 
concluding sole executive agreements, and their status in 
domestic law is not fully resolved.
    Questions on the use of treaties, congressional-executive 
agreements, and sole executive agreements underlie many issues. 
Therefore, any study of the Senate role in treaties must also 
deal with executive agreements. Moreover, the President, the 
Senate, and the House of Representatives have different 
institutional interests at stake, a fact which periodically 
creates controversy. Nonetheless, the President, Senate, and 
House share a common interest in making international 
agreements that are in the national interest in the most 
effective and efficient manner possible.
    The requirement for the Senate's advice and consent gives 
the Senate a check over all international agreements submitted 
to it as treaties. The Senate may refuse to give its approval 
to a treaty or do so only with specified conditions, 
reservations, or understandings. In addition, the knowledge 
that a treaty must be approved by a two-thirds majority in the 
Senate may influence the content of the document before it is 
submitted. Even so, the Senate has found it must be vigilant if 
it wishes to maintain a meaningful role in treaties that are 
submitted.
    The main threat of erosion of the Senate treaty power comes 
not from the international agreements that are submitted as 
treaties, however, but from the many international agreements 
that are not submitted for its consent. In addition to 
concluding hundreds of executive agreements, Presidents have 
made important commitments that they considered politically 
binding but not legally binding. Maintaining the Senate role in 
treaties requires overseeing all international agreements to 
assure that agreements that should be treaties are submitted to 
the Senate.

                             A. Background

                  the evolution of the senate role \2\
---------------------------------------------------------------------------

    \2\ See Chapters II and VI for references and additional 
discussion.
---------------------------------------------------------------------------
    The Constitution states that 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.'' The Convention that drafted the Constitution did not 
spell out more precisely what role it intended for the Senate 
in the treatymaking process. Most evidence suggests that it 
intended the sharing of the treaty power to begin early, with 
the Senate helping to formulate instructions to negotiators and 
acting as a council of advisers to the President during the 
negotiations, as well as approving each treaty entered into by 
the United States. The function of the Senate was both to 
protect the rights of the states and to serve as a check 
against the President's taking excessive or undesirable actions 
through treaties. The Presidential function in turn was to 
provide unity and efficiency in treatymaking and to represent 
the national interest as a whole.
    The treaty clause of the Constitution does not contain the 
word ratification, which refers to the formal act by which a 
nation affirms its willingness to be bound by a specific 
treaty. From the beginning, the formal act of ratification has 
been performed by the President acting ``by and with the advice 
and consent of the Senate.'' The President ratifies the treaty, 
but, only after receiving the advice and consent of the Senate.
    When the Constitution was drafted, the ratification of a 
treaty was generally considered obligatory by the nations 
entering into it if the negotiators stayed within their 
instructions. Therefore Senate participation during the 
negotiations stage seemed essential if the Senate was to play a 
meaningful constitutional role. At the time, such direct 
participation by the Senate also seemed feasible, since the 
number of treaties was not expected to be large and the 
original Senate contained only 26 Members.
    Within several years, however, problems were encountered in 
treatymaking and Presidents abandoned the practice of regularly 
getting the Senate's advice and consent on detailed questions 
prior to negotiations. Instead, Presidents began to submit the 
completed treaty after its conclusion. Since the Senate had to 
be able to advise changes or deny consent altogether if its 
role was to be meaningful, the doctrine of obligatory 
ratification was for all practical purposes abandoned.
    Although Senators sometimes play a part in the initiation 
or development of a treaty, the Senate role now is primarily to 
pass judgment on whether completed treaties should be ratified 
by the United States. The Senate's advice and consent is asked 
on the question of Presidential ratification. When the Senate 
considers a treaty it may approve it as written, approve it 
with conditions, reject and return it, or prevent its entry 
into force by withholding approval. In practice the Senate 
historically has given its advice and consent unconditionally 
to the vast majority of treaties submitted to it.
    In numerous cases, the Senate has approved treaties subject 
to conditions. The President has usually accepted the Senate 
conditions and completed the ratification process. In some 
cases, treaties have been approved with reservations that were 
unacceptable either to the President or the other party, and 
the treaties never entered into force.\3\
---------------------------------------------------------------------------
    \3\ These include treaties on income taxation with Thailand, signed 
March 1965, and Brazil, signed March 13, 1967.
---------------------------------------------------------------------------
    Only on rare occasions has the Senate formally rejected a 
treaty. The most famous example is the Versailles Treaty, which 
was defeated on March 19, 1920, although 49 Senators voted in 
favor and 35 against. This was a majority but not the required 
two-thirds majority so the treaty failed. Since then, the 
Senate has definitively rejected only three treaties.\4\ In 
addition, the Senate sometimes formally rejects treaties but 
keeps them technically alive by adopting or entering a motion 
to reconsider. This has happened, for instance, with the 
Optional Protocol Concerning the Compulsory Settlement of 
Disputes in 1960, the Montreal Aviation Protocols Nos. 3 and 4 
in 1983, and the Comprehensive Test Ban Treaty in 1999.
---------------------------------------------------------------------------
    \4\ Treaty on General Relations with Turkey, January 18, 1927; St. 
Lawrence Waterway Treaty with Canada, July 18, 1932 (the St. Lawrence 
Seaway was subsequently approved by legislation); and adherence to the 
Permanent Court of International Justice, January 29, 1935.
---------------------------------------------------------------------------
    More often the Senate has simply not voted on treaties that 
did not have enough support for approval, and the treaties 
remained pending in the Foreign Relations Committee for long 
periods. Eventually, unapproved treaties have been replaced by 
other treaties, amended by protocols and then approved, or 
withdrawn by or returned to the President. Thus the Senate has 
used its veto sparingly, but still demonstrated the necessity 
of its advice and consent and its power to block a treaty from 
entering into force.

                  treaties under international law \5\
---------------------------------------------------------------------------

    \5\ See Chapter III for references and additional discussion.
---------------------------------------------------------------------------
    Under international law an international agreement is 
generally considered to be a treaty and binding on the parties 
if it meets four criteria:
    (1) The parties intend the agreement to be legally binding 
and the agreement is subject to international law;
    (2) The agreement deals with significant matters;
    (3) The agreement clearly and specifically describes the 
legal obligations of the parties; and
    (4) The form indicates an intention to conclude a treaty, 
although the substance of the agreement rather than the form is 
the governing factor.
    International law makes no distinction between treaties and 
executive agreements. Executive agreements, especially if 
significant enough to be reported to Congress under the Case-
Zablocki Act, are to all intents and purposes binding treaties 
under international law.\6\
---------------------------------------------------------------------------
    \6\ The Case-Zablocki Act (Public Law 92-403, as amended), is also 
examined in Chapter X. See Appendix 2 for text of the law.
---------------------------------------------------------------------------
    On the other hand, many international undertakings and 
foreign policy statements, such as unilateral statements of 
intent, joint communiques, and final acts of conferences, are 
not intended to be legally binding and are not considered 
treaties.

                      treaties under u.s. law \7\
---------------------------------------------------------------------------

    \7\ See Chapter IV for references and additional discussion. See 
also Chapter X.
---------------------------------------------------------------------------
    Under the Constitution, a treaty, like a Federal statute, 
is part of the ``supreme Law of the Land.'' Self-executing 
treaties, those that do not require implementing legislation, 
automatically become effective as domestic law immediately upon 
entry into force. Other treaties do not become effective as 
domestic law until implementing legislation is enacted, and 
then technically it is the legislation, not the treaty unless 
incorporated into the legislation, that is the law of the land.
    Sometimes it is not clear on the face of a treaty whether 
it is self-executing or requires implementing legislation. Some 
treaties expressly call for implementing legislation or deal 
with subjects clearly requiring congressional action, such as 
the appropriation of funds or enactment of domestic penal 
provisions. The question of whether or not a treaty requires 
implementing legislation or is self-executing is a matter of 
interpretation largely by the executive branch or, less 
frequently, by the courts. On occasion, the Senate includes an 
understanding in the resolution of ratification that certain 
provisions are not self-executing or that the President is to 
exchange or deposit the instrument of ratification only after 
implementation legislation has been enacted.
    When a treaty is deemed self-executing, it overrides any 
conflicting provision of the law of an individual signatory 
state. If a treaty is in irreconcilable conflict with a Federal 
law, the one executed later in time prevails, although courts 
generally try to harmonize domestic and international 
obligations whenever possible.

                executive agreements under u.s. law \8\
---------------------------------------------------------------------------

    \8\ See Chapter IV for references and additional discussion. See 
also Chapter X.
---------------------------------------------------------------------------
    The status in domestic law of executive agreements, that 
is, international agreements made by the executive branch but 
not submitted to the Senate for its advice and consent, is less 
clear. Three types of executive agreements and their domestic 
legal status are discussed below.
(1) Congressional-executive agreements
    Most executive agreements are either explicitly or 
implicitly authorized in advance by Congress or submitted to 
Congress for approval. Some areas in which Congress has 
authorized the conclusion of international agreements are 
postal conventions, foreign trade, foreign military assistance, 
foreign economic assistance, atomic energy cooperation, and 
international fishery rights. Sometimes Congress has authorized 
conclusion of agreements but required the executive branch to 
submit the agreements to Congress for approval by legislation 
or for a specified waiting period before taking effect. 
Congress has also sometimes approved by joint resolution 
international agreements involving matters that are frequently 
handled by treaty, including such subjects as participation in 
international organizations, arms control measures, and 
acquisition of territory. The constitutionality of this type of 
agreement seems well established and Congress has authorized or 
approved them frequently,
(2) Agreements pursuant to treaties
    Some executive agreements are expressly authorized by 
treaty or an authorization for them may be reasonably inferred 
from the provisions of a prior treaty. Examples include 
arrangements and understandings under the North Atlantic Treaty 
and other security treaties. The President's authority to 
conclude agreements pursuant to treaties seems well 
established, although controversy occasionally arises over 
whether particular agreements are within the purview of an 
existing treaty.
(3) Presidential or sole executive agreements
    Some executive agreements are concluded solely on the basis 
of the President's independent constitutional authority and do 
not have an underlying explicit or implied authorization by 
treaty or statute. Authorities from the Constitution that 
Presidents claim as a basis for such agreements include:
  --The President's general executive authority in Article II, 
        Section 1, of the Constitution;
  --His power as Commander in Chief of the Army and Navy in 
        Article II, Section 2, Clause 1;
  --The treaty clause itself for agreements, which might be 
        part of the process of negotiating a treaty in Article 
        II, Section 2, Clause 2;
  --His authority to receive Ambassadors and other public 
        Ministers in Article II, Section 3; and
  --His duty to ``take care that the laws be faithfully 
        executed'' in Article II, Section 3.
    Courts have indicated that executive agreements based 
solely on the President's independent constitutional authority 
can supersede conflicting provisions of state law, but opinions 
differ regarding the extent to which they can supersede a prior 
act of Congress. What judicial authority exists seems to 
indicate that they cannot.

 steps in the u.s. process of making treaties and executive agreements

    Phases in the life of a treaty include negotiation and 
conclusion, consideration by the Senate, Presidential 
ratification, implementation, modification, and termination. 
Following is a discussion of the major steps and the roles of 
the President and the Senate in each phase.
    Executive agreements are negotiated and concluded in the 
same way as treaties, but they do not go through the procedure 
for advice and consent of the Senate. Some executive agreements 
are submitted to the Congress for approval and most are to be 
transmitted to Congress after their conclusion. (See charts 1 
and 2.)
Negotiation and conclusion \9\
---------------------------------------------------------------------------
    \9\ See Chapter V for references and additional discussion.
---------------------------------------------------------------------------
    The first phase of treatymaking, negotiation and 
conclusion, is widely considered an exclusive prerogative of 
the President except for making appointments which require the 
advice and consent of the Senate. The President chooses and 
instructs the negotiators and decides whether to sign an 
agreement after its terms have been negotiated. Nevertheless, 
the Senate or Congress sometimes proposes negotiations and 
influences them through advice and consultation. In addition, 
the executive branch is supposed to advise appropriate 
congressional leaders and committees of the intention to 
negotiate significant new agreements and consult them as to the 
form of the agreement.
    Steps in the negotiating phase follow.
    (1) Initiation.--The executive branch formally initiates 
the negotiations. The original concept or proposal for a treaty 
on a particular subject, however, may come from Congress.
    (2) Appointment of negotiators.--The President selects the 
negotiators of international agreements, but appointments may 
be subject to the advice and consent of the Senate. 
Negotiations are often conducted by ambassadors or foreign 
service officers in a relevant post who have already been 
confirmed by the Senate.
    (3) Issuance of full powers and instructions.--The 
President issues full power documents to the negotiators, 
authorizing them officially to represent the United States. 
Similarly, he issues instructions as to the objectives to be 
sought and positions to be taken. On occasion the Senate 
participates in setting the objectives during the confirmation 
process, or Congress contributes to defining the objectives 
through hearings or resolutions.
    (4) Negotiation.--Negotiation is the process by which 
representatives of the President and other governments 
concerned agree on the substance, terms, wording, and form of 
an international agreement. Members of Congress sometimes 
provide advice through consultations arranged either by 
Congress or the executive branch, and through their statements 
and writings. Members of Congress or their staff have served as 
members or advisers of delegations and as observers at 
international negotiations.
    (5) Conclusion.--The conclusion or signing marks the end of 
the negotiating process and indicates that the negotiators have 
reached agreement. In the case of a treaty the term 
``conclusion'' is a misnomer in that the agreement does not 
enter into force until the exchange or deposit of 
ratifications. In the case of executive agreements, however, 
the signing and entry into force are frequently simultaneous.
Consideration by the Senate \10\
---------------------------------------------------------------------------
    \10\ See Chapter VI for references and additional discussion. 
Chapter VI also contains the text of Senate Rule XXX.
---------------------------------------------------------------------------
    A second phase begins when the President transmits a 
concluded treaty to the Senate and the responsibility moves to 
the Senate. Following are the main steps during the Senate 
phase.
    (1) Presidential submission.--The Secretary of State 
formally submits treaties to the President for transmittal to 
the Senate. A considerable time may elapse between signature 
and submission to the Senate, and on rare occasions a treaty 
signed on behalf of the United States may never be submitted to 
the Senate at all and thus never enter into force for the 
United States. When transmitted to the Senate, treaties are 
accompanied by a Presidential message consisting of the text of 
the treaty, a letter of transmittal requesting the advice and 
consent of the Senate, and the earlier letter of submittal of 
the Secretary of State which usually contains a detailed 
description and analysis of the treaty.
    (2) Senate receipt and referral.--The Parliamentarian 
transmits the treaty to the Executive Clerk, who assigns it a 
document number. The Majority Leader then, as in executive 
session, asks the unanimous consent of the Senate that the 
injunction of secrecy be removed, that the treaty be considered 
as having been read the first time, and that it be referred to 
the Foreign Relations Committee and ordered to be printed. The 
Presiding Officer then refers the treaty, regardless of its 
subject matter, to the Foreign Relations Committee in 
accordance with Rule XXV of the Senate Rules. (Rule XXV makes 
an exception only for reciprocal trade agreements.) At this 
point the treaty text is printed and made available to the 
public.
    (3) Senate Foreign Relations Committee action.--The treaty 
is placed on the committee calendar and remains there until the 
committee reports it to the full Senate. While it is committee 
practice to allow a treaty to remain pending long enough to 
receive study and comments from the public, the committee 
usually considers a treaty within a year or two, holding a 
hearing and preparing a written report.
    The committee recommends Senate advice and consent by 
reporting a treaty with a proposed resolution of ratification. 
While most treaties have historically been reported without 
conditions, the committee may recommend that the Senate approve 
a treaty subject to conditions incorporated in the resolution 
of ratification.
    (4) Conditional approval.--The conditions traditionally 
have been grouped into categories described in the following 
way.
  --Amendments to a treaty change the text of the treaty and 
        require the consent of the other party or parties. 
        (Note that in Senate debate the term may refer to an 
        amendment of the resolution of ratification, not the 
        treaty itself, and therefore be comprised of some other 
        type of condition.)
        [GRAPHIC] [TIFF OMITTED] T6922.001
        
        [GRAPHIC] [TIFF OMITTED] T6922.002
        
        [GRAPHIC] [TIFF OMITTED] T6922.003
        
  --Reservations change U.S. obligations without necessarily 
        changing the text, and they require the acceptance of 
        the other party.
  --Understandings are interpretive statements that clarify or 
        elaborate provisions but do not alter them.
  --Declarations are statements expressing the Senate's 
        position or opinion on matters relating to issues 
        raised by the treaty rather than to specific 
        provisions.
  --Provisos relate to issues of U.S. law or procedure and are 
        not intended to be included in the instruments of 
        ratification to be deposited or exchanged with other 
        countries.
    Whatever name a condition is given by the Senate, if a 
condition alters an international obligation under the treaty, 
the President is expected to transmit it to the other party. In 
recent years, the Senate on occasion has explicitly designated 
that some conditions were to be transmitted to the other party 
or parties and, in some cases, formally agreed to by them. It 
has also designated that some conditions need not be formally 
communicated to the other party, that some conditions were 
binding on the President, and that some conditions expressed 
the intent of the Senate.
    (5) Action by the full Senate.--After a treaty is reported 
by the Foreign Relations Committee, it is placed on the 
Senate's Executive Calendar and the Majority Leader arranges 
for the Senate to consider it. In 1986 the Senate amended Rule 
XXX of the Senate Rules, which governs its consideration of 
treaties, to simplify the procedure in this step. Still, under 
the full procedures of the revised Rule XXX, in the first stage 
of consideration the treaty would be read a second time and any 
proposed amendments to the treaty itself would be considered 
and voted upon by a simple majority. Usually the Majority 
Leader obtains unanimous consent to abbreviate the procedures, 
and the Senate proceeds directly to the consideration of the 
resolution of ratification as recommended by the Foreign 
Relations Committee.
    The Senate then considers amendments to the resolution of 
ratification, which would incorporate any amendments to the 
treaty itself that the Senate had agreed to in the first stage, 
as well as conditions recommended by the Foreign Relations 
Committee. Senators may then offer reservations, 
understandings, and other conditions to be placed in the 
resolution of ratification. Votes on these conditions, as well 
as other motions, are determined by a simple majority. Finally, 
the Senate votes on the resolution of ratification, as it has 
been amended. The final vote on the resolution of ratification 
requires, for approval, a two-thirds majority of the Senators 
present. Although the number of Senators who must be present is 
not specified, the Senate's practice with respect to major 
treaties is to conduct the final treaty vote at a time when 
most Senators are available. After approval of a controversial 
treaty, a Senator may offer a motion to reconsider which is 
usually laid on the table (defeated). In the case of a treaty 
that has failed to receive a two-thirds majority, if the motion 
to reconsider is not taken up, the treaty is returned to the 
Foreign Relations Committee. Prior to the final vote on the 
resolution of ratification, a Senator may offer a substitute 
amendment, proposing that the Senate withhold its advice and 
consent, or offer a motion to recommit the resolution to the 
Foreign Relations Committee.
    (6) Return to committee.--Treaties reported by the 
committee but neither approved nor formally returned to the 
President by the Senate are automatically returned to the 
committee calendar at the end of a Congress; the committee must 
report them out again in order for the Senate to consider them.
    (7) Return to President or withdrawal.--The President may 
request the return of a treaty, or the Foreign Relations 
Committee may report and the Senate adopt a simple resolution 
directing the Secretary of the Senate to return a treaty to the 
President. Otherwise, treaties that do not receive the advice 
and consent of the Senate remain pending on the committee 
calendar indefinitely.
Presidential action after Senate action \11\
---------------------------------------------------------------------------
    \11\ See Chapter VII for references and additional discussion.
---------------------------------------------------------------------------
    After the Senate gives its advice and consent to a treaty, 
the Senate sends it to the President. He resumes control and 
decides whether to take further action to complete the treaty.
    (1) Ratification.--The President ratifies a treaty by 
signing an instrument of ratification, thus declaring the 
consent of the United States to be bound. If the Senate has 
consented with reservations or conditions that the President 
deems unacceptable, he may at a later date resubmit the 
original treaty to the Senate for further consideration, or he 
may renegotiate it with the other parties prior to 
resubmission. Or the President may decide not to ratify the 
treaty because of the conditions or for any other reason.
    (2) Exchange or deposit of instruments of ratification and 
entry into force.--If he ratifies the treaty, the President 
then directs the Secretary of State to take any action 
necessary for the treaty to enter into force. A bilateral 
treaty usually enters into force when the parties exchange 
instruments of ratification. A multilateral treaty enters into 
force when the number of parties specified in the treaty 
deposit the instruments of ratification at a specified 
location. Once a treaty enters into force, it is binding in 
international law on the parties who have ratified it.
    (3) Proclamation.--When the instruments of ratification 
have been exchanged or the necessary number deposited, the 
President issues a proclamation that the treaty has entered 
into force. Proclamation serves as legal notice for domestic 
purposes and publicizes the text.
Implementation \12\
---------------------------------------------------------------------------
    \12\ See Chapter VIII for references and additional discussion.
---------------------------------------------------------------------------
    The executive branch has the primary responsibility for 
carrying out treaties and ascertaining that other parties 
fulfill their obligations after treaties and other 
international agreements enter into force, but the Senate or 
the entire Congress share in the following phases.
    (1) Implementing legislation.\13\--When implementing 
legislation or appropriations are needed to carry out the terms 
of a treaty, it must go through the full legislative process 
including passage by both Houses and presentment to the 
President.
---------------------------------------------------------------------------
    \13\ In addition to Chapter VIII, see Chapter X.
---------------------------------------------------------------------------
    (2) Interpretation.\14\--The executive branch interprets 
the requirements of an agreement as it carries out its 
provisions. U.S. courts may also interpret a treaty's effect as 
domestic law in appropriate cases. The Senate has made clear 
that the United States is to interpret the treaty in accordance 
with the common understanding of the treaty shared by the 
President and the Senate at the time the Senate gave its advice 
and consent. This common understanding is based on the text of 
the treaty, the provisions of the resolution of ratification, 
and the authoritative representations provided by the executive 
branch to the Senate during its consideration. The Senate has 
further specified that the United States is not to agree to or 
adopt an interpretation different from the common understanding 
except pursuant to Senate advice and consent or enactment of a 
statute.
---------------------------------------------------------------------------
    \14\ In addition to Chapter VIII, see Chapter VI, and discussion of 
INF Treaty in Chapter XI.
---------------------------------------------------------------------------
    (3) Settlement of international disputes.--When disputes 
arise between parties on the interpretation of a treaty or on 
the facts relating to compliance with the obligations of a 
treaty, the executive branch usually conducts negotiations 
aimed at resolving differences in interpretation. Treaties 
sometimes provide for formal procedures or mechanisms for 
dispute settlement. Members of Congress have sometimes played 
an important role by overseeing implementation of a treaty, 
bringing about public discussion of compliance issues, and 
urging procedures to resolve international disputes.
Modification, extension, suspension, or termination \15\
---------------------------------------------------------------------------
    \15\ See Chapter IX for references and additional discussion.
---------------------------------------------------------------------------
    Modifying and extending an international agreement amount 
to the making of a new agreement that should be done by the 
same method as the original agreement. For treaties, this means 
with the advice and consent of the Senate. Practice on 
termination, however, has not been consistent.
    (1) Modification.--At the international level, treaties are 
amended by agreement of the parties or in accordance with their 
terms. In the United States, amendments to treaties are 
ordinarily submitted to the Senate for its advice and consent, 
unless the treaty provides for modification in some other way. 
Less formal modifications have been made by executive 
agreements or decisions.
    (2) Extension.--An agreement to extend an existing 
international agreement is considered a new agreement, and 
ordinarily would be accomplished in the same fashion as the 
original, with an extension of a treaty submitted to the 
Senate.
    (3) Suspension.--The President conveys notice of suspension 
of a treaty and makes the determination that would justify 
suspension, such as a fundamental change in circumstances or 
material breach of a treaty by another party.
    (4) Termination.--At the international level, treaties 
often contain provisions regarding duration and the method of 
termination, or nations may terminate treaties by mutual 
consent. Grounds for termination include violation of the 
agreement, but violation does not automatically terminate a 
treaty.
    Domestically, the Constitution does not prescribe the 
process for the United States to terminate a treaty, and the 
process continues to be controversial. Treaties have been 
terminated in a variety of ways, including by the President 
following a joint resolution of Congress, by the President 
following action by the Senate, by the President and with 
subsequent congressional or Senate approval, and by the 
President alone.
Congressional oversight \16\
---------------------------------------------------------------------------
    \16\ See Chapter X for references and additional discussion.
---------------------------------------------------------------------------
    Congress has responsibility for overseeing the negotiation 
and conclusion of international agreements by the executive 
branch and the manner in which the executive branch interprets 
and carries out the agreements. It shares with the executive 
branch the responsibility for assessing the general 
effectiveness of international agreements at the international 
level and determining the course of action when agreements are 
not effective.
    (1) Hearings and reports.--Congress reviews actions under 
treaties and other international agreements as part of its 
responsibilities for overseeing executive branch activities. 
Senate and House rules direct committees to review the 
application of those laws within their jurisdiction, so the 
oversight function is distributed widely among the various 
committees of Congress. Methods for oversight include hearings, 
investigations, consultations, and requiring and reviewing 
reports.
    (2) Review of executive agreements.--Under the Case-
Zablocki Act, all executive agreements are to be transmitted to 
Congress within 60 days of their entry into force, including 
those that are classified for security reasons. The receipt is 
noted in the Congressional Record, and unclassified agreements 
are listed in committee publications. Members of Congress may 
read the agreements in the Senate Foreign Relations and House 
Foreign Affairs Committee offices.

                trends in senate action on treaties \17\
---------------------------------------------------------------------------

    \17\ See Chapter VI and Chapter XI for references and additional 
discussion.
---------------------------------------------------------------------------
    In recent years the Senate has endeavored both to improve 
its efficiency in handling treaties and to assure a meaningful 
role. Among steps to streamline procedures, in 1986 it amended 
Senate Rule XXX to eliminate the requirement for consideration 
by the Senate as in Committee of the Whole. It has frequently 
approved groups of treaties with a single roll call vote, or 
approved treaties by a division vote. The Senate Legis computer 
system has made it easier for Senators to obtain current 
information on action on treaties before the Senate.
    Among steps to assure a meaningful role, the Senate has 
appointed observer groups to negotiations on important 
treaties, especially in the arms control and environmental 
areas. In 1987 and 1988 the Senate reviewed the constitutional 
principles of treaty interpretation and affirmed that the 
United States should not agree to or adopt an interpretation 
different from the common understanding shared by the President 
and the Senate at the time the Senate gave its advice and 
consent to ratification, except pursuant to Senate advice and 
consent or enactment of a statute. The Senate also provided a 
system to review the negotiating record of the Intermediate 
Range Nuclear Forces (INF) Treaty. However, the Foreign 
Relations Committee said that Senate review of negotiating 
records should not become an institutionalized procedure, but 
that reference to the record on a case-by-case basis might 
sometimes be useful.
    Treaties and Senate action on them have begun to reflect 
new policy concerns since the end of the Cold War. Increased 
recognition has been given to the importance of economic 
treaties, including consular, investment, and tax agreements. 
The use of friendship, commerce, and navigation (FCN) treaties 
decreased after 1948 when the United States entered the General 
Agreement on Tariffs and Trade (GATT). Since investment matters 
were outside the scope of GATT at that time, in 1981 the United 
States began to negotiate a series of bilateral investment 
treaties (BITs). Subsequently, the Senate has given its advice 
and consent to BITs with several countries.
    Treaties providing for cooperation in bringing suspected 
criminals to trial have become increasingly important with the 
growth of transnational criminal activity, including narcotics 
trafficking, terrorism, money laundering, and export control 
violations. The two chief types are extradition treaties and a 
new series called mutual legal assistance treaties (MLATs). The 
Senate Foreign Relations Committee has supported recent 
supplementary extradition treaties and new MLATs, although 
sometimes with conditions.
    Treaties for conservation of certain species of wildlife 
and regulation of fisheries have been supplemented with broad 
treaties for environmental cooperation. Although supportive of 
environmental cooperation treaties, the Senate Foreign 
Relations Committee has expressed concern about articles 
prohibiting reservations and has cautioned that consent to 
three multilateral environmental treaties containing such 
articles should not be construed as a precedent.

         B. Issues in Treaties Submitted for Advice and Consent

    Although it can prevent a treaty from being ratified or 
attach conditions for ratification, the Senate frequently finds 
it difficult to advise on treaties effectively. Several 
obstacles to a meaningful Senate role have developed.

           request for consent without opportunity for advice

    A major problem derives from the executive branch practice 
of not submitting a treaty to the Senate until it is completed. 
Seeing the terms of the treaty only after it has been signed, 
the Senate frequently has little choice in practice except to 
consent to a treaty exactly as it has been negotiated, or to 
block it entirely. The President may present a treaty as vital 
to good relations with a nation, relations that would be set 
back immeasurably if the treaty were defeated. Or he may 
present it as a package that has been so delicately negotiated 
that the slightest change in understanding by the Senate would 
unbalance the package and kill the treaty. Or he may present it 
so late in the congressional session, or so near some type of 
international deadline, that Senate consideration in depth is 
pictured as impeding the beginning of a new beneficial regime.
    Administrations almost always discourage significant 
changes that might require renegotiation of a treaty, and the 
Senate usually defeats attempted reservations that would 
actually alter treaty obligations. Rather than adding 
reservations or attempting to amend the treaty itself, the 
Senate often addresses its concerns through understandings that 
do not alter the obligations under the treaty and therefore do 
not require renegotiation.
    The Senate has the choice of rejecting a treaty by a public 
vote, or by quietly not bringing the treaty to a vote. In 
recent years it has almost always chosen not to conduct a vote 
that might embarrass the U.S. negotiators, make the United 
States appear divided, and impair relations with other 
countries. In either event, Senate defeat of a treaty entails a 
loss of the time, energy, and in some cases U.S. international 
prestige invested in the negotiations.
    An option for avoiding defeats is legislative-executive 
consultation prior to or during negotiations. The President can 
initiate consultation through meetings or by inviting 
congressional observers to negotiations. The Senate can 
initiate consultation through hearings and other meetings or 
through resolutions or legislative directives. In the past, 
some Senators have been concerned that participating in the 
formulation of a treaty could pose a conflict of interest since 
Senators are subsequently asked to pass judgment on the 
completed treaty. With the increase in multilateral treaties 
and other developments, this concern appears to have 
diminished.

                         multilateral treaties

    The Senate's problem of not receiving a treaty until it is 
completed is particularly acute in multilateral treaties. These 
treaties are often negotiated by many nations in large 
international conferences, sometimes over a period of years. 
States make concessions in one area to obtain concessions from 
other states in other areas. The result is often an interwoven 
package that the Senate is called upon to take or leave in its 
entirety, without amendments or reservations, because 
renegotiation may not be feasible.
    Some multilateral treaties have contained an article 
prohibiting reservations. The Senate Foreign Relations 
Committee has taken the position that the executive branch 
negotiators should not agree to this prohibition. The Senate 
has given its advice and consent to a few treaties containing 
the prohibition, but the committee has stated that approval of 
these treaties should not be construed as a precedent for such 
clauses in future treaties. It has further stated that the 
President's agreement to such a clause could not constrain the 
Senate's right and obligation to attach reservations to its 
advice and consent.\18\
---------------------------------------------------------------------------
    \18\ See section on Environmental Treaties in Chapter XI.
---------------------------------------------------------------------------
    A related problem arises from reservations made by other 
nations to a multilateral treaty. Although the reservations may 
modify international obligations, the Department of State has 
not been sending the reservations to the Senate for its advice 
and consent. It has been assumed that the Senate, aware of this 
practice, tacitly consents to the U.S. acceptance of the 
reservations.\19\ Without information on the reservations, 
however, the Senate cannot estimate the size or significance of 
the problem.
---------------------------------------------------------------------------
    \19\ See section on Amendment in Chapter IX.
---------------------------------------------------------------------------
    The trend toward more multilateral agreements seems 
inevitable. The United States entered virtually no multilateral 
agreements until the late 1800s, but after 1900 multilateral 
treaties steadily increased and their subject coverage 
expanded. From 1980 through 1991 the United States entered 259 
multilateral agreements of which 79 were treaties. For the 
future, with the number of sovereign nations still growing, 
multilateral agreements on a subject offer an efficient 
alternative to bilateral agreements with 100 or 200 countries.
    The great increase in multilateral diplomacy and 
multilateral agreements is introducing another new phenomenon. 
The United States now has bilateral international agreements 
with approximately 50 international organizations. It might 
appear that the Senate would encounter the same difficulty in 
proposing modifications it does in the case of multilateral 
agreements. Renegotiation of bilateral treaties with 
multilateral organizations should be more feasible, however, 
because the United States is one of only two negotiating 
partners. Moreover, the United States is in most instances also 
a major player in the international organization, the other 
negotiating partner.

    diminishing use of treaties for major political commitments \20\
---------------------------------------------------------------------------

    \20\ See Chapter XI for references and additional discussion.
---------------------------------------------------------------------------
    At the end of World War II, treaties played an important 
part in shaping post-war U.S. foreign policy. Formal peace 
treaties were concluded with all belligerents except Germany. 
The Charters of the United Nations and the Organization of 
American States established a framework for international 
cooperation. The North Atlantic Treaty and other regional 
security treaties built a network of mutual security that 
endured throughout the Cold War.
    After 1955 the building of commitments through treaties 
appeared to halt, and many in Congress expressed concern with 
commitments made through executive action. In 1969 the Senate 
adopted the National Commitments Resolution expressing the 
sense that a national commitment ``results only from 
affirmative action taken by the executive and legislative 
branches of the U.S. Government by means of a treaty, statute, 
or concurrent resolution of both Houses of Congress 
specifically providing for such commitment.'' Yet for the rest 
of the Cold War, military and security commitments were not 
made as treaties but as executive agreements, non-binding 
political agreements, or unilateral executive branch statements 
and actions.
    Arms control treaties became the only type of agreement in 
the political-military field that have been concluded primarily 
in treaty form. In this area legislation specified that 
agreements be concluded as treaties or authorized by 
legislation, and the Senate insisted that most agreements be 
submitted as treaties. As a result, arms control treaties have 
been the main vehicle in recent years for special Senate 
influence on foreign policy.
    The end of the Cold War offers a new era in foreign policy 
comparable to that which existed at the end of World War II. As 
the agreements to provide the framework for the new era are 
concluded, the significance of the Senate's treaty power is 
again being tested. Some agreements to shape the new foreign 
policy already have been undertaken by executive agreement, 
non-binding political agreement, or unilateral executive branch 
statements or actions. In other cases, the Senate has insisted 
that agreements be concluded as treaties. Such insistence 
appears to have become necessary to ensure that significant 
political agreements are submitted as treaties.

    unilateral executive branch action to reinterpret, modify, and 
                           terminate treaties

    The Constitution is silent on procedures for modifying or 
terminating treaties, and agreement has not been reached 
between the branches on a single proper mode.\21\ The general 
rule is that international agreements are to be amended in the 
same way that they were made, thus for treaties requiring the 
advice and consent of the Senate. With the increase in numbers 
and complexity of treaties, more frequent changes and 
adjustments have become necessary. The Senate has again been 
challenged to be vigilant for unilateral executive branch 
action that might change a basic obligation agreed to in its 
advice and consent to a treaty.
---------------------------------------------------------------------------
    \21\ See Chapter IX for references and additional discussion.
---------------------------------------------------------------------------
    What portion of treaty modifications have been submitted to 
the Senate is unknown. Although certain changes have been 
routinely submitted to the Senate, such as amendments to tax 
treaties, others have been made solely by executive agreement 
or action. The most controversial unilateral action of the 
executive branch in recent years involved reinterpretation of 
the Anti-Ballistic Missile (ABM) Treaty of 1972. In 1985, the 
Reagan Administration sought to reinterpret the ABM Treaty to 
permit development of mobile space-based anti-ballistic systems 
for the Strategic Defense Initiative. The Senate became 
concerned about both the future of the ABM Treaty and the 
failure to obtain its advice and consent for a major change in 
treaty obligations. It attached a condition to the INF Treaty 
restating the principle that the President may not adopt a 
treaty interpretation different from the common understanding 
shared by the Senate at the time it gave its advice and 
consent, without the advice and consent of the Senate or the 
enactment of a statute. In action on subsequent arms control 
treaties, the Senate affirmed the applicability of these 
principles to all treaties. In 1993 the Clinton Administration 
made clear it had returned to the ``narrow'' or ``traditional'' 
interpretation of the ABM Treaty.\22\
---------------------------------------------------------------------------
    \22\ See Chapters VI, VIII, and IX for references and additional 
discussion.
---------------------------------------------------------------------------
    Twice in recent years the method of terminating a treaty 
has raised serious controversy within the United States. In 
1978, President Carter terminated the defense treaty with the 
Republic of China without the concurrence of either the Senate 
or Congress when he established diplomatic relations with the 
People's Republic of China. In 1977, the new Panama Canal 
Treaty terminated the 1903, 1936, and 1955 treaties with 
Panama. Although a new treaty was approved by the Senate, some 
contended that the termination of the earlier treaties required 
an act of Congress, thus including approval by the House of 
Representatives as well as the Senate.

                 difficulty in overseeing treaties \23\
---------------------------------------------------------------------------

    \23\ See Chapter X for references and additional discussion.
---------------------------------------------------------------------------
    Once it has given its advice and consent to a treaty, the 
Senate often lacks the information necessary to oversee further 
action under the treaty. It does not receive a copy of the 
resolution of ratification signed by the President, or the 
proclamation, to enable comparison with the resolution of 
ratification adopted by the Senate. It does not receive copies 
of reservations or conditions established by other parties, to 
enable a determination of whether the advice and consent of the 
Senate should have been required. It is not always informed 
when a treaty has entered into force or been modified in some 
way. Completion by the Department of State of a computerized 
information system on treaties, with Senate access, might 
enable the Senate to oversee some aspects of the implementation 
of treaties more effectively.
    Compliance with treaties has also become an issue on some 
occasions, especially in the arms control field. Oversight of 
compliance has been done with traditional congressional tools 
such as hearings, investigations, and required reports.

                             minority power

    Questions are sometimes raised because of the power of a 
minority to block a treaty. Since a two-thirds majority of the 
Senators present is required to advise and consent to a treaty, 
a minority of one-third plus one of the Senate may reject a 
treaty. In some cases Senators in the minority seem to have 
more influence on a treaty or the substance of future policy 
than other Senators because those in the minority can win 
concessions. The President may be certain of the support of a 
simple majority; he must make special concessions to win the 
extra votes necessary for a two-thirds majority. Nevertheless, 
a two-thirds majority was clearly the intention of the Framers 
of the Constitution, and any formal change would require a 
constitutional amendment.

                       the house role in treaties

    Because treaties become part of the law of the land, 
concern is sometimes expressed that the House of 
Representatives does not share in the treaty power. The Framers 
confined the treatymaking power to the President and the Senate 
in the belief that the latter's smaller size would enable it to 
be a confidential partner in the negotiations. The need for 
maintaining secrecy during negotiations and acting with speed 
were also cited as justifications for not including the House. 
In addition, by making the treaty power a national power and 
requiring the advice and consent of the Senate, the Framers 
gave expression to their desire to form a strong central 
government while affording the states ample safeguards.
    The Supreme Court, in INS v. Chadha, cited the Senate's 
power to advise and consent to treaties negotiated by the 
President ``as one of only four provisions in the Constitution, 
explicit and unambiguous, by which one House may act alone with 
the unreviewable force of law, not subject to the President's 
veto.'' \24\ In 1945 the House adopted a resolution to amend 
the Constitution to require the advice and consent of both 
Houses for treaties, but the Senate did not act on the 
measure.\25\
---------------------------------------------------------------------------
    \24\ 462 U.S. 919 (1983).
    \25\ H.J. Res. 60, Congressional Record (1945), pp. 4326-4368.
---------------------------------------------------------------------------
    The House from the beginning has played a role in treaties 
that require implementing legislation. On occasion, as in 1796 
with the Jay Treaty, problems have arisen when Presidents have 
completed ratification of treaties and then called upon 
Congress to pass implementing legislation to prevent the United 
States from defaulting on its international obligations. 
Treaties approved by the Senate have sometimes remained 
unfulfilled for long periods because implementing legislation 
was not passed.
    The increasing use of congressional-executive agreements 
has also equalized to some extent the role of the House vis-a-
vis the Senate in the making of international agreements. 
Executive agreements authorized or approved by legislation give 
a majority in the House and Senate the power analogous to the 
Senate's advice and consent by a two-thirds majority.

                vienna convention on the law of treaties

    A pending issue for the Senate is what action to take on 
the Vienna Convention on the Law of Treaties, a codification of 
the international law of treaties which is increasingly cited 
as a source of international law, even though the United States 
has not yet ratified it. The United States played a leading 
role in negotiating the Vienna Convention at a conference of 
more than 100 nations and signed it with almost 50 other 
countries on May 23, 1969. As in the case of many treaties, 
however, the executive branch conducted the negotiations 
without congressional observers or consultations, although the 
subject matter was of clear concern to the Senate.
    The convention was signed by the United States on May 23, 
1969, and submitted to the Senate on November 7, 1971. The 
Senate Foreign Relations Committee ordered reported a 
resolution of advice and consent to ratification, subject to an 
understanding and an interpretation, on September 7, 1972, but 
the Department of State and the Senate Foreign Relations 
Committee could not agree on acceptable conditions and the 
convention remains pending on the Foreign Relations Committee 
calendar.\26\
---------------------------------------------------------------------------
    \26\ See section on the Vienna Convention on the Law of Treaties in 
Chapter III. The text of the Vienna Convention is contained in Appendix 
5.
---------------------------------------------------------------------------
    The main dilemma is that simple ratification would leave 
unresolved important constitutional issues relating to 
executive agreements. The Vienna Convention codifies an 
international law definition of treaties that makes no 
distinction between different forms of international 
agreements. Article 46 permits a state to invalidate a treaty 
if a violation of domestic law in concluding the treaty was 
``manifest and concerned a rule of its internal law of 
fundamental importance.'' In 1972, however, the Department of 
State objected to the interpretation proposed by the Senate 
Foreign Relations Committee that it was ``a rule of internal 
law of the United States of fundamental importance'' that no 
treaty as defined by the convention would be valid unless it 
had received the advice and consent of the Senate or its terms 
had been approved by law.
    The second problem is that, although the United States has 
traditionally supported the progressive codification of 
international law, in a few instances the Vienna Convention 
formally codifies rules of international law that may not have 
been fully accepted as customary law by the United States. In 
particular, the Vienna Convention provides that an 
international agreement is void if it conflicts with a 
fundamental norm of general international law ``accepted and 
recognized by the international community of States as a whole 
as a norm from which no derogation is permitted * * *.'' The 
United States in principle does not object to this concept 
known as jus cogens, but the convention does not state by whom 
or how such norms are established.
    Furthermore, the Vienna Convention provides that if a 
treaty dispute relating to jus cogens is not resolved within 12 
months, any party may invoke the jurisdiction of the 
International Court of Justice unless the parties agree to 
submit it to arbitration. While the United States has entered a 
number of treaties providing for submission of disputes to the 
International Court of Justice, unqualified Senate approval of 
the Vienna Convention would appear to broaden significantly 
U.S. acceptance of the court's jurisdiction, a matter which has 
long been controversial. The United States withdrew its 
declaration accepting the court's compulsory jurisdiction on 
October 7, 1985. Moreover, in approving some treaties with 
provisions for submission of disputes to the International 
Court of Justice, the Senate has added conditions. In giving 
its advice and consent to the Genocide Convention, the Senate 
added a reservation that before any dispute to which the United 
States was a party could be submitted to the jurisdiction of 
the International Court of Justice, the specific consent of the 
United States was required in each case.

          C. Issues in Agreements Not Submitted to the Senate

    Any problems the Senate has in influencing treaties pale in 
comparison with problems in influencing many other 
international agreements entered into by the United States. For 
sole executive agreements, many executive agreements entered 
into under the authority of a treaty, and non-legally binding 
or political agreements, the Senate (and Congress as a whole) 
often have little timely knowledge and no opportunity to change 
them or prevent them from taking effect. An exception is the 
category of congressional-executive agreements that are 
authorized by Congress in legislation with procedures for 
congressional review and approval. The problem is one of both 
quantity and quality. The number of agreements not submitted to 
the Senate as treaties has risen sharply while the number of 
treaties has remained steady. At the same time, the subject 
matter coverage of executive agreements has expanded and their 
significance increased.

              increasing use of executive agreements \27\
---------------------------------------------------------------------------

    \27\ See Chapter II for references and additional discussion.
---------------------------------------------------------------------------
    As the United States became more involved in world affairs, 
international agreements multiplied. Most of the growth was in 
executive agreements. The executive branch found it was much 
easier to conclude an executive agreement than a treaty because 
it was not submitted to the Senate. (Compare charts 1 and 2 
above.) The Senate, too, accepted executive agreements as an 
alternate method of making many international agreements, since 
submitting all agreements to the Senate as treaties would 
either overwhelm the Senate with work or force approval to 
become perfunctory.
    Of most concern to the Senate were executive agreements 
concluded solely on the President's own authority, without any 
influence from Congress. In other executive agreements, the 
Senate played a role anyway. In the case of executive 
agreements concluded under the authority of a treaty, the 
Senate consented to the original treaty. In the case of 
congressional-executive agreements, both Houses passed the 
legislation that authorized, required scrutiny of, or approved 
the agreements.

     oversight of executive agreements--the case-zablocki act \28\
---------------------------------------------------------------------------

    \28\ See Chapter X for references and additional discussion. The 
text of the Case-Zablocki Act is contained in Appendix 2.
---------------------------------------------------------------------------
    To help in oversight of executive agreements, in 1972 the 
Case-Zablocki Act was enacted. This Act (1 U.S.C. 112b), 
usually referred to as the Case Act, requires the Secretary of 
State to transmit to Congress all executive agreements, 
including oral agreements which are to be reduced to written 
form, within 60 days after their entry into force. If the 
President deems that the immediate disclosure of an agreement 
would be prejudicial to national security, the agreement is to 
be transmitted to the Senate Foreign Relations and House 
International Relations Committees with a security 
classification.
    The Case Act has proved helpful in informing Congress of 
executive agreements and has provided machinery for additional 
oversight. If fully complied with by the executive branch and 
utilized by Members of Congress, a system exists for Congress 
to learn of executive agreements and to determine the adequacy 
of their authorization.

                    learning of executive agreements

    The first problem dealt with by the Case Act was 
determining when executive agreements have been concluded. In 
the past, Presidents have entered into agreements secretly, as 
evidenced by the Yalta Agreement of 1945 and the Cuban missile 
crisis of 1962. The Case Act requires the State Department to 
send Congress copies of executive agreements. In most cases the 
agreements are submitted within the required 60 days after 
their entry into force, but some are submitted late. While the 
fact that the agreements have already entered into force means 
that Congress cannot prevent them from taking effect, timely 
knowledge does permit Congress an opportunity to consider the 
policy represented by the agreement and to use legislative 
means to modify the policy if it wishes.
    The Case Act has also helped the Department of State, as 
well as Congress, learn of and have some supervision over 
agreements made by agencies of the Government other than the 
State Department. The Case Act requires any department or 
agency that enters an international agreement to transmit the 
agreement to the Department of State within 20 days. In 
addition, it prohibits any international agreement from being 
signed or otherwise concluded on behalf of the United States 
without prior consultation with the Secretary of State. Such 
consultation may cover a class of agreements rather than each 
individual agreement.
    U.S. agencies frequently make contracts and arrangements 
with agencies in other countries. The Secretary of State 
determines for the executive branch whether an arrangement 
constitutes an international agreement required to be 
transmitted to Congress under the Case Act. Members and 
committees of Congress do not want to be deluged with trivia, 
yet they want to be sure to receive important agreements. One 
decision taken to this end by the Secretary of State with 
congressional concurrence was to exclude agreements made by the 
Agency for International Development to provide funds of less 
than $25 million for a foreign project, unless the agreement 
was otherwise significant.

             determining authority for executive agreements

    A basic concern of the Senate has been whether an executive 
agreement is properly within the authority of a treaty or 
statute. In 1973, in implementing the Case Act, the Department 
of State agreed to send with each executive agreement 
transmitted to Congress a background statement on the agreement 
that would include a precise citation of legal authority. 
Checking these citations could help the Senate distinguish 
between those agreements that are within the authority of a 
treaty or statute and those it would consider sole executive 
agreements. In recent years, however, a majority of agreements 
have been transmitted without such background statements.

               non-binding international agreements \29\
---------------------------------------------------------------------------

    \29\ See Chapters III and X for references and additional 
discussion.
---------------------------------------------------------------------------
    Some international agreements are not intended to be 
legally binding, and these non-binding agreements may escape 
regular congressional oversight procedures. Sometimes called 
political agreements, these agreements are not considered 
treaties under international law. They are not enforceable in 
courts, and rules concerning compliance, modification, and 
withdrawal from treaties do not apply. Nevertheless, these 
agreements may be considered morally binding by the parties, 
and the President may be making a type of national commitment 
when he enters one. Moreover such agreements are occasionally 
later converted into legally binding agreements.
    Non-binding agreements are not new. Presidents have often 
made mutual declarations and agreed on final acts and 
communiques after international meetings. Recently some non-
binding agreements appear to have become quite formal, however, 
assuming all the characteristics of a treaty except for a 
statement that they are politically, not legally, binding. 
Agreements under the Conference on Security and Cooperation in 
Europe (CSCE) are an example.
    Since non-binding agreements are not submitted to the 
Senate as treaties and are not transmitted to Congress as 
executive agreements under the Case-Zablocki Act, Congress may 
need to learn of the agreements and oversee them through other 
methods. In the case of the CSCE agreements, Congress has 
carried out vigorous oversight through the Commission on 
Security and Cooperation in Europe.

         D. Deciding Between Treaties and Executive Agreements

    The crux of the problem is determining when international 
agreements should be concluded as treaties and when they should 
be executive agreements. For what subjects is it essential to 
use the treaty process? For what subjects are executive 
agreements appropriate?

   scope of the treaty power; proper subject matter for treaties \30\
---------------------------------------------------------------------------

    \30\ See Chapters III and IV for references and additional 
discussion.
---------------------------------------------------------------------------
    The treaty power is recognized by the courts as extending 
to any matter properly the subject of international 
negotiations. In practice the subject matter dealt with by 
international negotiations has steadily expanded, particularly 
in the last half century, with new forms of international 
cooperation in political, military, economic, and social 
fields.
    From time to time concern has been expressed that treaties 
could have adverse implications for, or the effect of changing, 
domestic law. For example, the negotiation of human rights 
treaties under the auspices of the United Nations raised 
concern in the 1950s that some clauses, if ratified by the 
United States, might be in conflict with constitutional 
provisions safeguarding human rights, or that matters clearly 
in the domestic jurisdiction of the United States could be 
changed into matters of international concern. Other concerns 
were that some national powers might be transferred to an 
international organization, or that powers traditionally 
reserved to the states could be invaded by transferring them to 
the Federal Government or international bodies.
    Despite its breadth, the treaty power has certain 
limitations in addition to the procedural safeguard of the 
requirement for the Senate's advice and consent. Chief among 
these is that treaties, like laws, are subject to the 
requirements of the Constitution. Controversial constitutional 
issues involving treaties include:
    (1) Rights reserved to the states.--While it seems settled 
that the unspecified reserved powers of the 10th amendment are 
not a bar to exercise of the treaty power, specific powers 
conferred on states arguably might provide restrictions.
    (2) Subjects in which the Constitution gave participation 
to the House of Representatives.--Powers delegated to Congress 
are not a limitation on subject matter which can be embraced by 
a treaty, but for many treaties, domestic effectiveness may 
depend on implementing legislation.
    (3) Authorizations of U.S. participation in proceedings 
before certain types of international judicial tribunals.--The 
Constitution's vesting of the judicial power in one Supreme 
Court and such inferior courts as Congress might establish 
provides a safeguard against infringement by treaty on the 
domestic judicial power.
    (4) Matters of domestic jurisdiction, not of international 
concern.--While there is no clear test of what matters are of 
international concern, the existence of such limitations 
appears to be generally accepted.
    (5) Separation of powers and rights under the Bill of 
Rights.--As a general matter, an agreement cannot alter the 
constitutional distribution of powers or impair 
constitutionally protected rights.

  scope of executive agreements; proper subject matter for executive 
                            agreements \31\
---------------------------------------------------------------------------

    \31\ See Chapter IV for references and additional discussion.
---------------------------------------------------------------------------
    The extent to which executive agreements can be utilized 
instead of treaties is perhaps the fundamental question in 
studying the Senate role in treaties, and is by no means wholly 
resolved.
    Congressional-executive or statutory agreements, authorized 
or approved by legislation, would appear to have the broadest 
constitutional basis. They have been used for such important 
subjects as joining international organizations, and the Senate 
in legislation has endorsed their possible use for arms control 
agreements and the making of national commitments.
    Many legal scholars consider statutory agreements 
interchangeable with treaties as a method of making 
international agreements. Some might even argue that because 
they require approval of both Houses of Congress, statutory 
agreements might be more appropriate for those questions which 
affect domestic law than treaties, which are considered only by 
the Senate. When implementing legislation is required, they are 
an efficient device because the approval of the agreement and 
the necessary legislation may be accomplished in a single step.
    Others might argue that to use congressional-executive 
agreements instead of treaties, while preserving the 
congressional role, could lead to erosion of the treaty power. 
Not only would it circumvent the method set out in the 
Constitution that deliberately made entering treaties more 
difficult than passing legislation, but it would indirectly 
reduce the influence of states whose interests were seen to be 
protected by requiring a two-thirds majority of the Senators 
voting. Some may object to the use of statutory agreements 
instead of treaties, when initiated by the executive branch, on 
the grounds that it allows the executive branch to pick and 
choose between the two methods of making international 
agreements according to the better prospects for approval; they 
may not object if Congress specifically authorizes such an 
agreement.
    The other two types of international agreements have 
narrower limits but pose other problems. Executive agreements 
pursuant to treaties are supposed to be within the purview of 
the treaty, that is, carry out the purposes of the treaty. Sole 
executive agreements are supposed to be within the President's 
independent executive powers under Article II of the 
Constitution. However, the extent of the ``purview of the 
treaty'' and the President's independent powers raise 
judgmental matters subject to varying interpretations.

                     criteria for treaty form \32\
---------------------------------------------------------------------------

    \32\ See Chapter X.
---------------------------------------------------------------------------
    A perennial concern of Senators has been to insure that the 
most important international commitments are made as treaties 
rather than executive agreements. There have been recurrent 
complaints that some agreements of major significance, such as 
agreements to establish military bases, were not submitted to 
the Senate as treaties.
    Procedures for consultation between the executive branch 
and Congress on the form of prospective international 
agreements, primarily whether they should be treaties submitted 
to the Senate, were developed in 1978 after the Senate passed 
the International Agreements Consultation Resolution suggesting 
that such consultation should occur. These procedures include 
State Department consultation with appropriate congressional 
committees in advance of negotiations. In addition, the 
Department is periodically to send the Senate Foreign Relations 
and House International Relations Committees a list of 
significant international agreements that it has authorized for 
negotiation. Congress can use the information provided as the 
basis for discussions with the Department of State, or possibly 
take more action, on the form an agreement should ultimately 
take.
    The State Department has developed the following criteria 
for determining whether an agreement should be a treaty:
    (1) The degree of commitment or risk for the entire Nation;
    (2) Whether the agreement is intended to affect state laws;
    (3) Whether the agreement requires enabling legislation;
    (4) Past U.S. practice;
    (5) The preference of Congress;
    (6) The degree of formality desired;
    (7) The proposed duration and the need for prompt 
conclusion; and
    (8) General international practice on similar agreements.
    When there is a question as to whether an agreement should 
be concluded as a treaty or executive agreement, State 
Department procedures call for consultation with congressional 
leaders and committees as may be appropriate. Fuller use of 
these and other consultation procedures appear to offer the 
most opportunity for assuring appropriate decisions, from the 
Senate's perspective, on whether particular international 
agreements should be concluded as executive agreements, 
congressional-executive agreements, or treaties.


  II. HISTORICAL BACKGROUND AND GROWTH OF INTERNATIONAL AGREEMENTS \1\
---------------------------------------------------------------------------

    \1\ Prepared by Louis Fisher, Senior Specialist in Separation of 
Powers.
---------------------------------------------------------------------------
                              ----------                              

    The Framers of the Constitution expected the Senate to 
serve as a council of advice to the President on treaty 
matters, participating during the negotiation stage through the 
end of the treatymaking process. The experience of President 
George Washington in 1789, in meeting with Senators to discuss 
the terms of a treaty to be negotiated with the Southern 
Indians, proved discouraging to both branches. Although no 
President again met with Senators in the Senate Chamber to 
discuss a proposed treaty, other methods were used to include 
Senators in the treaty-drafting process. The Senate's role 
evolved into a more formal pattern of passing judgment on 
completed treaties, approving or not approving them, or 
approving them with conditions that the President must accept 
if he ratifies them.
    Senate action on treaties has changed dramatically, 
particularly since World War II. While the number of treaties 
concluded each year has remained fairly constant, the number of 
international agreements other than treaties has skyrocketed. 
Moreover, a growing proportion of treaties are now multilateral 
rather than bilateral, and the subject matter of treaties and 
other international agreements continues to diversify. All of 
these changes challenged the Senate in maintaining its 
constitutional role.

         A. Historical Background of Constitutional Provisions

    Four provisions of the Constitution expressly relate to 
treaties and form the basis of U.S. law on treaties. By making 
treaties the supreme law of the land and dividing the 
treatymaking power between the President and the Senate, the 
Constitution makes treaties uniquely important and difficult 
for the United States.
    Article I, Section 10, expressly prohibits states from 
entering into ``any Treaty, Alliance, or Confederation,'' nor 
may any state, without the consent of Congress, enter into any 
agreement or compact or agreement with another state or with a 
foreign nation.
    Article II, Section 2, Clause 2, states that 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.''
    Article III, Section 2, Clause 1, provides: ``The judicial 
Power shall extend to all Cases, in Law and Equity, arising 
under this Constitution, the Laws of the United States, and 
Treaties made, or which shall be made, under their Authority; * 
* *''
    Article VI, Section 2, includes treaties among the supreme 
law of the land: ``This Constitution, and the Laws of the 
United States which shall be made in Pursuance thereof; and all 
Treaties made, or which shall be made, under the Authority of 
the United States, shall be the supreme Law of the Land; and 
the Judges in every State shall be bound thereby, any Thing in 
the Constitution or Laws of any State to the Contrary 
notwithstanding.''
    The background and records of the Constitutional Convention 
of 1787 and early writings and practice help reveal the 
intentions, concerns, and assumptions of the Drafters of the 
Constitution.

                     the constitutional convention

    The Articles of Confederation, completed in 1777 but not 
ratified until 1781, formed the basis of the relationship among 
the 13 colonies until superseded by the Constitution in 1789. 
The Continental Congress was the only central organ of the 
Confederation. The Articles vested in ``the united states in 
congress assembled'' the power to enter into treaties and 
alliances, ``provided that no treaty of commerce shall be made 
whereby the legislative power of the respective states shall be 
restrained from imposing such imposts and duties on foreigners, 
as their own people are subjected to, or from prohibiting the 
exportation or importation of any species of goods or 
commodities whatsoever * * *.'' Congress, a single body 
composed of delegates from each state, required the assent of 
nine states for a treaty.The main problem concerning treaties 
under the Articles was in securing agreement to make treaty 
provisions binding on all the states.
    At the Philadelphia Convention in 1787, a number of 
proposals were put forth to replace the Articles of 
Confederation. It was generally agreed that the single branch 
of the Continental Congress would be replaced by three 
branches: legislative, executive, and judicial. Well into 
August, the delegates agreed to give the Senate the exclusive 
power to make treaties and appoint ambassadors.\2\ Opposition 
developed, however. On August 15, John Mercer of Maryland 
objected to lodging the treatymaking power in the Senate, 
contending that it belonged to the executive department, adding 
that treaties ``would not be final so as to alter the laws of 
the land, till ratified by legislative authority.'' \3\ On 
August 23, James Madison pointed out that the Senate 
represented the states alone and that for ``this as well as 
other obvious reasons it was proper that the President should 
be an agent in Treaties.'' \4\
---------------------------------------------------------------------------
    \2\ The Records of the Federal Convention of 1787, at 143, 144-45, 
155, 392 (Max Farrand ed. 1937) (hereafter cited as Farrand).
    \3\ Ibid., p. 297.
    \4\ Ibid., p. 393
---------------------------------------------------------------------------
    By September 4 delegates had agreed that the President ``by 
and with the advice and consent of the Senate, shall have power 
to make treaties,'' and that no treaty shall be made without 
the consent of two-thirds of the Senators present.\5\ This 
portion of the report was brought up for discussion on 
September 7. James Wilson of Pennsylvania moved to add the 
words ``and House of Representatives'' after the word Senate 
because, he said, since treaties ``are to have the operation of 
laws, they ought to have the sanction of laws also.'' As to the 
objection that secrecy was needed for treatymaking, he said 
that factor was outweighed by the necessity for the sanction of 
both chambers. Roger Sherman of Connecticut argued that the 
requirement of secrecy for treaties ``forbade a reference of 
them to the whole Legislature.'' Wilson's motion was 
defeated.\6\
---------------------------------------------------------------------------
    \5\ Ibid., pp. 495, 498-499.
    \6\ Ibid., p. 538.
---------------------------------------------------------------------------
    Considerable attention was given to the size of the Senate 
majority that should be required. Wilson objected to requiring 
a two-thirds majority on the grounds that it ``puts it in the 
power of a minority to control the will of a majority.'' He was 
supported by Rufus King of Massachusetts, who pointed out that 
there was already a check by joining the President in the 
treatymaking process.\7\ Several amendments were defeated: (1) 
to allow two-thirds of the Senate to make treaties of peace 
without the President's concurrence; (2) to strike out 
altogether the clause requiring approval by two-thirds of the 
Senate; (3) to require the consent of two-thirds of all the 
members of the Senate; (4) to require a majority of the whole 
number of the Senate; (5) to establish that a quorum of the 
Senate consist of two-thirds of all the members; and (6) to 
provide that ``no Treaty shd. be made with[ou]t previous notice 
to the members, & a reasonable time for their attending.'' \8\
---------------------------------------------------------------------------
    \7\ Ibid., p. 540.
    \8\ Ibid., pp. 540-541, 547-550.
---------------------------------------------------------------------------
    A committee was then appointed to revise the style and 
arrangement of the articles that had been adopted, and the text 
reported back was finally approved by the convention as Section 
2 of Article II in its current form. Thus, the power to make 
treaties, at first given to the Senate by the Committee of 
Detail, was transferred to the President by and with the advice 
and consent of the Senate.

                           debate on adoption

    Further indications of the intended meaning of the 
constitutional provisions are found in ``The Federalist,'' a 
group of papers written by Alexander Hamilton, John Jay, and 
James Madison to explain and win support for the Constitution, 
and in debates in the State Constitutional Conventions called 
to decide on its adoption. These sources sustain the conclusion 
that the original intention was that the Senate and the 
President share the treatymaking power, with the sharing to 
begin early and continue throughout the treatymaking process.
    Federalist No. 75 by Hamilton ascribes a ``peculiar 
propriety'' to the union of the President and the Senate in the 
treatymaking process:
          Though several writers on the subject of government 
        place that power in the class of executive authorities, 
        yet this is evidently an arbitrary disposition; for if 
        we attend carefully to its operation, it will be found 
        to partake more of the legislative than of the 
        executive character, though it does not seem strictly 
        to fall within the definition of either of them. The 
        essence of the legislative authority is to enact laws, 
        or, in other words, to prescribe rules for the 
        regulation of the society; while the execution of the 
        laws, and the employment of the common strength, either 
        for this purpose or for the common defense, seem to 
        comprise all the functions of the executive magistrate. 
        The power of making treaties is, plainly neither the 
        one nor the other. * * * Its objects are CONTRACTS with 
        foreign nations, which have the force of law, but 
        derive it from the obligations of good faith. They are 
        not rules prescribed by the sovereign to the subject, 
        but agreements between sovereign and sovereign. The 
        power in question seems therefore to form a distinct 
        department, and to belong, properly, neither to the 
        legislative nor to the executive. The qualities 
        elsewhere detailed as indispensable in the management 
        of foreign negotiations, point out the Executive as the 
        most fit agent in those transactions; while the vast 
        importance of the trust, and the operation of treaties 
        as laws, plead strongly for the participation of the 
        whole or a portion of the legislative body in the 
        office of making them.\9\
---------------------------------------------------------------------------
    \9\ The Federalist (Benjamin Fletcher Wright ed.), Cambridge, 
Mass., Harvard University Press (1961), pp. 476-477.

    Federalist No. 64 by Jay foresees that on some occasions 
the President would undertake preparatory work on treaties 
alone but nevertheless would call upon the Senate in important 
matters:
          It seldom happens in the negotiation of treaties, of 
        whatever nature, but that perfect secrecy and immediate 
        despatch are sometimes requisite. There are cases where 
        the most useful intelligence may be obtained, if the 
        persons possessing it can be relieved from 
        apprehensions of discovery. Those apprehensions will 
        operate on those persons whether they are actuated by 
        mercenary or friendly motives; and there doubtless are 
        many of both descriptions, who would rely on the 
        secrecy of the President, but who would not confide in 
        that of the Senate, and still less in that of a large 
        popular Assembly. The convention have done well, 
        therefore, in so disposing of the power of making 
        treaties, that although the President must, in forming 
        them, act by the advice and consent of the Senate, yet 
        he will be able to manage the business of intelligence 
        in such a manner as prudence may suggest.
          * * * Those matters which in negotiations usually 
        require the most secrecy and the most despatch, are 
        those preparatory and auxiliary measures which are not 
        otherwise important in a national view, than as they 
        tend to facilitate the attainment of the objects of the 
        negotiation. For these, the President will find no 
        difficulty to provide; and should any circumstance 
        occur which requires the advice and consent of the 
        Senate, he may at any time convene them. * * *
          Some are displeased with it, not on account of any 
        errors or defects in it, but because, as the treaties, 
        when made, are to have the force of laws, they should 
        be made only by men vested with legislative authority. 
        * * *
          Others, though content that treaties should be made 
        in the mode proposed, are averse to their being the 
        supreme law of the land. They insist, and profess to 
        believe, that treaties like acts of assembly, should be 
        repealable at pleasure. This idea seems to be new and 
        peculiar to this country, but new errors, as well as 
        new truths, often appear. These gentlemen would do well 
        to reflect that a treaty is only another name for a 
        bargain, and that it would be impossible to find a 
        Nation who would make any bargain with us, which should 
        be binding on them absolutely, but on us only so long 
        and so far as we may think proper to be bound by 
        it.\10\
---------------------------------------------------------------------------
    \10\ Ibid., pp. 422-424.

    Pierce Butler, one of the delegates of the Federal 
Convention and a member of the committee that drafted the 
treaty clause, explained to the members of the South Carolina 
ratifying convention the reasons that lay behind the 
constitutional language:
          It was at first proposed to vest the sole power of 
        making peace or war in the Senate; but this was 
        objected to as inimical to the genius of a republic, by 
        destroying the necessary balance they were anxious to 
        preserve. Some gentlemen were inclined to give this 
        power to the President, but it was objected to, as 
        throwing into his hands the influence of a monarch, 
        having an opportunity of involving his country in a war 
        whenever he wished to promote her destruction. The 
        House of Representatives was then named; but an 
        insurmountable objection was made to this proposition--
        which was, that negotiations always required the 
        greatest secrecy, which could not be expected in a 
        large body.\11\
---------------------------------------------------------------------------
    \11\ The Debates in the Several State Conventions on the Adoption 
of the Federal Convention (Jonathan Elliot ed.), v. 4, p. 263.

    Charles Cotesworth Pinckney, who had originally proposed in 
the convention that the treatymaking power be given to the 
Senate alone, explained to the South Carolina Legislature that 
the Senate would approve or disapprove the terms of treaties 
proposed by the President.
          At last it was agreed to give the President a power 
        of proposing treaties, as he was the ostensible head of 
        the Union, and to vest the Senate (where each state had 
        an equal voice) with the power of agreeing or 
        disagreeing to the terms proposed. * * * On the whole, 
        a large majority of the Convention thought this power 
        would be more safely lodged where they had finally 
        vested it, than any where else. It was a power that 
        must necessarily be lodged somewhere: political caution 
        and republican jealousy rendered it improper for us to 
        vest in the President alone; the nature of negotiation, 
        and the frequent recess of the House of 
        Representatives, rendered that body an improper 
        depository of this prerogative. The President and 
        Senate joined were, therefore, after much deliberation, 
        deemed the most eligible corps in whom we could with 
        safety vest the diplomatic authority of the Union.\12\
---------------------------------------------------------------------------
    \12\ Ibid., p. 265.
---------------------------------------------------------------------------

                   B. Evolution into Current Practice

    Early practice in treatymaking lends further insight into 
the intentions of the Framers of the Constitution, as well as 
into factors bringing about current practice. The first 
President of the United States had also presided at the 
Constitutional Convention, and most of the Members of the 
Senate during his administrations either had been members of 
the Continental or Confederation Congresses or attended the 
Constitutional Convention or the state conventions called to 
adopt the Constitution.\13\
---------------------------------------------------------------------------
    \13\ ``Of the sixty-six men who served in the Senate during 
Washington's administrations, thirty-one had been members of the 
Constitutional Congress or of the Congress of the Confederation, twelve 
had helped draft the Constitution in the convention at Philadelphia, 
and ten had been members of state conventions which had ratified the 
Federal instrument.'' Hayden, Ralston. The Senate and Treaties, 1789-
1817. New York, Macmillan, 1920, p. 3.
---------------------------------------------------------------------------

                      washington's administrations

    On August 6, 1789, the Senate appointed a committee to 
confer with the President on the manner in which communications 
between them concerning treaties and nominations should be 
handled. In a message to the committee on August 8, 1789, 
President Washington stated that in all matters respecting 
treaties ``oral communications seem indispensably necessary; 
because in these a variety of matters are contained, all of 
which not only require consideration, but some of them may 
undergo much discussion; to do which by written communications 
would be tedious without being satisfactory.'' \14\ In a second 
message on August 10, he distinguished between appointments--in 
which ``the agency of the Senate is purely executive''--and 
treaties, where ``the agency is perhaps as much of a 
legislative nature and the business may possibly be referred to 
their deliberations in their legislative chamber.'' In this 
same message, he explained that the Senate was to be consulted 
in advance of making a treaty. Treaties would be presented to 
the Senate in an interim form (``propositions''), not as a 
completed product:
---------------------------------------------------------------------------
    \14\ The Writings of George Washington (John C. Fitzpatrick ed.), 
v. 30, p. 373.
---------------------------------------------------------------------------
          On some occasions it may be most convenient that the 
        President should attend the deliberations and decisions 
        on his propositions; on others that he should not; or 
        that he should not attend the whole of the time. In 
        other cases, again, as in Treaties of a complicated 
        nature, it may happen, that he will send his 
        propositions in writing and consult the Senate in 
        person after time shall have been allowed for 
        consideration.\15\
---------------------------------------------------------------------------
    \15\ Ibid., p. 378.

    President Washington recommended that the Senate should 
accommodate its rules to the uncertainty of the particular mode 
and place, provide for either oral or written propositions, and 
for giving consent and advice in either the presence or absence 
of the President, leaving the President free to establish the 
mode and place.
    Accordingly, on August 21, 1789, the Senate adopted a rule 
on the procedure to be followed when the President met with the 
Senate. The rule covered both appointments and treaties:
          Resolved, That when nominations shall be made in 
        writing by the President of the United States to the 
        Senate, a future day shall be assigned, unless the 
        Senate unanimously direct otherwise, for taking them 
        into consideration; that when the President of the 
        United States shall meet the Senate in the Senate 
        Chamber, the President of the Senate shall have a chair 
        on the floor, be considered as at the head of the 
        Senate, and his chair shall be assigned to the 
        President of the United States; that when the Senate 
        shall be convened by the President of the United States 
        to any other place, the President of the Senate and 
        Senators shall attend at the place appointed. The 
        Secretary of the Senate shall also attend to take the 
        minutes of the Senate.
          That all questions shall be put by the President of 
        the Senate, either in the presence or absence of the 
        President of the United States; and the Senators shall 
        signify their assent or dissent by answering viva voce, 
        aye or no.\16\
---------------------------------------------------------------------------
    \16\ 1 Annals of Cong. 65 (August 21, 1789) (emphasis in original).

    The same day President Washington gave notice of his 
intention to meet with the Senate to consider the terms of a 
treaty to be negotiated with the Southern Indians. The next 
day, Saturday, President Washington came into the Senate 
Chamber, accompanied by Secretary of War Henry Knox, and 
presented a paper giving an explanation of the proposed treaty. 
He then asked the Senate for its advice and consent on seven 
questions to guide the commissioners who were negotiating the 
treaty. At his request, the Senate postponed voting on the 
first question. On the second question, regarding instructions 
to the commissioners to pursue other measures respecting the 
Chickasaws and Choctaws, the Senate voted in the negative.\17\ 
On Monday, August 24, the President again returned to the 
Senate Chamber and votes were taken on the rest of the 
questions.\18\
---------------------------------------------------------------------------
    \17\ Ibid., p. 69.
    \18\ Ibid., pp. 69-71.
---------------------------------------------------------------------------
    These meetings between the Senate and the President are 
famous as the first and last times that a President personally 
appeared before the Senate to seek its advice and consent. The 
meetings apparently were not satisfactory to either side. While 
the Executive Journal of the Senate does not record the debate, 
William Maclay, a Senator from Pennsylvania, recorded in his 
journal the difficulty of hearing the discussion and the 
seeming haste for decisions. Because of the noise created by 
carriages driving past, Maclay ``could tell it was something 
about Indians, but was not master of one sentence of it.'' When 
it was proposed that the questions be referred to a committee, 
Washington ``started up in a violent fret'' and stated that 
``This defeats every purpose of my coming here.'' Maclay also 
wrote:
          I had, at an early stage of the business, whispered 
        to Mr. Morris that, I thought, the best way to conduct 
        the business was to have all the papers committed. My 
        reasons were that I saw no chance of a fair 
        investigation of subjects while the President of the 
        United States sat there, with his Secretary of War to 
        support his opinions, and overawe the timid and neutral 
        part of the Senate.\19\
---------------------------------------------------------------------------
    \19\ Maclay, William. Sketches of Debate in the First Senate of the 
United States (George W. Harris ed.), Harrisburg, Lane S. Hart (1880), 
p. 124.

    The dissatisfaction on the President's side is often 
illustrated with the following quotation from the memoirs of 
John Quincy Adams:
          Mr. Crawford told twice over the story of President 
        Washington's having at an early period of his 
        Administration gone to the Senate with a project of a 
        treaty to be negotiated, and been present at their 
        deliberations upon it. They debated it and proposed 
        alterations, so that when Washington left the Senate-
        chamber he said he would be damned if he ever went 
        there again. And ever since that time treaties have 
        been negotiated by the Executive before submitting them 
        to the consideration of the Senate.\20\
---------------------------------------------------------------------------
    \20\ Memoirs of John Quincy Adams (Charles Francis Adams ed.), 
Philadelphia, J.B. Lippincott (1875), v. VI, p. 427 (emphasis in 
original).

    It is error to conclude from this unhappy incident that 
Washington and future Presidents thereafter excluded the Senate 
from the treaty negotiation process. Washington continued to 
seek the advice of Senators, but he did so through written 
communications rather than personal appearances. For example, 
on February 9, 1790, he wrote to the Senate about a boundary 
line between U.S. and British territories. He thought ``it 
advisable to postpone any negotiations on the subject until I 
shall be informed of the result of your deliberations and 
receive your advice as to the propositions most proper to be 
offered on the part of the United States.'' \21\ On May 8, 
1792, he asked the Senate these questions:
---------------------------------------------------------------------------
    \21\ A Compilation of the Messages and Papers of the Presidents 
(James D. Richardson ed.), New York, Bureau of National Literature 
(1897-1925), v. 1, p. 64 (hereafter cited as Richardson).
---------------------------------------------------------------------------
          If the President of the United States should conclude 
        a convention or treaty with the Government of Algiers 
        for the ransom of the thirteen Americans in captivity 
        there for a sum not exceeding $40,000, all expenses 
        included, will the Senate approve the same? Or is there 
        any, and what, greater or lesser sum which they would 
        fix on as the limit beyond which they would not approve 
        the ransom?
          If the President of the United States should conclude 
        a treaty with the Government of Algiers for the 
        establishment of peace with them, at an expense not 
        exceeding $25,000, paid at the signature, and a like 
        sum to be paid annually afterwards during the 
        continuance of the treaty, would the Senate approve the 
        same? Or are there any greater or lesser sums which 
        they would fix on as the limits beyond which they would 
        not approve of such treaty? \22\
---------------------------------------------------------------------------
    \22\ Ibid., p. 115.

    On some occasions, however, President Washington did not 
consult the Senate in advance of negotiations. Four treaties 
with Indian tribes negotiated during Washington's 
administrations without prior consultation with the Senate were 
approved. In regard to one of these, the Treaty of Greenville 
with the Indians northwest of the Ohio, Washington consulted 
his Cabinet on whether consultations with the Senate should be 
undertaken prior to negotiation and the Cabinet unanimously 
expressed the opinion it would be better not to. Thomas 
Jefferson wrote that all thought that if the Senate were 
consulted and told of plans, it would become known to the 
British minister and ``we would lose all chance of saving 
anything more than our ultimatum.'' \23\
---------------------------------------------------------------------------
    \23\ Hayden, Ralston. The Senate and Treaties, 1789-1817. New York, 
Macmillan Co., 1920, pp. 37-38.
---------------------------------------------------------------------------
     In the case of the Jay Treaty with Great Britain of 
November 19, 1794, a few Senators helped initiate the treaty 
and were prominent in its negotiation, but the President did 
not obtain the advice and consent of the entire Senate on the 
instructions to the negotiation. Just before approving the 
appointment of John Jay as special envoy to Britain, the Senate 
rejected a motion asking the President to supply it with 
complete information on the business to be charged to Jay. 
However, it was recognized that the treaty would have to be 
negotiated subject to obtaining the consent of the Senate to 
ratification. When the final treaty was put before the Senate, 
the Senate made its consent conditional upon alteration of the 
treaty. After the revisions requested by the Senate were made 
and accepted by Britain, the President ratified the revised 
treaty without further submission to the Senate.
    The Senate on one occasion was called upon to assist in the 
interpretation of a treaty. In 1791, France contended that 
certain acts of Congress imposing requirements on ships without 
excepting those of France were in contravention of the Treaty 
of 1778. After considering various alternatives presented by 
the Secretary of State, the Senate expressed the opinion that 
the American interpretation of the treaty was correct and 
advised that this answer be given to France in the most 
friendly manner. This course was adopted.\24\
---------------------------------------------------------------------------
    \24\ Hayden, op. cit., p. 101.
---------------------------------------------------------------------------
    The conclusions of one student of the subject on the 
evolution of the treatymaking procedures during Washington's 
administrations have been stated as follows:
          One very important decision reached by the logic of 
        events during these eight years, however, was that the 
        Senate could not really be a ``council of advice'' to 
        the President in treaty-making. Yet evidently both 
        Washington and the Senate originally expected that it 
        would be such a council. The personal element in their 
        relations was emphasized by the presence of the 
        Secretary of State or the Secretary of War, or, in the 
        one instance, of the President himself, at their 
        deliberations.
          As the Senate ceased to be consulted as a real 
        ``council of advice,'' its activities in that part of 
        treaty-making known as the negotiation became less 
        important. At first in making treaties both with the 
        Indian tribes and with foreign nations the President 
        usually secured the advice and consent of the Senate to 
        the details of the proposed treaty before opening the 
        negotiation. In the end it became his custom merely to 
        inform the Senate of the proposed negotiation upon 
        securing its consent to the nomination of the agent, 
        and to submit the latter's instructions only with the 
        completed treaty. * * * The effect of the change in 
        procedure was to leave the President free to negotiate 
        the sort of treaty which the necessities of the 
        situation demanded and allowed, while the Senate 
        retained a like freedom to accept, to amend, or to 
        reject the result of his efforts.\25\
---------------------------------------------------------------------------
    \25\ Hayden, op. cit., pp. 105-106.
---------------------------------------------------------------------------

                    presidencies from adams to polk

    During subsequent administrations, the respective roles of 
the Senate and the President were further refined. Through its 
action on the Treaty of 1797 with Tunis, the Senate established 
its right to make its approval of a treaty conditional upon 
changes in the text or terms that might require renegotiation. 
In the European monarchies prior to that time, it had been 
considered obligatory for the monarchies to ratify a treaty if 
his emissary had stayed within his instructions, and no 
practice existed of reservations to parts of treaties. After 
considering the treaty with Tunis, the Senate adopted a 
resolution advising and consenting to its ratification on 
condition that a certain article be suspended and recommending 
renegotiation of the article. Renegotiation was undertaken and 
the Senate subsequently gave its advice and consent to the 
ratification of the article in question and two other articles 
that were renegotiated.\26\ The King-Hawksbury Convention of 
May 12, 1803, became the first treaty not to enter into force 
because the other party, Great Britain, would not accept an 
amendment advised by the Senate. Lord Harrowby, the head of the 
British Foreign Office at that time, criticized the practice of 
ratifying treaties with exceptions to parts of them, a practice 
which he called ``new, unauthorized and not to be sanctioned.'' 
\27\ Gradually, however, other countries became used to the 
American procedure.
---------------------------------------------------------------------------
    \26\ Ibid., pp. 108-111.
    \27\ Ibid., p. 150.
---------------------------------------------------------------------------
    President Andrew Jackson appreciated the value of seeking 
the advice of Senators on how best to pursue treaty 
negotiations. On May 6, 1830, he submitted to the Senate 
``propositions'' for a treaty with the Chocktaw Indians. He 
indicated the amendments he thought necessary, but elicited the 
Senate's views: ``Not being tenacious though, on the subject, I 
will most cheerfully adopt any modifications which, on a frank 
interchange of opinions my Constitutional advisors may suggest 
and which I shall be satisfied are reconcilable with my 
official duties.'' \28\ He explained that the Indians 
recommended that their propositions be submitted to the Senate, 
and that the Senate's opinion ``will have a salutary effect in 
a future negotiation, if one should be deemed proper.'' \29\ 
Instead of acting unilaterally, Jackson thought it would be 
more satisfactory to the American people and to the Indians to 
have ``the united counsel of the treatymaking power.'' \30\
---------------------------------------------------------------------------
    \28\ Journal of the Executive Proceedings of the Senate, vol. 4, p. 
98.
    \29\ Ibid.
    \30\ Ibid., p. 99.
---------------------------------------------------------------------------
    President James K. Polk also invited the Senate's advice on 
negotiating a treaty. He regarded the Senate as ``a branch of 
the treatymaking power, and by consulting them in advance of 
his own action upon important measures of foreign policy which 
may ultimately come before them for their consideration the 
President secures harmony of action between that body and 
himself.'' \31\
---------------------------------------------------------------------------
    \31\ Richardson, vol. 5, p. 2299.
---------------------------------------------------------------------------

                            indian treaties

    Conclusion of treaties with Indian tribes ended in 1871. 
For almost a century, Indian tribes were treated as independent 
nations and subjected to the treatymaking power of the 
President and the Senate. However, the Constitution also 
empowers Congress to ``regulate Commerce with foreign Nations, 
and among the several States, and with the Indian Tribes.'' 
Partly because of corruption and mismanagement in the Office of 
Indian Affairs, the House of Representatives began to object to 
its exclusion from Indian affairs. In 1869, the Senate added 
funds to an appropriations bill to fulfill Indian treaties it 
had approved, but the House refused to grant the funds.\32\ In 
1871, the House completed its reassertion by enacting this 
language: ``Provided, That hereafter no Indian Nation or tribe 
within the territory of the United States shall be acknowledged 
or recognized as an independent nation, tribe, or power with 
whom the United States may contract by treaty.'' \33\ That 
language was later incorporated into permanent law as 25 U.S.C. 
Sec. 71 (1994).
---------------------------------------------------------------------------
    \32\ Cohen, Felix. Felix Cohen's Handbook on Federal Indian Law 
(1971), p. 66.
    \33\ Act of March 3, 1871, ch. 120, sec. 1, 16 Stat. 566. For 
further involvement of the House and the Senate in the treaty process, 
see Louis Fisher, ``Congressional Participation in the Treaty 
Process,'' University of Pennsylvania Law Review, vol. 137, pp. 1511-
1522 (1989).
---------------------------------------------------------------------------

                       conflicts and cooperation

    Presidents have varied in their attitude toward Senate 
participation in the treaty process. Some have included 
Senators; others have kept the negotiation of treaties an 
executive monopoly. President Woodrow Wilson believed that the 
President should not consult with the Senate and treat it as an 
equal partner. He applied this theory to the Versailles Treaty, 
which the Senate twice rejected.\34\ On the other hand, 
Presidents such as William McKinley, Warren Harding, and 
Herbert Hoover included Senators and Representatives as members 
of U.S. delegations that negotiated treaties. The details of 
the U.N. Charter were hammered out at a conference in San 
Francisco in 1945. Half of the eight members of the U.S. 
delegation came from Congress: Senators Tom Connally (D-Tex.) 
and Arthur H. Vandenberg (R-Mich.) and Representatives Sol 
Bloom (D-N.Y.) and Charles A. Eaton (R-N.J.).
---------------------------------------------------------------------------
    \34\ For academic refutations of Wilson's thesis, see Forrest R. 
Black, ``The United States Senate and the Treaty Power,'' Rocky 
Mountain Law Review, vol. 4, pp. 1-19 (1931); Richard E. Webb, 
``Treaty-Making and the President's Obligation to Seek the Advice and 
Consent of the Senate with Special Reference to the Vietnam Peace 
Negotiations,'' Ohio State Law Journal, vol. 31, pp. 490-519 (1970).
---------------------------------------------------------------------------
    During negotiations of the North Atlantic Treaty, Senators 
Thomas Connally and Arthur Vandenberg were with Secretary of 
State Dean Acheson ``all the time,'' and Senator Walter George 
actually wrote one of the treaty provisions.\35\ The Carter 
Administration consulted with at least 70 Senators during the 
final phase of the negotiations of the Panama Canal Treaty.\36\ 
During 1977 and 1978, 26 Senators served in Geneva as official 
advisers to the SALT II negotiating team.\37\
---------------------------------------------------------------------------
    \35\ ``Executive Privilege: The Withholding of Information by the 
Executive,'' hearings before the Senate Committee on the Judiciary, 92d 
Cong., 1st Sess. (1971), pp. 262-264.
    \36\ I.M. Destler, ``Treaty Troubles: Versailles in Reverse,'' 
Foreign Policy, vol. 35, p. 50 (1978-1979).
    \37\ I.M. Destler, ``Executive-Congressional Conflict in Foreign 
Policy: Explaining It, Coping With It, in Congress Reconsidered 
(Lawrence C. Dodd & Bruce I. Oppenheimer eds., 1981), p. 310.
---------------------------------------------------------------------------
    The notion that the President is the exclusive negotiator 
of treaties and international agreements has been undercut by 
recent trade legislation, which gives Congress a direct role in 
the negotiation process. It has become the practice of Congress 
to offer the President a ``fast-track'' legislative procedure 
for implementing trade agreements with other nations. Fast-
track means that the President's implementing bill is 
automatically introduced in Congress, committees must act 
within a specified number of days, Congress must complete floor 
action within a limited time, and amendments to the bill are 
prohibited either in committee or on the floor. Through this 
procedure, leaders of foreign governments (often with 
parliamentary systems that vest strong powers in the Executive) 
are assured that the trade pact will be given expedited 
consideration by Congress.
    In obtaining these procedural benefits, the President 
recognizes that Members of Congress must be closely involved in 
the negotiations that produce the implementing bill. In 1991, 
after President George Bush asked Congress to extend the fast 
track for a trade pact with Mexico, U.S. Trade Representative 
Carla A. Hills told the Senate Finance Committee that the fast 
track ``is a genuine partnership between the two branches.'' 
Because Congress retained the power to defeat the implementing 
bill, Hills emphasized that Congress ``has a full role 
throughout the entire process in formulating the negotiating 
objectives in close consultation as the negotiations proceed.'' 
\38\ President Bush gave Congress his ``personal commitment to 
close bipartisan cooperation in the negotiations and beyond.'' 
\39\
---------------------------------------------------------------------------
    \38\ ``Extension of Fast Track Legislative Procedures,'' hearings 
before the Senate Committee on Finance, 102d Cong., 1st Sess. (1991), 
p. 9.
    \39\ Public Papers of the Presidents, 1991, I, p. 450.
---------------------------------------------------------------------------

            executive agreements and multilateral agreements

    Early practice ushered in the use of ``executive 
agreements'': international agreements that are not submitted 
to the Senate as treaties.\40\ Legislation in 1792 authorized 
the Postmaster General to make arrangements with foreign 
postmasters for the receipt and delivery of letters and 
packets.\41\ Executive officials also entered into reciprocal 
trade agreements on the basis of statutory authority. Although 
such agreements lacked what the Supreme Court in 1912 called 
the ``dignity'' of a treaty, since they do not require Senate 
approval, they are nonetheless valid international 
compacts.\42\
---------------------------------------------------------------------------
    \40\ For discussion of domestic legal aspects of executive 
agreements, see Chapter IV.
    \41\ 1 Stat. 239 (1792).
    \42\ Altman & Co. v. United States, 224 U.S. 583, 600-01 (1912). In 
United States v. Pink, 315 U.S. 203, 230 (1942), Justice Douglas 
regarded executive agreements as having a ``similar dignity'' with 
treaties.
---------------------------------------------------------------------------
    After the Second World War, the United States entered into 
a dramatically increasing number of international agreements, 
and most of these were concluded as executive agreements. Table 
II-1 depicts the tremendous growth in the number of U.S. 
treaties and other international agreements in 50-year periods 
from 1789 through 1989 and Table II-2 depicts the annual growth 
since 1930. These statistics on treaties and agreements 
``concluded'' means agreements that completed the negotiation 
stage and have been signed but may not yet have entered into 
force. In this data ``concluded'' does not mean agreements and 
treaties that have all entered into force.
    As apparent from the charts, after 1945 the number of 
international agreements concluded annually escalated rapidly. 
One factor was the continuing increase in the number of newly 
independ-


 Table II-1.--Treaties and Executive Agreements Concluded by the United
                          States, 1789-1989 \1\
------------------------------------------------------------------------
                                                               Executive
                     Period                        Treaties   Agreements
------------------------------------------------------------------------
1789-1839.......................................          60          27
1839-1889.......................................         215         238
1889-1939.......................................         524         917
1939-1989.......................................         702      11,698
                                                 -----------------------
    Total.......................................       1,501      12,880
------------------------------------------------------------------------
\1\ Data on the period since 1945 has been furnished by the Department
  of State, Office of the Assistant Legal Adviser for Treaty Affairs.
  Data prior to 1945 is from the Congressional Record, May 2, 1945, p.
  4118. In Borchard, Edwin M. Treaties and Executive Agreements.
  American Political Science Review, v. 40, no. 4, August 1947, p. 735.


            Table II-2.--Treaties and Executive Agreements Concluded by the United States, 1930-1999
----------------------------------------------------------------------------------------------------------------
                          Executive                              Executive                            Executive
   Year      Treaties     Agreements      Year      Treaties     Agreements     Year     Treaties    Agreements
----------------------------------------------------------------------------------------------------------------
   1930          25             11        1950          11            157       1970         20            183
   1931          13             14        1951          21            213       1971         17            214
   1932           1             16        1952          22            291       1972         20            287
   1933           9             11        1953          14            163       1973         17            241
   1934          14             16        1954          17            206       1974         13            229
   1935          25             10        1955           7            297       1975         13            264
   1936           8             16        1956          15            233       1976         13            402
   1937          15             10        1957           9            222       1977         17            424
   1938          12             24        1958          10            197       1978         15            417
   1939          10             26        1959          12            250       1979         28            378
----------------------------------------------------------------------------------------------------------------
   1940          12             20        1960           5            266       1980         26            321
   1941          15             39        1961           9            260       1981         12            322
   1942           6             52        1962          10            319       1982         17            343
   1943           4             71        1963          17            234       1983         23            282
   1944           1             74        1964           3            222       1984         15            336
   1945           6             54        1965          14            204       1985          8            336
   1946          19            139        1966          14            237       1986         17            400
   1947          15            144        1967          18            223       1987         12            434
   1948          16            178        1968          18            197       1988         21            387
   1949          22            148        1969           6            162       1989         15            363
----------------------------------------------------------------------------------------------------------------
                                          1990          20            398
                                          1991          11            286
                                          1992          21            303
                                          1993          17            257
                                          1994          24            338
                                          1995          17            300
                                          1996          48            260
                                          1997          40            257
                                          1998          25            259
                                          1999          26            199
----------------------------------------------------------------------------------------------------------------

ent nations with which the United States interacts. Treaties in 
the early days of the Nation were limited to Indian tribes and 
a comparatively few foreign powers, including France, Great 
Britain, Algiers, Spain, and Russia. By January 1, 1999, the 
United States had bilateral treaties or other international 
agreements with more than 200 countries.\43\
---------------------------------------------------------------------------
    \43\ U.S. Department of State. Treaties in Force. A list of 
treaties and other international agreements of the United States in 
force on January 1, 1999, pp. iii-v.
---------------------------------------------------------------------------
    Another factor was the growing international cooperation of 
the United States, and the continuing emergence of new fields 
of international cooperation, such as atomic energy, space 
research, and satellites. Agreements with a single country 
often cover a whole range of subjects ranging from aviation, 
commerce, and defense to environmental cooperation, patents, 
and taxation. The United States had more than 200 international 
agreements with the United Kingdom in force in 1999, for 
example, listed under almost 60 different subjects.\44\
---------------------------------------------------------------------------
    \44\ Treaties in Force, 1999, pp. 301-312.
---------------------------------------------------------------------------
    Cumulatively, in 1989 the United States was a party to 890 
treaties and 5,117 executive agreements.\45\ The total number 
of treaties and other international agreements in force 
increases with time because, once entered into, agreements 
remain in force until they expire by their own terms or are 
denounced, replaced, or superceded. While some international 
agreements are by their terms temporary or limited to a 
specific time period, others are intended to be more or less 
permanent. To illustrate, still listed among treaties in force 
with the United Kingdom are the Paris Peace Treaty of 1783, the 
Jay Treaty of 1794, and the Treaty of Peace and Amity signed at 
Ghent in 1814.
---------------------------------------------------------------------------
    \45\ Information from the U.S. Department of State, Office of the 
Assistant Legal Adviser for Treaty Affairs, September 29, 2000. 
Comprehensive and detailed data for the years after 1989 is no longer 
being tabulated by the State Department.
---------------------------------------------------------------------------

      increasing proportion of executive and statutory agreements

    Accompanying the increase in international agreements was 
the increase of international agreements other than treaties, 
that is, agreements not submitted to the Senate. As the 
preceding table shows, in the first 50 years of U.S. history, 
twice as many treaties were concluded as executive agreements. 
In the 50-year period from 1839 to 1889 a few more executive 
agreements than treaties were concluded. In the 50-year period 
from 1889 to 1939 almost twice as many executive agreements as 
treaties were concluded. In the period since 1939 executive 
agreements have comprised more than 90 percent of the 
international agreements concluded.
    The growth in executive agreements may be accounted for by 
a number of factors.\46\ A primary factor is the sheer increase 
in volume of the amount of business and contacts between the 
United States and other countries. Many observers believe it 
would be impractical to submit every international agreement 
the United States enters to the Senate as a treaty. An 
executive agreement is usually much simpler to conclude or 
amend than a treaty. The Senate, with an already heavy 
workload, would quickly find itself overburdened if all 
international agreements, no matter how minor in importance, 
were submitted to it for advice and consent.
---------------------------------------------------------------------------
    \46\ Some of the increase since 1973 may be attributed to the 
counting of agency level agreements that may not have been counted 
prior to the passage of the Case-Zablocki Act in 1973, just as the 
decrease in 1991 may be accounted for partly by the cessation of the 
reporting under the Case-Zablocki Act of agricultural commodity 
agreements. See Chapter X.
---------------------------------------------------------------------------
    Most executive agreements are concluded under the authority 
of a statute or prior treaty.\47\ In a wide variety of laws 
Congress has authorized the executive branch to conclude 
international agreements in fields including foreign aid, 
agriculture, and mutual security. Similarly, the Senate has 
approved numerous treaties that implicitly or explicitly 
authorized further agreement among the parties. As an example, 
the executive branch has concluded numerous defense and base 
agreements on the basis of the North Atlantic Treaty and other 
security treaties. One study found that 88.3 percent of 
international agreements reached between 1946 and 1972 were 
based at least partly on statutory authority; 6.2 percent on 
treaties, and 5.5 percent solely on executive authority.\48\
---------------------------------------------------------------------------
    \47\ See also Chapter IV, section on Executive Agreements.
    \48\ U.S. Congress. Senate Committee on Foreign Relations. 
International Agreements: An Analysis of Executive Regulations and 
Practices. Prepared by the Congressional Research Service, Library of 
Congress, 1974-1975, by R. Roger Majak. Committee Print, 1977, p. 22. 
See further discussion in Chapters IV and X.
---------------------------------------------------------------------------
    An increasing number of international agreements require 
the specific approval of Congress before entry into force 
rather than being submitted as treaties to the Senate. On 
occasion, this has been done at the initiative of the executive 
branch with the knowledge that an international agreement was 
unlikely to receive the approval of two-thirds of the Senate, 
or to assure that funds for implementation would be approved by 
the House of Representatives. One historian knowledgeable about 
executive agreements wrote, ``On certain occasions, when the 
treatymaking method has failed or seemed likely to fail, he 
[the President] has accomplished his purpose by substituting 
the more facile type of instrument.'' \49\
---------------------------------------------------------------------------
    \49\ McClure, Wallace Mitchell. International Executive Agreements. 
New York, Columbia University Press, 1941, p. 4.
---------------------------------------------------------------------------
    More often, legislation has required that executive 
agreements in some categories be submitted to Congress for 
specific approval or for tacit approval (through no negative 
action in a specified time period) before they enter into 
force. In trade legislation, Congress has authorized the 
President to negotiate certain agreements but has required that 
Congress approve the agreements, as well as requiring the 
executive branch to notify and consult with Congress during the 
negotiations. Nuclear, fisheries, and social security 
agreements are among those required by law to lie before 
Congress for specified time periods before they can enter into 
force. During this period, Congress can pass legislation 
disapproving the agreements, often with expedited procedures.
    The increasing use of international agreements other than 
treaties challenged the Senate to oversee that the executive 
agreement process was not used when agreements should properly 
be submitted to the Senate as treaties. Similarly, the 
increasing rise of agreements requiring approval by Congress, 
while assuring a congressional role, challenged the Senate to 
distinguish which types of agreements required submission to 
the Senate under the traditional treaty procedure.\50\
---------------------------------------------------------------------------
    \50\ See Chapter X.
---------------------------------------------------------------------------

                   growth in multilateral agreements

    The third main change in the field of international 
agreements is the growth of multilateral agreements, agreements 
among three or more parties as opposed to bilateral treaties 
between two parties. Multilateral agreements for the United 
States were rare prior to the 20th century. After the end of 
the Second World War, their numbers grew as nations found a 
multilateral treaty could render unnecessary dozens of 
bilateral treaties and establish an agreed international 
standard. From 1980 through 1999, the United States concluded 
or acceded to 450 multilateral agreements.\51\
---------------------------------------------------------------------------
    \51\ Information from Office of the Assistant Legal Adviser for 
Treaty Affairs, September 29, 2000.
---------------------------------------------------------------------------
    Multilateral agreements vary widely in number of parties, 
subject matter, and significance. Some have only three parties, 
but others have more than 150. As of October 2000, for example, 
the United Nations had 189 members.\52\ Multilateral agreements 
cover more than 200 different subject areas ranging from Africa 
to World War II and agriculture to women's political 
rights.\53\ Many multilateral agreements establish 
international organizations, which in turn conclude bilateral 
agreements with the United States. The United States has 
concluded bilateral agreements with approximately 50 
international organizations.\54\ Some of these concern routine 
matters such as reimbursement of taxes of employees of these 
organizations, but others concern subjects of broader 
significance, such as the application of international atomic 
energy safeguards in the United States.
---------------------------------------------------------------------------
    \52\ The 189th member was Tuvalu.
    \53\ See Treaties in Force, 1999, pp. v-vii, 331-478.
    \54\ Compiled from Treaties in Force, 1999, pp. iii-v.
---------------------------------------------------------------------------
    Although multilateral executive agreements being concluded 
outnumber multilateral treaties, multilateral agreements form a 
far larger proportion of treaties than of executive agreements. 
Of 415 treaties that the United States concluded from 1980 
through 1999, 155 (37 percent) were multilateral; of 6,381 
executive agreements, 294 (4.6 percent) were multilateral.\55\
---------------------------------------------------------------------------
    \55\ Information from Office of the Assistant Legal Adviser for 
Treaty Affairs, September 29, 2000.
---------------------------------------------------------------------------
    Like executive agreements, the growing number of 
multilateral agreements brought new challenges to the role of 
the Senate in the treatymaking process. A major challenge was 
the pressure to approve a multilateral treaty without 
reservation because of the large number of nations that had 
been involved and the difficulty of renegotiation. Some 
multilateral treaties have contained an article prohibiting 
conditions. The Senate Foreign Relations Committee has said 
that its approval of these treaties should not be construed as 
a precedent for such clauses in future treaties. In the 
committee's view, ``The President's agreement to such a 
prohibition can not constrain the Senate's constitutional right 
and obligation to give its advice and consent to a treaty 
subject to any reservation it might determine is required by 
the national interest.'' \56\
---------------------------------------------------------------------------
    \56\ United Nations Framework Convention on Climate Change. S. 
Exec. Rept. 102-55 to accompany Treaty Doc. 102-38. October 1, 1992, p. 
15. See also Protocol on Environmental Protection to the Antarctic 
Treaty. S. Exec. Rept. 102-54 to accompany Treaty Doc. 102-22. 
September 22, 1992, p. 7.


        III. INTERNATIONAL AGREEMENTS AND INTERNATIONAL LAW \1\
---------------------------------------------------------------------------

    \1\ Prepared by Margaret Mikyung Lee, Legislative Attorney.
---------------------------------------------------------------------------
                              ----------                              

    Treaties are governed by international law and are a 
primary source of international law. They play a central role 
in the orderly conduct of relations among states. In order for 
treaties to perform this role, internationally recognized rules 
governing treaties have developed. Traditionally, treaty rules 
were established by custom and practice, and as a result they 
were not precisely defined.
    Under international law, the term ``treaty'' is applied to 
all binding international agreements between states or between 
states and international organizations. The term 
``international agreement,'' however, includes both binding and 
non-binding agreements. The term ``executive agreement'' is a 
creature of U.S. domestic law, not international law; 
``executive agreements'' that are binding international 
agreements are considered to be ``treaties'' in international 
law terminology.
    This chapter examines the definition of a treaty under 
international law and utilizes the 1969 Vienna Convention on 
the Law of Treaties and the Restatement (Third) of the Foreign 
Relations Law of the United States, as primary sources for such 
law. Because the United States has not ratified the convention, 
its international law status for non-parties is discussed. The 
chapter also reviews the criteria, under international law, 
which make an agreement binding; the principles which can 
render a binding agreement invalid; and the status of ``non-
binding'' agreements and statements under international law.

            A. The Vienna Convention on the Law of Treaties

                        international law status

    The Vienna Convention is in force internationally and has 
been ratified by or acceded to by 91 countries.\2\ The United 
States has signed but has not ratified the Vienna Convention 
and thus is not legally bound by its provisions.\3\ 
Nevertheless, the convention retains its status as a primary 
source of international law concerning treaties, even for non-
parties. The convention is partly a codification of customary 
international law, but also partly a development of 
international law and a reconciliation of different theories 
and practices; provisions in the latter category are binding 
only on the parties.\4\ Furthermore, the convention was not 
intended to be a complete codification of treaty law, and 
issues not covered by the convention continue to be covered by 
principles of customary international law.\5\ The Department of 
State describes the convention as a widely regarded ``major 
achievement in the development and codification of 
international law.'' \6\
---------------------------------------------------------------------------
    \2\ The Vienna Convention on the Law of Treaties, concluded at 
Vienna on May 23, 1969, entered into force for the countries that had 
ratified it on January 27, 1980, upon its ratification or accession by 
35 foreign countries. As of January 19, 2001, it had 46 signatories and 
91 parties. For the text of the Vienna Convention on the Law of 
Treaties and a list of parties thereto, see Appendix 5.
    \3\ Vienna Convention on the Law of Treaties, May 23, 1969, 1155 
U.N.T.S. 331, S. Exec. Doc. L, 92-1 (1971) (hereafter cited as Vienna 
Convention).
    \4\ I.A. Shearer, Starke's International Law 397 (11th ed. 1994); 
M.N. Shaw, International Law 561 (3d ed. 1991).
    \5\ Ibid.
    \6\ Statement regarding the Vienna Convention (unpublished) of Carl 
F. Salans, Acting Legal Adviser, Department of State, before the Senate 
Committee on Foreign Relations, August 3, 1972.
---------------------------------------------------------------------------
    In his letter transmitting the Vienna Convention to the 
President, Secretary of State William P. Rogers referred to it 
as ``* * * a generally agreed body of rules to govern all 
aspects of treaty making and treaty observance.'' He called the 
convention ``* * * an expertly designed formulation of 
contemporary treaty law * * * [that] * * * should contribute 
importantly to the stability of treaty relationships. * * * 
Although not in force, [for the United States] the Convention 
is already recognized as the authoritative guide to current 
treaty law and practice.'' (emphasis added.) \7\
---------------------------------------------------------------------------
    \7\ S. Exec. Doc. L, at 1.
---------------------------------------------------------------------------
    President Richard Nixon attributed similar status to the 
convention when, upon sending it to the Senate, he stated that:
        The growing importance of treaties in the orderly 
        conduct of international relations has made 
        increasingly evident the need for clear, well-defined, 
        and readily ascertainable rules of international law 
        applicable to treaties. I believe that the codification 
        of treaty law formulated by representatives of the 
        international community and embodied in the Vienna 
        Convention meets this need.\8\
---------------------------------------------------------------------------
    \8\ S. Exec. Doc. L, Letter of Transmittal. Despite the 
authoritative status of the convention under international law, in a 
few instances it appears to differ from customary international law and 
U.S. practice. For example, the convention definition of a treaty does 
not include oral agreements (Article 2) although according to the 
convention, its definition shall not affect the legal force of such 
agreements (Article 3(a)). Also, the convention permits a treaty to 
prohibit reservations (Article 19), which is contrary to the strong 
position taken by the Senate Foreign Relations Committee against the 
inclusion of provisions in agreements that would inhibit the power of 
the Senate to attach reservations. However, it has recommended advice 
and consent to some treaties containing such provisions, while 
affirming opposition to such provisions and declaring that approval of 
a treaty containing such a provision is not to be considered a 
precedent for acceptance of such provisions. See S. Exec. Rept. 105-25, 
at 18-19 (1998) (the World Intellectual Property Organization Copyright 
Treaty and Performances and Phonograms Treaty); S. Exec. Rept. 102-55, 
at 15 (1992) (the United Nations Framework Convention on Climate 
Changes); S. Exec. Rept. 102-54 (1992) (the Protocol on Environmental 
Protection to the Antarctic Treaty); S. Exec. Rept. 85-3, at 17 (1957) 
(Statute of International Atomic Energy Agency). Regarding differences 
between customary and conventional treaty law, see American Law 
Institute, Restatement (Third) of the Foreign Relations Law of the 
United States (1987) (hereafter cited as Rest. 3d). The Restatement 
accepts the Vienna Convention as, in general, constituting a 
codification of the customary international law governing international 
agreements, and therefore as foreign relations law of the United States 
even though the United States has not adhered to the convention. In a 
few instances, the convention moves beyond or deviates from accepted 
customary international law, and the Restatement therefore departs from 
the convention pending U.S. adherence to it. In a few other instances, 
the difference between the convention and customary law is a matter of 
emphasis and degree and can be accommodated within the text of the 
convention. Since the United States may become a party to the 
convention, the Restatement uses the text of the convention as a guide, 
with deviations indicated as appropriate in Comment and Reporters' 
notes. Rest. 3d, Vol. I, Part III, Introductory Note, at 145.

    The State Department's position on the status of the Vienna 
Convention largely accords with the positions of most members 
of the international community.\9\ This status stems in part 
from the concept that international treaties constitute one of 
the most significant sources of international law. For example, 
the Statute of the International Court of Justice directs the 
Court, when deciding disputes, to apply international law 
gleaned from a variety of sources beginning with international 
conventions.\10\
---------------------------------------------------------------------------
    \9\ The convention is the final product of a U.N. Conference on the 
Law of Treaties. The International Law Commission, which initially 
drafted the convention, was established to implement Article 13 of the 
U.N. Charter, which called for the General Assembly to initiate studies 
and make recommendations for purposes that include the ``progressive 
development of international law and its codification.'' Article 1 of 
the International Law Commission's statute charged it with this task. 
See G.A. Res. 174 (II), U.N. GAOR, 2d Sess., November 21, 1947. Members 
of the U.S. Senate were apparently not participants in, and not 
consulted on, the Commission's drafting or adoption of its final draft 
text of the Vienna Convention. However, as the Commission's membership 
consists of individual members and not government delegations, no 
requirement for either formal or informal Senate involvement existed at 
this stage of the convention's formulation.
    \10\ Article 38 of the Statute of the International Court of 
Justice, June 26, 1945. Other sources of international law cited by 
this Article include international custom and general principles of law 
recognized by civilized nations. Domestic judicial decisions and the 
teachings of judicial scholars are named as subsidiary means for the 
determination of rules of international law.
---------------------------------------------------------------------------
    Multilateral agreements, of which the Vienna Convention is 
a prime example, are not only an evidentiary source of 
recognized customary international law. They may also 
contribute to the progressive development of international law 
by expressing rules which may not yet be fully recognized by 
the international community. The International Court of Justice 
has on occasion noted that provisions contained in such 
agreements may be binding on a state as customary law even if a 
state is not a party to the agreement.\11\ A determination of 
whether a given provision of such an agreement expresses 
customary law may entail a consideration of (1) whether the 
provision was intended to codify settled law at the time of 
drafting, (2) whether an evolving rule of settled law expressed 
by the provision had become settled customary law by the time 
the agreement was concluded or entered into force, and finally, 
(3) whether a rule, which was experimental or evolving when the 
agreement expressing it in a provision was concluded or entered 
into force, has become customary international law with the 
passage of time since the agreement's conclusion or entry into 
force.\12\ So the Vienna Convention contains rules governing 
treaty relationships that are recognized as general principles 
of international law by the executive and judicial branches of 
the United States, as well as by the international community, 
even though the United States has not ratified it.\13\ Senate 
advice and consent to future treaties will, as a result, be 
influenced by the Vienna Convention, even if the United States 
does not become a party to it.
---------------------------------------------------------------------------
    \11\ See North Sea Continental Shelf cases (F.R.G. v. Den., F.R.G. 
v. Neth.), 1969 ICJ 3, 28-29, 37-46, 53 (Feb. 20).
    \12\ Ibid.
    \13\ See, for example, Weinberger v. Rossi, 456 U.S. 25, 29 note 5 
(1982) (citing the draft Rest. 3d, Introductory Note 3, p. 74 (Tent. 
Draft No. 1, Apr. 1, 1980)). For additional discussion, see Maria 
Frankowska, The Vienna Convention on the Law of treaties before United 
States Courts, 28 Va. J. Int'l L. 281-391 (1988).
---------------------------------------------------------------------------

                    senate action on the convention

    The Vienna Convention on the Law of Treaties was sent to 
the Senate on November 22, 1971, and remains in committee. The 
Senate Committee on Foreign Relations ordered reported a 
Resolution of Advice and Consent to the Ratification of the 
Convention on September 7, 1972, subject to an understanding 
and interpretation. The Department of State opposed the wording 
of the understanding, and the convention was reconsidered in 
executive session by the committee, but not reported out.\14\
---------------------------------------------------------------------------
    \14\ See U.S. Department of State, Digest of United States Practice 
in International Law, 1974, 195-198 (1975) (hereafter cited as Digest, 
1974).
---------------------------------------------------------------------------
    The wording proposed by the committee read:
        subject to the interpretation and understanding, * * * 
        that, in accordance with Article 46 of the Convention 
        [relating to a state's right to invalidate a treaty if 
        its consent was obtained by a manifest violation of an 
        internal law of fundamental importance], since Article 
        2, Section 2, of the United States Constitution states 
        that 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,'' 
        it is a rule of internal law of the United States of 
        fundamental importance that no treaty (as defined by 
        paragraph 1(a) of Article 2 of the Convention) is valid 
        with respect to the United States, and the consent of 
        the United States may not be given regarding any such 
        treaty, unless the Senate of the United States has 
        given its advice and consent to such treaty, or the 
        terms of such treaty have been approved by law, as the 
        case may be.\15\
---------------------------------------------------------------------------
    \15\ Ibid., at 195 (comments and emphasis added).

    Acceptance of this wording would have achieved two 
objectives desired by the Senate committee. First, it would 
have made clear that the Vienna Convention does not establish 
an international law rule which could hold the United States 
bound to a treaty which a President had signed, but which the 
Senate had not accepted.\16\ Furthermore, it would have made 
clear that an international instrument is voidable if concluded 
by a President in the form of an executive agreement that 
should have been treated either as a treaty under Article II, 
Section 2, to which the Senate should have consented, or 
presumably a congressional-executive agreement to which both 
Houses of Congress should have agreed. The wording of the 
proposed Senate interpretation would seem to make agreements 
concluded by a President, on his own independent constitutional 
authority, subject to Senate advice and consent. The wording, 
therefore, could be seen as severely limiting a President's 
independent authority to make binding and firm international 
commitments.
---------------------------------------------------------------------------
    \16\ The convention does not definitively resolve this issue. See 
later discussion in this chapter entitled: ``Invalidation by Violation 
of Domestic Law Governing Treaties.''
---------------------------------------------------------------------------
    The wording of the Senate's interpretation was not 
acceptable to the executive branch because the term ``treaty'' 
under the Vienna Convention includes agreements which are not 
``treaties'' under Article II, Section 2, of the 
Constitution.\17\ In response to the Senate's proposed 
interpretation and understanding, the Department of State 
suggested that the Senate's intent could be expressed along the 
following lines: ``with the understanding and interpretation 
that ratification of the Convention by the United States does 
not give any international agreement of the United States any 
internal standing under the Constitution of the United States 
that it would not have in the absence of the Convention.'' \18\
---------------------------------------------------------------------------
    \17\ This is the part of the U.S. Constitution which requires 
Senate advice and consent to treaties.
    \18\ See Digest, 1974, supra note 14, at 197.
---------------------------------------------------------------------------
    The Department of State, in comments on a subsequently 
proposed Senate interpretation suggested by the Chief of Staff 
of the Foreign Relations Committee, highlighted the issue as 
follows:
        * * * there is a very considerable difference between 
        the use of the term ``treaty'' in the Vienna Convention 
        and the generally accepted use of that term in the 
        internal law of the United States.
        * * * the term ``treaty'' under the internal law of the 
        United States is restricted to the term as used in 
        Article II, Section 2, of the Constitution.
        * * * the term treaty as used in our internal law does 
        not include international agreements made pursuant to a 
        treaty, international agreements authorized by 
        Congress, or international agreements made pursuant to 
        the President's constitutional authority [emphasis 
        added].\19\
---------------------------------------------------------------------------
    \19\ Letter dated January 31, 1974, Digest, 1974, supra note 14, at 
196. The text of the alternative interpretation and understanding, 
proposed on November 8, 1973, by Carl Marcy, the Chief of Staff of the 
Foreign Relations Committee at the time, would make any resolution of 
ratification ``subject to the interpretation and understanding, which 
understanding and interpretation are made a part and condition of the 
resolution of ratification, that within the meaning of Article 46 of 
the Convention, Article 2, Section 2, of the United States 
Constitution, stating that 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,' is a rule of the internal law 
of the United States of fundamental importance'' [emphasis added].

    In 1984, Robert Dalton, Assistant Legal Adviser for Treaty 
Affairs, explained the department's objection to the 
interpretation and understanding proposed by the committee in 
1973 in the following way:
        * * * The Department was concerned that other countries 
        might conclude that, by making the interpretation and 
        understanding, the United States was intending to 
        abandon the practice of making executive agreements * * 
        *, or was attempting to avoid application of the 
        principle of pacta sunt servanda to those agreements by 
        reserving the possibility of invoking article 46 of the 
        Vienna Convention if it found the provisions of any 
        such agreement to be unduly onerous.\20\
---------------------------------------------------------------------------
    \20\ Robert E. Dalton, The Vienna Convention on the Law of 
Treaties: Consequences for the United States, in Proceedings of the 
American Society of International Law at its 78th Annual Meeting 277 
(1984).

    He stressed that the Vienna Convention had already 
influenced U.S. treaty practice in a number of ways, and that 
not being a party sometimes made it difficult to invoke the 
convention's rules in treaty relations with states that were 
parties.
    In the same forum, two former chief counsels of the Foreign 
Relations Committee supported becoming party to the convention, 
although both appeared to favor some kind of understanding to 
deal with the executive agreement issue. Frederick Tipson 
stressed the importance for the United States to follow through 
on negotiations after they had been concluded and treaties 
signed. But he also cited the need to clarify a number of 
important domestic constitutional procedures. In his view ``the 
United States could not afford to leave in limbo a series of 
important issues which remained outstanding between the 
Congress and the executive branch in the area of international 
agreements. Some effort should be made to remedy the situation 
by attempting to arrive at a consensus on several of these 
issues.'' \21\ Michael Glennon said the benefits of 
ratification outweighed the costs, and favored a ``stand-still 
provision'' that nothing in the convention should be construed 
as conferring any authority upon the President under U.S. law 
that he would not have had in its absence, along the lines of 
the earlier State Department proposal.\22\
---------------------------------------------------------------------------
    \21\ Ibid., at 283-284.
    \22\ Ibid., at 292.
---------------------------------------------------------------------------
    In 1986 the Foreign Relations Committee again held a 
hearing on the Vienna Convention on the Law of Treaties as well 
as several other treaties. Mary V. Mochary, Deputy Legal 
Adviser of the Department of State, spoke of the advantages of 
becoming a party to the treaty. She stressed the wide support 
for the convention in the academic and legal community, and the 
advantages of having a precise statement of customary law. She 
added, ``Moreover, the Convention includes procedural 
mechanisms for settlement of disputes that do not reflect 
customary law and cannot be invoked by the United States until 
it becomes a party to the convention.'' \23\
---------------------------------------------------------------------------
    \23\ Private Law Treaties: Hearing on S. Exec. Doc. L, 92-1, S. 
Treaty Docs. 97-12, 98-9, 98-27, 98-29, 99-11,, and S. 1828 Before the 
Senate Comm. on Foreign Relations, 99th Cong. (1986) (stenographic 
transcript of Hearing, June 11, 1986) (hereafter cited as Vienna 
Convention, 1986 hearings).
---------------------------------------------------------------------------
    On the issue of executive agreements, Arthur Rovine, a 
former Assistant Legal Adviser on Treaty Affairs for the 
Department of State and representing the American Bar 
Association, expressed the view that the Vienna Convention had 
fallen ``victim in the post-Vietnam and post-Watergate period 
to an attempt to limit the President's constitutional and 
statutory power to enter into international executive 
agreements.'' But in his view these were old issues having no 
bearing on the convention, and had been resolved by the Case-
Zablocki Act of 1972 on the reporting of all international 
executive agreements to Congress and related procedures on 
consultation on the form of an agreement.\24\
---------------------------------------------------------------------------
    \24\ Vienna Convention, 1986 hearings. For discussion of the Case-
Zablocki Act, see Chapter X.
---------------------------------------------------------------------------
    At the hearing, Assistant Legal Adviser for Treaty Affairs 
Robert Dalton specified that the administration favored Senate 
advice and consent to the convention without reservation or 
understanding. In answer to supplementary written questions 
from the Foreign Relations Committee, the State Department 
reiterated its objections to the interpretation and 
understanding that had been proposed in 1972 by Senator Case. 
It argued that the proposed understanding would hamper the 
ability of the President to resolve international differences 
or undertake international cooperation by concluding agreements 
quickly, and that it would put the United States at a 
disadvantage in international negotiations by depriving it of 
the ability to make agreements with immediate binding effect to 
obtain and formalize concessions from other governments.\25\
---------------------------------------------------------------------------
    \25\ Vienna Convention, 1986 hearings. Answers to questions 
submitted by J. Edward Fox, Assistant Secretary, Legislative and 
Intergovernmental Affairs, July 24, 1986.
---------------------------------------------------------------------------
    The committee also submitted the question of whether the 
administration believed the U.S. constitutional requirement for 
advice and consent to be ``a rule of internal law of 
fundamental importance.'' The department replied the 
administration believed it was ``a rule of internal law of 
fundamental importance,'' enshrined in the Constitution. But, 
the department said, other relevant rules enshrined in the 
Constitution were also rules of fundamental importance, 
including the President's power as Commander-in-Chief, the 
executive power clause, and clauses relating to the reception 
of ambassadors and taking care that laws be faithfully 
executed. The department continued:
        If the resolution of advice and consent is to refer to 
        one rule of internal law of fundamental importance 
        relating to the conclusion of treaties as that term is 
        used in the Vienna Convention on the Law of Treaties, 
        it should also refer to the other relevant rules of 
        internal law. To draft such an understanding and 
        interpretation would require the preparation of a gloss 
        on the Constitution on which history shows it would be 
        exceedingly difficult for the executive branch and the 
        Congress as a whole promptly to agree. To fail to 
        include all the relevant rules would confuse foreign 
        countries and make it more difficult for the President 
        to exercise the full range of powers relating to 
        foreign affairs accorded to him under the 
        Constitution.\26\
---------------------------------------------------------------------------
    \26\ Ibid.

    Thus the Vienna Convention has become caught up in a long-
term controversy on the roles of the legislative and executive 
branches in the making of international agreements.

                          B. Treaty Definition

    The Vienna Convention establishes a comprehensive 
definition of a treaty in international law without prejudice 
to differing uses of the term ``treaty'' in the domestic laws 
of various states.\27\
---------------------------------------------------------------------------
    \27\ Vienna Convention, Art. 2, Sec. 2.
---------------------------------------------------------------------------
    Under the definition of a treaty provided by the Vienna 
Convention,
        treaty means an international agreement concluded 
        between states in written form and governed by 
        international law, whether embodied in a single 
        instrument or in two or more related instruments and 
        whatever its particular designation.\28\
---------------------------------------------------------------------------
    \28\ Vienna Convention, Art. 2, Sec. 1(a). Note also that the U.N. 
Charter employs the term ``treaty'' but does not define it. The 
charter, in Article 102, provides ``Every treaty and every 
international agreement entered into by any Member of the United 
Nations * * * shall * * * be registered with the Secretariat and 
published by it.'' Note further that the U.N. Secretariat ``follows the 
principle that it acts in accordance with the position of the Member 
States submitting an instrument for registration that so far as that 
party is concerned the instrument is a treaty or an international 
agreement within the meaning of Art. 2. Registration of an instrument 
submitted by a Member State, therefore, does not imply a judgment by 
the Secretariat on the nature of the instrument, the status of a party, 
or any similar question.'' See Leland Goodrich, Edvard Hambro, and Anne 
Patricia Simons, Charter of the United Nations 612 (3d ed. 1969).

    The Vienna Convention applies the term ``treaty'' to formal 
agreements designated as treaties and also to other agreements 
in simplified form, such as exchanges of notes. While the 
convention does not encompass unwritten agreements or 
agreements concluded with or by international organizations, it 
does not affect the validity of such agreements under 
international law.\29\
---------------------------------------------------------------------------
    \29\ Vienna Convention, Art. 3.
---------------------------------------------------------------------------

           C. Criteria for a Binding International Agreement

    A paramount principle of international law is pacta sunt 
servanda--that treaties must be kept. Treaties, therefore, are 
binding under international law. However, in the conduct of 
international relations, nations conclude business contracts or 
enter into understandings that fall short of being binding 
agreements with the status of international treaties.\30\ It 
is, therefore, vital to understand the elements that are 
necessary for an agreement to be considered a treaty under 
international law. Important criteria in determining this 
include: (1) the intention of the parties to be bound under 
international law, (2) the significance of the agreement, (3) 
the specificity of the agreement, and (4) the form of the 
agreement.
---------------------------------------------------------------------------
    \30\ The Department of State has compiled guidelines for internal 
purposes for determining the elements of a legally binding 
international agreement. The gist of these guidelines is: (1) The 
parties to an agreement must intend to be bound under international 
law. (2) The agreement must be of international significance and not 
deal with trivial matters. (3) The obligations undertaken must be 
clearly specified and be objectively enforceable. (4) The agreement 
must have two or more parties. (5) The agreement will preferably use a 
customary form. If not, content and context must reveal a legally 
binding intent. See Memorandum of March 12, 1976, from Monroe Leigh, 
Legal Adviser, Department of State, to all key Department personnel, 
reprinted in U.S. Department of State, Digest of United States Practice 
in International Law, 1976, 263-267 (1977) (hereafter cited as 
Department of State Memo of March 12, 1976). The memo stated that for 
``purposes of implementing legal requirements with respect to 
publication of international agreements and transmittal of 
international agreements to Congress, the Legal Adviser applies the * * 
* [above] criteria in deciding what constitutes an international 
agreement.'' These guidelines were subsequently incorporated in 
regulations designed to assist agencies in determining if agreements 
constitute international agreements within the meaning of the Case-
Zablocki Act. See 22 CFR part 181. The text of the regulations are 
contained in Appendix 3 of this volume.
---------------------------------------------------------------------------

      intention of the parties to be bound under international law

    So far as the U.S. State Department is concerned, treaties 
cannot be concluded unless the parties involved intend their 
acts to be legally binding.\31\ Documents that are intended to 
invoke purely political or moral obligations are not, 
therefore, treaties under international law. The Final Act of 
the Conference on Security and Cooperation in Europe (CSCE) or 
``Helsinki Accords'' adopted August 2, 1975, and most of the 
subsequent agreements concluded by the CSCE fall into this 
category.\32\ For example, the Vienna Document of March 4, 
1992, states in paragraph 156: ``The measures adopted in this 
document are politically binding and will come into force on 1 
May 1992.'' \33\
---------------------------------------------------------------------------
    \31\ Department of State Memo of March 12, 1976, supra note 30.
    \32\ Conference on Cooperation and Security in Europe: Final Act, 
Helsinki, August 1, 1975, 14 I.L.M. 1292 (1975); 73 Dep't St. Bull. 323 
(1975) (hereafter cited as Helsinki Accords).
    \33\ Vienna Document 1992 of the Negotiations on Confidence and 
Security-Building Measures Convened in Accordance with the Relevant 
Provisions of the Concluding Document of the Vienna Meeting of the 
Conference on Security and Cooperation in Europe, 3 Dep't St. Dispatch 
Supp. (July 1992).
---------------------------------------------------------------------------
    Furthermore, a binding international agreement must be 
subject to international law and not the law of another legal 
system. For example, if an agreement specifies that it is to be 
governed by the law of a particular nation, the mention of 
governing domestic law would probably be construed as negating 
an intent to be bound by international law. To illustrate this 
point, the State Department notes that a (hypothetical) foreign 
military sales contract, specifying that it is governed by the 
law of the District of Columbia, is not a binding international 
agreement.\34\ Although many international agreements are 
silent as to which law governs them, the intent of the makers 
normally is that international law apply.\35\
---------------------------------------------------------------------------
    \34\ Department of State Memo of March 12, 1976, supra note 30 at 
265.
    \35\ Ibid.
---------------------------------------------------------------------------
    This element--that the parties must intend an agreement to 
be legally binding under international law--is incorporated 
into the definition of an international agreement in the 
Restatement (Third) of the Foreign Relations Law of the United 
States. The Restatement, while lacking the force of formally 
enacted law, has been cited as evidence of the law in the 
decisions of U.S. courts.\36\ The Restatement defines an 
international agreement in the following manner:
---------------------------------------------------------------------------
    \36\ See, for example, Dames & Moore v. Regan, 453 U.S. 654, 680 
(1981). Rest. 3d, Sec. 301(1) (1987). The Restatement (Third) was 
adopted and promulgated by the American Law Institute (a private 
organization) on May 14, 1986. The ``Restatement represents the opinion 
of the American Law Institute as to the rules that an impartial 
tribunal would apply if charged with deciding a controversy in 
accordance with international law.'' Ibid., at 3.
---------------------------------------------------------------------------
        ``International agreement'' means an agreement between 
        two or more states or international organizations that 
        is intended to be legally binding and is governed by 
        international law; * * *.\37\
---------------------------------------------------------------------------
    \37\ Rest. 3d, Sec. 301(1).
---------------------------------------------------------------------------

                              significance

    To have the status of a treaty under international law, an 
agreement should concern itself with significant matters. It 
cannot deal with trivial matters alone, even if they are 
couched in legal language and form.\38\ The significance of an 
agreement is frequently characterized as a matter of degree. 
For example, ``a promise to sell one map to a foreign nation is 
not an international agreement; a promise to sell one million 
maps probably is * * *.'' \39\ The exact point, however, 
between 1 and 1 million maps at which the transaction becomes 
an international agreement is difficult to determine. Since 
there are no detailed guidelines to assist in deciding the 
level of significance needed, the answer is largely a matter of 
judgment within the context of a particular transaction.\40\
---------------------------------------------------------------------------
    \38\ Department of State Memo of March 12, 1976, supra note 30.
    \39\ Ibid.
    \40\ See Arthur Rovine, Separation of Powers and International 
Agreements, 52 Ind. L. J. 402-403 (1950). Note also that the Department 
of State provides some guidance in a letter of September 6, 1973, from 
Acting Secretary of State Kenneth Rush to Secretary of Defense James R. 
Schlesinger. This letter requires transmittal to the State Department 
[for possible transmittal to the Congress] of ``* * * any agreements of 
political significance, any that involve a substantial grant of funds, 
any involving loans by the United States or credits payable to the 
United States, any that constitute a commitment of funds that extends 
beyond a fiscal year or would be a basis for requesting new 
appropriations, and any that involve continuing or substantial 
cooperation in the conduct of a particular program or activity, such as 
scientific, technical, or other cooperation, including the exchange or 
receipt of information and its treatment.'' For the full text of the 
letter, see Congressional Oversight of Executive Agreements: Hearing 
Before the Subcommittee on Separation of Powers, Senate Committee on 
the Judiciary, 94th Cong. 101 (1975). As noted above, the meaning of 
the term ``treaty'' under the U.S. Constitution and domestic laws is 
narrower than its meaning under international law. A number of 
``executive agreements'' under domestic laws would qualify as treaties 
under international law, but not all agreements concluded by the 
executive branch have the significance sufficient to be considered 
treaties under international law. The guidelines in the Department of 
State letter are meant to enable executive branch agencies to determine 
which executive agreements qualify as treaties under international law 
and therefore must be reported to Congress.
---------------------------------------------------------------------------

                              specificity

    A treaty should clearly and specifically describe the 
obligations legally assumed by the parties.\41\ This requires 
that the terms setting out the obligations assumed by parties 
be worded specifically, so that an observer can determine 
fairly objectively whether a party is legally bound. Thus, 
international diplomatic undertakings which do not specifically 
describe precise legal obligations, are not legally binding. An 
example would be a promise ``to help develop a more viable 
economic system.'' In contrast, a promise to deliver 1,000 
tractors of a specified type, for a specified amount of money, 
to be delivered at a specified place, on a specific date, sets 
forth the definable obligations necessary to make such a 
promise legally binding.
---------------------------------------------------------------------------
    \41\ Department of State Memo of March 12, 1976, supra note 30, at 
266.
---------------------------------------------------------------------------
    This does not mean, however, that every provision of a 
treaty must meet this criterion of specificity in order for the 
treaty to be legally binding. In fact, treaties often contain 
individual clauses which describe in non-specific terms 
obligations assumed by the parties.

                         form of the agreement

    Form is not central to the validity of a binding 
international agreement, but it may reflect the intention of 
the parties to conclude an agreement, or something less than an 
agreement.\42\ Thus, in all probability a formal document 
entitled ``agreement''--one with final clauses, signature 
blocks, entry into force dates, and dispute settlement 
provisions--would reflect a general intent to conclude an 
international agreement.
---------------------------------------------------------------------------
    \42\ Ibid. Also, the International Court of Justice has 
consistently stated that form ``* * * is not a domain in which 
international law imposes any special or strict requirements.'' Nuclear 
Tests case (Austl. v. Fr.), 1974 I.C.J. 253, 267-268 (Dec. 20).
---------------------------------------------------------------------------
    It is emphasized that the substance, and not the form, of 
the agreement determines whether it is a treaty. Occasionally, 
however, the failure to follow a customary form to conclude an 
agreement may constitute evidence of an intent not to be 
legally bound. In such cases, it is important to determine 
whether the general content of the agreement and the context of 
its making reveal an intent to be legally bound; if so, the 
lack of a customary or proper form will not be decisive. 
Moreover, if an agreement is the product of formal 
international negotiations by diplomats, this may be construed 
as supporting evidence of an intent to be legally bound.\43\
---------------------------------------------------------------------------
    \43\ Department of State Memo of March 12, 1976, supra note 30 at 
266.
---------------------------------------------------------------------------
    Inasmuch as the substance, not the form, governs the 
validity of an international agreement, it is possible to have 
binding agreements that are not in writing, although in 
practice this rarely occurs. Hence, ``whether a statement is 
made orally or in writing makes no essential difference * * 
*.\44\ The Vienna Convention does not apply to binding oral 
agreements, but as a matter of practice, international 
agreements are usually in written form.\45\
---------------------------------------------------------------------------
    \44\ Nuclear Tests cases at 267. Although the Vienna Convention 
applies only to instruments in written form (Art. 2(1)(a)), it does not 
affect the validity of unwritten agreements (Art 3). Under customary 
international law, oral agreements are just as binding as written ones. 
See Legal Status of Eastern Greenland, 1933 P.C.I.J. (ser. A/B) No. 53, 
at 71. Furthermore, the text of the Case-Zablocki Act, Pub. L. No. 92-
403, 86 Stat. 619 (1972), reprinted as amended at 1 U.S.C. 112b(a), 
specifically requires transmittal to Congress, of ``the text of any 
oral international agreement.''
    \45\ Rest. 3d, Sec. 301, Comment b; and Vienna Convention, Art. 
2(1)(a) and Art. 3.
---------------------------------------------------------------------------
    A wide variety of descriptive terms may be used to describe 
international agreements, but these terms do not in themselves 
determine whether an agreement has the status of a treaty. They 
may, nevertheless, be considered a factor among others in 
determining whether the parties intend to create an 
internationally legally binding agreement. Relevant terms 
include treaty, convention, protocol, declaration, agreement, 
act, covenant, statute, concordat, exchange of notes, 
memorandum of agreement, memorandum of understanding, modus 
vivendi or charter.\46\ Often there is no apparent reason for 
the use of one title as opposed to another, and the choice is 
frequently the result of non-legal considerations.
---------------------------------------------------------------------------
    \46\ Rest. 3d, Sec. 301, Comment a.
---------------------------------------------------------------------------

  D. Limitations on Binding International Agreements and Grounds for 
                              Invalidation

    International law does not limit the subject matter of 
international agreements. However, many theorists of 
international law argue that certain principles of 
international law cannot be violated by a treaty without 
rendering a treaty void. Thus, it would be widely agreed that a 
pact of aggression between two states against a third state 
could not have the force of international law as it would 
violate norms in the U.N. Charter prohibiting the use of force 
except in self defense.\47\ Other circumstances enable a 
signatory to invalidate a treaty if it chooses to do so. For 
example, an error made by a state concluding a treaty, which 
formed an essential basis of its consent to be bound, would 
permit that state to invoke the error to invalidate the treaty.
---------------------------------------------------------------------------
    \47\ U.N. Charter, Art. 2, Sec. 4, and Art. 51. See Georg 
Schwarzenberger and E.D. Brown, A Manual of International Law 24 (6th 
ed. 1976).
---------------------------------------------------------------------------
    If principles are violated which make a treaty void, the 
treaty cannot be in effect--or ever have been in effect--and 
there can be no question of seeking redress for violating it. 
However, some grounds for invalidity are voidable, that is, the 
aggrieved state has the option of maintaining the treaty in 
force or declaring it invalid.

          invalidation by fraud, corruption, coercion or error

    Consent is necessary for a state to be bound by a treaty 
\48\ and it may be expressed in many ways.\49\ Since consent 
implies a voluntary decision, it can be negated by coercion, 
fraud, and corruption of agents who are giving authorized 
consent for their state. Consent of a state to be bound by a 
treaty may also be negated by error.\50\
---------------------------------------------------------------------------
    \48\ Vienna Convention, Art. 13, and Rest. 3d, Sec. 12(1).
    \49\ Vienna Convention, Art. 11-18, and Rest. 3d, Sec. 312(1).
    \50\ Vienna Convention, Art. 48, and Rest. 3d, Sec. 331(1)(a).
---------------------------------------------------------------------------
    Current international rules relating to coercion, fraud and 
corruption as a basis for invalidating consent to a treaty have 
been summarized in the Restatement (Third) as follows:
        (1) A state may invoke only the following grounds to 
        invalidate its consent to be bound by an agreement:
                (a) an error as to a fact or situation which 
                was assumed by that state to exist at the time 
                of the agreement and which formed the basis of 
                its consent to be bound.\51\
---------------------------------------------------------------------------
    \51\ Rest. 3d, Sec. 331. The wording of this section essentially 
follows that of the Vienna Convention which lists ``error'' as a ground 
that may be invoked to invalidate consent to be bound (Art. 48). Such 
error must relate ``to a fact or situation which was assumed by that 
State to exist at the time when the treaty was concluded and formed an 
essential basis of its consent to be bound.'' However, under the Vienna 
Convention, a state may not invoke error if it contributed to the error 
by its own conduct or if circumstances were such as to put the state on 
notice of a possible error (Art. 48(2)). Also, error in the wording of 
an agreement, such as a typographical error, is not a ground for 
invalidating it; special procedures are established for the correction 
of such errors. Vienna Convention, Articles 48(3) and 79. See Rest. 3d, 
Sec. 331, Comment b.
---------------------------------------------------------------------------
                (b) the fraudulent conduct of another 
                negotiating state that induced its consent; or
                (c) the corruption of the state's 
                representative by another negotiating state.
        (2) An international agreement is void
                (a) if a state's consent to the agreement was 
                procured by the coercion of the state's 
                representative, or by the threat or use of 
                force against the state in violation of the 
                principles of international law embodied in the 
                Charter of the United Nations; * * *.\52\
---------------------------------------------------------------------------
    \52\ Rest. 3d, Sec. 331. This section combines and follows the rule 
stated in the Vienna Convention in Arts. 49-53.
---------------------------------------------------------------------------

      invalidation by conflict with a peremptory norm of general 
                     international law (jus cogens)

    Traditionally, many theorists of general international law 
have argued that there exists a jus cogens or superior law 
which holds a special status internationally and which cannot 
be violated by a treaty.\53\ Although legal theorists differ as 
to which international rules currently have the status of jus 
cogens, they tend to agree that attainment of this status is 
largely the result of an evolutionary process. Notwithstanding 
uncertainty as to what rules are, and what rules may become, 
jus cogens, the Vienna Convention accords recognition to the 
concept of such rules.
---------------------------------------------------------------------------
    \53\ See Georg Schwarzenberger and E.D. Brown, A Manual of 
International Law 24 (6th ed. 1976).
---------------------------------------------------------------------------
    The principle of jus cogens \54\ holds that an 
international agreement is void if at its inception it 
conflicts with a peremptory norm of general international 
law.\55\ The Vienna Convention in Article 53 defines a 
``peremptory norm of general international law'' as:
---------------------------------------------------------------------------
    \54\ Compelling law which is binding on parties regardless of their 
will and will not yield to other laws.
    \55\ Vienna Convention, Art. 53, Rest. 3d, Sec. 331(2)(b) and 
Comment e.
---------------------------------------------------------------------------
        * * * a norm from which no derogation is permitted and 
        which can be modified only by a subsequent norm of 
        general international law having the same character.

    These norms are rules commonly accepted as holding a 
superior status and which therefore cannot be affected by a 
treaty. Thus, a norm cannot be jus cogens unless the 
international community accepts both the norm and its 
peremptory character. Under the convention, the emergence of a 
new peremptory norm voids any treaty provision violating the 
new norm.\56\
---------------------------------------------------------------------------
    \56\ However, the emergence of a new rule of jus cogens will not 
have retroactive effect on the validity of a treaty. Accordingly, the 
invalidity will only attach from the time the new rule is established. 
See Vienna Convention, Art. 64; International Law Commission Report, 61 
Am. J. Int'l L. 412 (1967).
---------------------------------------------------------------------------
    It is accepted that certain obligations of member states 
under the U.N. Charter constitute jus cogens.\57\ Thus, the 
example provided earlier, of an aggression pact between two 
states against a third which provides that their two armies 
will jointly invade the third state, subjugate it, and jointly 
rule it, is generally accepted as violating a jus cogens rule 
against the use of aggressive force.\58\ There is, however, 
substantial uncertainty as to what other norms are peremptory 
and therefore constitute jus cogens. Some interpretations of 
peremptory norms might include ``rules prohibiting genocide, 
slave trade and slavery, apartheid and other gross violations 
of human rights, and perhaps attacks on diplomats.'' \59\
---------------------------------------------------------------------------
    \57\ Rest. 3d, Sec. 331, Reporters' Note 5. Art. 103 of the U.N. 
Charter provides that if there is a conflict between member obligations 
under the Charter and their obligations under another international 
agreement, the Charter shall prevail.
    \58\ See Rest. 3d, Sec. 102, Comment k and Reporters' Note 6.
    \59\ See Rest. 3d, Sec. 702(a)-(f), Comment n and Reporters' Note 
6.
---------------------------------------------------------------------------
    When a treaty at its inception is void because it conflicts 
with a peremptory norm (Article 53), the parties are expected 
to comply with the norm (Article 71). If a treaty becomes void 
because a new overriding norm has emerged (Article 62), the 
parties are released from any further obligation to 
perform.\60\
---------------------------------------------------------------------------
    \60\ Vienna Convention, Art. 71, Comment a.
---------------------------------------------------------------------------
    Because uncertainty may exist as to whether a particular 
norm constitutes a rule of jus cogens, the issue of who decides 
such claims when nations invoke Article 53 in an attempt to 
invalidate agreements becomes of paramount importance. Thus, 
the U.S. Government, in its comments on an earlier Draft 
Article 37 of the International Law Commission, similar to 
Article 53, relating to the emergence of new norms, noted that 
such an article ``could not be accepted unless agreement is 
reached as to who is to define a new peremptory norm and to 
determine how it is to be established.'' \61\ The text of the 
article was amended by the conference in such a way as to give 
the United States, in the view of State Department officials, a 
veto over creation of a new peremptory norm. The final text 
defined such a norm as one ``accepted and recognized by the 
international community of States as a whole.''
---------------------------------------------------------------------------
    \61\ See Sir Humphrey Waldock, Special Rapporteur, Fifth Report on 
the Law of Treaties, U.N. Doc. A/CN.4/183 and Add.1-4, reprinted in 
[1966] 2 Y.B. Int'l L. Comm'n 1, 21, U.N. Doc. A/CN.4/SER.A/1966/Add.1.
---------------------------------------------------------------------------
     In addition, under another article, any party to a dispute 
arising under the jus cogens article may invoke the 
jurisdiction of the International Court of Justice unless the 
parties agree to submit to arbitration.\62\ This International 
Court dispute settlement provision, it is argued, protects the 
United States against arbitrary jus cogens claims which other 
states might attempt to use as a basis for invalidating 
treaties with the United States. The Senate on occasion has 
expressed concern about treaty provisions requiring submission 
of disputes to arbitration or the International Court, but on 
numerous occasions has given unqualified approval to such 
treaties.\63\
---------------------------------------------------------------------------
    \62\ Vienna Convention, Art. 66. See also comments of Secretary of 
State William P. Rogers, S. Exec. Doc. L, supra note 3, at 7.
    \63\ For further discussion of dispute settlement procedures, see 
Chapter VIII below. The accession of the Tunisian Government to the 
Vienna Convention on the Law of Treaties requires the consent of all 
parties in jus cogens disputes prior to Tunisian submission of such 
disputes to the International Court of Justice for a decision. See 
Multilateral Treaties Deposited with the U.N. Secretary General. Status 
of 31 December 1981, U.N. Doc. ST/LEG/SER.E/a, at 622. This type of 
declaration is made with considerable frequency in connection with 
other multilateral conventions containing International Court of 
Justice dispute settlement clauses.
---------------------------------------------------------------------------

      invalidation by violation of domestic law governing treaties

     In the world community, constitutional limitations 
affecting the exercise of the treatymaking power differ from 
nation to nation.\64\ International law generally provides that 
a state may not invalidate a treaty because of claims that its 
consent to be bound has been expressed in violation of domestic 
law governing its competence to conclude a treaty. Article 
46(1) of the Vienna Convention, permits a state to invalidate a 
treaty if a violation of domestic law was ``manifest and 
concerned a rule of its internal law of fundamental 
importance'' [emphasis added]. Article 46(2) further provides 
that a violation is manifest ``if it would be objectively 
evident to any State conducting itself in the matter in 
accordance with normal practice and in good faith.''
---------------------------------------------------------------------------
    \64\ For example, the British system has been described in the 
following way: ``It is a truism that in the United Kingdom it is the 
Crown alone, that is to say the executive and without reference to 
Parliament, which has the exclusive responsibility for the negotiation, 
conclusion, and termination of treaties. In other words, treaty making 
forms part of what we call the royal prerogative. If the implementation 
of a treaty requires a change in domestic law or the conferment of new 
powers upon the executive, the government of the day will of course 
have to secure the passage through Parliament of the necessary enabling 
legislation. This will normally be done during the period between 
signature and ratification of the treaty, since otherwise there would 
be the risk that the United Kingdom's domestic law would not permit 
full effect to be given to the treaty as and when it entered into 
force.'' Sir Ian Sinclair (Legal Adviser, Foreign and Commonwealth 
Office, United Kingdom, 1976-1984), Vienna Convention on the Law of 
Treaties: The Consequences of Participation and Nonparticipation, 
Proceedings of the American Society of International Law at its 78th 
Annual Meeting 272 (1984). For a comparison of practices of various 
nations, see Interparliamentary Union, Parliaments and the Treatymaking 
Power, Const. & Parl. Info., 1st Series, no. 145, 1st quarter (1986).
---------------------------------------------------------------------------
     These provisions have been of interest to the U.S. Senate 
primarily because of the question whether they could prevent 
the United States from being internationally bound by an 
instrument which the President signed as an executive 
agreement, but which arguably should have been sent for Senate 
advice and consent.\65\ In the words of one constitutional 
authority:
---------------------------------------------------------------------------
    \65\ See discussion under section, Senate Action on the Convention, 
earlier in this chapter, which includes the texts of Senate 
interpretations and understandings to the Vienna Convention proposed in 
1972 and 1973.
---------------------------------------------------------------------------
        A(n) * * * issue is whether under international law the 
        United States could ever claim it was not bound by an 
        agreement because it was made without Senate consent. 
        Whether a state can escape obligation on the ground 
        that those who incurred it in her behalf acted ultra 
        vires under the national constitution is not wholly 
        agreed. * * * Art. 46(1) of the Vienna Convention on 
        the Law of Treaties * * * provides that a state cannot 
        invoke failure to comply with its internal law as a 
        defense ``unless that violation was manifest and 
        concerned a rule of its internal law of fundamental 
        importance.'' Senate consent has been cited as an 
        example of a fundamental requirement. * * * But the 
        power of the President to make many agreements without 
        the Senate casts some doubt on the ``fundamental 
        importance'' of Senate consent; in any event, failure 
        to obtain such consent cannot be a ``manifest'' 
        violation of the Constitution since no one can say with 
        certainty when it is required. [Citations omitted] \66\
---------------------------------------------------------------------------
    \66\ Louis Henkin, Foreign Affairs and the United States 
Constitution, note 174 at 499 (2d ed. 1996).

     The potential ramifications of this problem were not 
addressed by Secretary of State William P. Rogers, when in his 
letter submitting the Vienna Convention to the President [for 
transmittal to the Senate], he referred to Article 46 and the 
effect of a limitation of domestic law upon a state's 
competence to conclude treaties. The Secretary noted generally 
that the U.S. delegation supported Article 46 on the basis 
that:
        * * * it deals solely with the conditions under which a 
        state may invoke internal law on the international 
        plane to invalidate its consent to be bound and that in 
        no way impinges on internal law regarding competence to 
        conclude treaties insofar as domestic consequences are 
        concerned.\67\
---------------------------------------------------------------------------
    \67\ S. Exec. Doc. L at 5.

     This issue was, however, addressed by the Restatement 
(Third) which commented that:
        Presumably, a manifest violation might involve either 
        procedural irregularities or a contravention of 
        substantive prohibitions or requirements of domestic 
        law. As to the United States, all states may be 
        presumed to know that the President of the United 
        States cannot make a treaty without the consent of the 
        Senate. * * * The President has authority, however, to 
        make many international agreements pursuant to treaty 
        or congressional authorization * * *, or on his own 
        authority * * *, and since the circumstances in which 
        Senate consent is essential are uncertain, improper use 
        of an executive agreement in lieu of a treaty would 
        ordinarily not be a ``manifest'' violation. * * * Some 
        agreements, such as the United Nations Charter or the 
        North Atlantic Treaty, are of sufficient formality, 
        dignity, and importance that, in the unlikely event 
        that the President attempted to make such agreement on 
        his own authority, his lack of authority might be 
        regarded as ``manifest.'' \68\
---------------------------------------------------------------------------
    \68\ Rest. 3d, Sec. 311, Comment c.

     A somewhat similar position on what constitutes a 
``manifest'' violation of a nation's domestic law governing 
competence to conclude treaties was taken by the International 
Law Commission (a body of 25 legal scholars elected by the U.N. 
General Assembly) in its Commentary on its Final Draft of the 
Vienna Convention. The commission noted that differing 
viewpoints exist on the issue of whether or not an agent who is 
competent under international law to commit a state--but 
perhaps not authorized to do so under domestic law--and who 
expresses state consent to a treaty by an established 
international procedure in fact binds the state to the treaty 
under international law. In response to this issue, the 
commission noted that decisions of international tribunals, 
together with state practice, appear to support a position 
holding that failure of an agent to comply with domestic 
requirements does not affect the validity of the treaty under 
international law.\69\
---------------------------------------------------------------------------
    \69\ Such failure, however, may limit that state's power to enforce 
a treaty and may also render the agent liable to legal consequences 
under domestic law. For supporting citations, see Travaux 
Preparatoires, pp. 336-338 (1978). See also United Nations, Reports of 
the International Law Commission on the Second Part of its Seventeenth 
Session, January 3-28, 1966, and on Its Eighteenth Session, May 4-July 
19, 1966, 61 American Journal of International Law 394-400 (1967).
---------------------------------------------------------------------------
     A different position was taken in 1975 by the Office of 
the Legislative Counsel of the Senate. The office suggested 
that if a state should reasonably have known of a 
constitutional defect in an agreement with the United States, 
that is, that certain agreements are ``beyond the power of the 
President to enter into without the advice and consent of the 
Senate,'' then such an agreement would be without force and 
effect under international law. Its memorandum noted that under 
international law, as evidenced in many sources including the 
Vienna Convention:
        (1) a State may be bound, under international law, by 
        an agreement made in violation of its constitutional 
        process;
        (2) a State is not bound if (A) such violation is 
        fundamental; and (B) the other party to such agreement 
        should reasonably have known of the constitutional 
        defect;
        (3) such State is bound, however, if its subsequent 
        conduct indicates acquiescence in the validity of the 
        agreement.\70\
---------------------------------------------------------------------------
    \70\ Memorandum of September 24, 1975, from Michael J. Glennon, 
Assistant Counsel, Office of the Legislative Counsel, U.S. Senate, 
regarding a memorandum of agreement between the United States and 
Israel, dated September 1, 1975. The agreements and assurances in 
question were made by the United States in connection with the Egypt-
Israel disengagement agreement of September 4, 1975. See Early Warning 
System in Sinai: Hearings before the Senate Committee on Foreign 
Relations, 94th Cong. 79 (1975). Excerpts from the Senate Legislative 
Counsel's memo are reproduced in U.S. Department of State, Digest of 
United States Practice in International Law, 1975, 320 (1976) 
(hereafter cited as Digest, 1975). See also section, ``Senate Action on 
the Convention,'' earlier in this chapter for views on the Vienna 
Convention expressed by Mr. Glennon in 1984.

     This memorandum asserts a Senate viewpoint that other 
nations should ``reasonably know'' of constitutional defects 
such as the lack of Senate advice and consent to certain 
agreements, and that in some instances the Senate might 
maintain the agreement is invalid under international law.\71\
---------------------------------------------------------------------------
    \71\ Note that whereas Art. 46 of the Vienna Convention describes a 
``manifest'' violation in terms of ``being objectively evident to any 
state,'' the memorandum above employs the standard when states ``should 
reasonably have known'' of a constitutional defect [emphasis added]. 
Nevertheless, it is the President who voids an executive agreement, and 
not the Senate.
---------------------------------------------------------------------------
     The issues discussed above resulted from the Vienna 
Convention's lack of clarification of the circumstances which 
permit a state to invalidate a treaty (under the rare and 
exceptional circumstances when a manifest violation of a 
state's internal law regarding competence to conclude treaties 
might occur).\72\ Thus Article 46 has been an issue in the 
consideration of the convention by the Senate Foreign Relations 
Committee, discussed above.
---------------------------------------------------------------------------
    \72\ See Section A above, The Vienna Convention on the Law of 
Treaties. However, because the internal laws of states vary in their 
requirements for invalidation of a treaty, it would be difficult for 
the Vienna Convention to provide more specificity in this area. 
Furthermore, the internal laws of a country may not even been clear on 
this issue. In the United States, for example, ``[t]he Supreme Court 
has not held any executive agreement to be ultra vires the President 
and * * * has upheld several agreements of particular character, but it 
has not laid down principles or given general guidance to define the 
President's power to act alone.'' See Louis Henkin, Foreign Affairs and 
the United States Constitution, supra note 66, note at 222.
---------------------------------------------------------------------------

          E. Non-Binding Agreements and Functional Equivalents

     A non-binding international agreement is one that does not 
meet the previously stated criteria for a binding international 
agreement.\73\ Non-binding agreements do not convey an 
intention of the parties to create legally committing 
relationships under international law. Often such documents 
convey merely a present intention to perform an act or a 
commitment of a purely personal, political, or moral 
nature.\74\ The Helsinki Agreement mentioned above, for 
example,\75\ avoids words of legal commitment and states that 
it is not eligible for registration as a treaty in force under 
Article 102 of the U.N. Charter.\76\
---------------------------------------------------------------------------
    \73\ See previous discussion in Sec. C, Criteria for a Binding 
International Agreement.
    \74\ Rest. 3d, Sec. 301, Comment e and Reporters' Note 2.
    \75\ 73 Dep't St. Bull. 323 (1975).
    \76\ See Digest, 1975, supra note 70 at 325-327. See also U.S. 
Department of State, 11 Foreign Affairs Manual, ch. 700 [Circular 175], 
Sec. 740.2-5, reproduced in Appendix 4 of this volume.
---------------------------------------------------------------------------
     Non-binding agreements may take many forms, including 
unilateral commitments and declarations of intent, joint 
communiques and joint statements (including final acts of 
conferences), and informal agreements. Even when agreements are 
legally non-binding, the parties affected may to some degree 
expect adherence.
     The Department of State described the difference between a 
legally binding obligation and a political obligation in 
describing certain declarations, intended to be politically 
rather than legally binding, exchanged in connection with the 
START Treaty:
        An undertaking or commitment that is understood to be 
        legally binding carries with it both the obligation of 
        each Party to comply with the undertaking and the right 
        of each Party to enforce the obligation under 
        international law. A ``political'' undertaking is not 
        governed by international law and there are no 
        applicable rules pertaining to compliance, 
        modification, or withdrawal. Until and unless a Party 
        extricates itself from its ``political'' undertaking, 
        which it may do without legal penalty, it has given a 
        promise to honor that commitment, and the other Party 
        has every reason to be concerned about compliance with 
        such undertakings. If a Party contravenes a political 
        commitment, it will be subject to an appropriate 
        political response.\77\
---------------------------------------------------------------------------
    \77\ Treaty with the Union of Soviet Socialist Republics on the 
Reduction and Limitation of Strategic Offensive Arms (START), Treaty 
Doc. 102-20, transmitted to the Senate November 25, 1991.
---------------------------------------------------------------------------

            unilateral commitments and declarations of intent

     Unilateral commitments and related instruments such as 
unilateral declarations of intent cannot constitute 
international agreements in the strict sense because an 
agreement, by definition, requires at least two parties.\78\ 
For example, a unilateral commitment or declaration in the form 
of a promise to send money to a country to help earthquake 
victims, but without reciprocal commitments on the part of the 
other country, would be a promise of a gift and not an 
international agreement.
---------------------------------------------------------------------------
    \78\ Department of State Memo of March 12, 1976, supra note 30, at 
266.
---------------------------------------------------------------------------
     Situations do exist, however, under which unilateral 
commitments or declarations of intent may become binding 
international agreements. Such instances involve parallel 
unilateral undertakings by two or more states that are 
unilateral in form but which in content constitute bilateral or 
multilateral agreements. Such reciprocal unilateral 
declarations occur regularly in international relations.\79\
---------------------------------------------------------------------------
    \79\ Rest. 3d, Sec. 301, Reporters' Note 3, which supports the 
premise that ``reciprocal'' unilateral declarations that accept the 
compulsory jurisdiction of the International Court of Justice under 
Article 26 of the Court's Statute have been held by that court to 
constitute an international agreement among the declaring states. See 
Anglo-Iranian Oil cases (U.K. v. Iran), 1952 I.C.J. 93 (July 22).
---------------------------------------------------------------------------
     It should be noted that in one important set of cases a 
unilateral commitment was held legally binding upon the party 
making it, even though it was not made in a multilateral 
context. Such a finding was reached by the International Court 
of Justice in the Nuclear Tests cases.\80\ In these cases, the 
International Courts ruled that a series of unilateral 
declarations by France concerning its intention to refrain from 
future atmospheric nuclear testing in the South Pacific was 
legally binding upon France. The sense of the Court's holding 
was that publicity and an intent to be bound are sufficient in 
such an instance to give rise to a legal obligation. In the 
words of the Court:
---------------------------------------------------------------------------
    \80\ Nuclear Tests case (Austl. v. Fr.), 1974 I.C.J. 253, 267-268 
(Dec. 20), and Nuclear Tests case (N.Z. v. Fr., 1974 I.C.J. 457 (Dec. 
20).
---------------------------------------------------------------------------
          It is well recognized that declarations made by way 
        of unilateral acts * * * may have the effect of 
        creating legal obligations. Declarations of this kind 
        may be, and very often are, very specific. When it is 
        the intention of the State making the declaration that 
        it should become bound * * * that intention confers on 
        the declaration the character of a legal undertaking * 
        * *. An undertaking of this kind, if given publicly, 
        and with an intent to be bound, even though not made 
        within the context of international negotiations, is 
        binding * * *. Just as the very rule of pacta sunt 
        servanda in the law of treaties is based on good faith, 
        so also is the binding character of an international 
        obligation assumed by unilateral declaration. Thus, 
        States may take cognizance of unilateral declarations 
        and place confidence in them, and are entitled to 
        require that the obligations thus created be 
        respected.\81\
---------------------------------------------------------------------------
    \81\ Ibid., para. para. 43 and 46 (Aust. v. Fr.), para. para. 46 
and 49 (N.Z. v. Fr.). See also S. Rubin, The International Legal 
Effects of Unilateral Declarations, 71 Am. J. Int'l. L. 1-30 (1977).

     The International Court's decision in this matter, 
although binding only on the parties in these particular 
cases,\82\ is problematic to legal analysts because it runs 
contrary to the legal principles that have traditionally 
governed such unilateral pronouncements or statements of 
intent.\83\ Moreover, the analysts argue, among other things, 
that governments are unlikely to accept the view that their 
policy pronouncements are binding. If such pronouncements are 
subject to interpretation as legal commitments by the 
International Court, some observers point out that few states 
would submit to its jurisdiction.\84\
---------------------------------------------------------------------------
    \82\ Art. 59 of the Statute of the International Court of Justice.
    \83\ S. Rubin, The International Legal Effects of Unilateral 
Declarations, supra note 81, at 28-30.
    \84\ Ibid.
---------------------------------------------------------------------------

                 joint communiques and joint statements

     Joint statements of intent are not binding agreements 
unless they meet the requirements of legally binding 
agreements, that is, that the parties intend to be legally 
bound. As in the case with all agreements, the substance and 
not the title is dispositive. Thus, whether or not a joint 
statement is titled a ``joint statement'' or ``joint 
communique'' or ``declaration'' has no effect on whatever legal 
standing it may hold independent of its title.\85\
---------------------------------------------------------------------------
    \85\ The way an instrument is dealt with after its conclusion may 
be an indication of whether it is intended to have legal effect. For 
example, it may be published in a national treaty collection, or it may 
be registered under Art. 102 of the U.N. Charter, or it may be 
described as a treaty during submission to a national parliament.
---------------------------------------------------------------------------
     An important non-binding agreement was the communique and 
joint statement issued by the United States and the U.S.S.R. 
reaffirming their intention not to take action inconsistent 
with the interim strategic arms limitation agreement that 
expired in 1977. The Department of State and the counsel to the 
Senate Foreign Relations Committee both found that this 
communique and statement did not constitute an international 
agreement. In the words of then-committee counsel, Michael J. 
Glennon: ``It [the statement] is nonbinding, it is not governed 
by international law, no exchange of promises has been 
bargained, other such actions have not been so construed, and 
the parties do not intend for an agreement to exist--indeed, 
there are no `parties' as such.'' \86\ Another example is the 
Bonn Declaration of July 17, 1978. This declaration was issued 
after an economic summit which was held at Bonn, West Germany, 
July 16 and 17, 1978, and was subscribed to by the leaders of 
seven nations including the United States.\87\ The declaration, 
which summarized the problems discussed in the summit meeting 
and stated the commitments agreed to be necessary for their 
resolution, prompted a request from the Chairman of the Senate 
Foreign Relations Committee to the Department of State 
regarding its legal significance. The reply from the State 
Department read in part:
---------------------------------------------------------------------------
    \86\ See U.S. Department of State, Digest of United States Practice 
in International Law, 1977, 429 (1978) (hereafter cited as Digest, 
1977).
    \87\ The nations were Canada, France, West Germany, Italy, Japan, 
the United Kingdom, and the United States. See Digest, 1977, supra note 
86, at 799-800.
---------------------------------------------------------------------------
        While the Declaration issued in Bonn is an important 
        political commitment, it is not an international 
        agreement within the meaning of United States law or 
        international law since the parties did not evidence an 
        intent to depart from the established international 
        practice of concluding non-binding communiques at the 
        conclusion of a summit meeting. Accordingly, while we 
        expect that the Bonn summit participants will comply 
        with the accord, it is not a legally binding 
        commitment.\88\
---------------------------------------------------------------------------
    \88\ Ibid., at 799.
---------------------------------------------------------------------------

                           informal agreements

     In contrast to the calculated ambiguity of many non-
binding declarations and agreements, governments may enter into 
precise and definite understandings that are clearly intended 
to affect their relations with each other, but with a clear 
understanding that agreements are not legally binding. Such 
informal agreements were formerly called ``gentlemen's 
agreements.'' \89\
---------------------------------------------------------------------------
    \89\ Rest. 3d, Sec. 301, Comment e.
---------------------------------------------------------------------------
     Informal agreements may be made by heads of state or 
government, by foreign ministers, or by other authorized 
officials. In these cases, the parties generally assume a 
commitment to perform or refrain from certain acts. Although 
the commitments are regarded as non-legal, there is 
nevertheless an expectation of performance by the parties.\90\
---------------------------------------------------------------------------
    \90\ See Oscar Schachter, The Twilight Existence of Nonbinding 
International Agreements, 71 Am. J. Int'l. L., 296, 299 (1977).
---------------------------------------------------------------------------
     An example is a 1908 agreement between the U.S. and 
Japanese foreign ministers whereby the Japanese Government 
agreed to take administrative measures to limit the emigration 
of Japanese laborers to the United States. This was done with 
the understanding that the United States, in return, would not 
adopt discriminatory exclusionary legislation against Japanese 
citizens. The agreement terminated when the Congress enacted 
the 1924 immigration law that discriminated against 
Japanese.\91\ More recent examples would include voluntary 
restraints agreed to by governments in the trade field.
---------------------------------------------------------------------------
    \91\ Ibid., citing 2 Foreign Relations of the United States, 339-
393 (1924).
---------------------------------------------------------------------------
     Even though states do not accept legal responsibility for 
non-binding commitments such as informal agreements, a state 
may choose to regard a non-binding undertaking as a controlling 
one. It may do so even though the affected parties generally 
have no legal remedy or sanctions for breaches of such 
commitments. The failure to abide by an informal agreement may 
have political consequences, however, possibly including 
countermeasures.

                    status of non-binding agreements

     Although legally not enforceable, non-binding agreements 
and unilateral commitments are useful to states in meeting 
certain needs. The need for flexibility--for keeping options 
open--is common to most governments and help to make non-
binding agreements attractive to them. Non-binding agreements 
provide a recognized procedural means for a state to exercise 
this flexibility.
     Often, non-binding agreements or commitments are used by 
states to signal broad policy guidelines which may be subject 
to change. Or, they may amount to nothing more than a 
propaganda ploy enabling a state to declare support for a 
policy it has no intention of following.
     Another reason for a state entering into non-binding 
agreements may be a desire to avoid legal remedies in the event 
of non-compliance, even though it intends to comply. Non-
binding agreements are well suited to such a role because that 
may relate to a very specific matter and may involve clear 
promises of intent and goodwill with expectations of reliance 
on them by all involved parties. And, if for some reason it is 
not possible to honor such an agreement, the aggrieved party 
may well have to pursue political rather than legal remedies.
     Non-binding agreements also permit a head of state or his 
agent to make commitments with the intention of honoring them, 
but without the need of going through what may be perceived as 
a cumbersome constitutional approval or reporting process 
reserved for binding agreements.\92\ Government officials may 
go on the record as expressing their intent to honor non-
binding commitments. For example, Secretary of State Kissinger, 
while testifying before the Senate Foreign Relations Committee 
regarding U.S. undertakings in connection with the Sinai 
Disengagement Agreements of 1975, noted that some of the 
undertakings were ``not binding commitments of the United 
States * * * [but that] does not mean, of course, that the 
United States is morally or politically free to act as if they 
did not exist. On the contrary, they are important statements 
of diplomatic policy and engage the good faith of the United 
States as long as the circumstances that gave rise to them 
continue.'' \93\ Supplemental statements of this type, however, 
do not affect the non-binding character of the commitment to 
which they relate.
---------------------------------------------------------------------------
    \92\ Rest. 3d, Sec. 301, Reporters' note 2.
    \93\ See 73 Dep't St. Bull. 613 (1975).
---------------------------------------------------------------------------
     As nations use non-binding agreements for different 
reasons, it is important to examine the motive for making a 
particular agreement non-binding, the context within which it 
is made, the wording and intent of the commitment as expressed 
by the language used, and the reputation and history of the 
state or representative for honoring such statements. Only by 
evaluating such criteria can a government arrive at realistic 
expectations as to whether or not the parties will comply with 
such commitments.
     In conclusion, international agreements having the status 
of treaties clearly show an intent by the parties to be bound 
under international law. They describe specific legal 
obligations which the parties assume and deal generally with 
matters of consequence. Treaties are governed internationally 
by international law. The Vienna Convention on the Law of 
Treaties, which the United States has signed but not ratified, 
is the most widely recognized international law source on 
current treaty law practice.
     Non-binding international understandings do not show an 
intent to create legal relationships. Frequently, such 
understandings convey only an intent to perform an act or a 
commitment of a purely personal, political, or moral nature. 
They may be important, however, as they are often used and 
often evoke expectations of compliance from affected states.


             IV. INTERNATIONAL AGREEMENTS AND U.S. LAW \1\
---------------------------------------------------------------------------

    \1\ Prepared by Jeanne J. Grimmett, Legislative Attorney.
---------------------------------------------------------------------------
                              ----------                              

    The purpose of this chapter is to identify the sources of 
constitutional authority underlying the conclusion of 
international agreements and the status of such agreements in 
the domestic law of the United States. To facilitate an 
understanding of the constitutional principles that are 
relevant to this area of the law, the succeeding discussion 
treats separately international agreements that are concluded 
in the form of ``treaties'' and those that are made in non-
treaty form by ``executive agreements.'' The distinction 
between these two modes of agreement-making is, of course, 
``purely a constitutional one and has no international 
significance.'' \2\ Even for purposes of domestic law, 
differentiation between treaties and executive agreements, at 
least on the basis of the nature or importance of the subject 
matter encompassed by these instruments, seems problematic in 
view of the actual practice of the nation under the 
Constitution. On the other hand, these two modes may be 
distinguished procedurally in that treaties, unlike executive 
agreements, are concluded exclusively pursuant to the joint 
action of the President and two-thirds of the Senate. Moreover, 
the domestic legal effect of treaties and executive agreements 
as law of the land may be identical in all circumstances.
---------------------------------------------------------------------------
    \2\ Research in International Law of the Harvard Law School-Law of 
Treaties: Draft Convention with Comment. American Journal of 
International Law, v. 29, 1935, p. 697. See also Art. 2(1)(a) of the 
1970 Vienna Convention on the Law of Treaties which defines ``treaty'' 
as ``an international agreement concluded between States in written 
form and governed by international law, whether embodied in a single 
instrument or in two or more related instruments and whatever its 
particular designation'' (emphasis supplied). S. Ex. L., 92d Cong., 1st 
Sess. 1971. The Vienna Convention is also reprinted in Appendix 5 of 
this volume.
---------------------------------------------------------------------------

                              A. Treaties

                        scope of the treaty power

     In providing that 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,'' the 
treaty clause of the Constitution (Article II, Section 2, 
Clause 2) furnishes little textual guidance concerning the 
proper extent of the power so granted. Perhaps the most 
familiar judicial statement regarding the scope of this clause 
is that opined by the Supreme Court in Geofroy v. Riggs:
          * * * The treaty power, as expressed in the 
        Constitution, is in terms unlimited except by those 
        restraints which are found in that instrument against 
        the action of the government or of its departments, and 
        those arising from the nature of the government itself 
        and of the States. It would not be contended that it 
        extends so far as to authorize what the Constitution 
        forbids, or a change in the character of the government 
        or in that of one of the States, or a cession of any 
        portion of the territory of the latter, without its 
        consent * * * But with these exceptions, it is not 
        perceived that there is any limit to the questions 
        which can be adjusted touching any matter which is 
        properly the subject of negotiation with a foreign 
        country.\3\
---------------------------------------------------------------------------
    \3\ 133 U.S. 258, 267 (1890). For a discussion of the routinely 
used Senate treaty condition regarding constitutional supremacy, see 
``Condition Regarding Supremacy of the Constitution'' in Chapter V, 
Section C, infra.

    It seems clear from the Court's pronouncement in Geofroy v. 
Riggs that the treaty power is indeed a broad one, extending to 
``any matter which is properly the subject of negotiation with 
a foreign country.'' However, it is equally apparent that 
treaties, like Federal statutes, are subject to the overriding 
requirements of the Constitution. Although the Supreme Court 
has apparently never expressly held a treaty to be 
unconstitutional, the validity of the general principle has 
been repeated often and most unequivocally by the court in Reid 
v. Covert where Justice Black declared that ``[n]o agreement 
with a foreign nation can confer power on the Congress, or on 
any other branch of Government, which is free from the 
restraints of the Constitution.'' \4\
---------------------------------------------------------------------------
    \4\ 354 U.S. 1, 16 (1957). See also Doe v. Braden, 16 How. (57 
U.S.) 635, 656 (1853); The Cherokee Tobacco, 11 Wall. (78 U.S.) 616, 
620-621 (1871); Geofroy v. Riggs, 133 U.S. at 267; and United States v. 
Wong Kim Ark, 169 U.S. 649, 700 (1898).
---------------------------------------------------------------------------
    While there is little difficulty in light of the case law 
in establishing the theoretical supremacy of the Constitution 
over treaties,\5\ the identification of specific constitutional 
limitations that may affect the treaty power is attended by 
some complexity. Various limitations have been suggested over 
the years and are reviewed in the following discussion.
---------------------------------------------------------------------------
    \5\ With the exception of Justice Holmes' dictum in Missouri v. 
Holland, 252 U.S. 416 (1920), there appears to have been little legal 
basis for questioning the validity of the general principle that 
treaties are subordinate to the Constitution. In Missouri v. Holland, 
Justice Holmes stated that-- * * * Acts of Congress are the supreme law 
of the land only when made in pursuance of the Constitution, while 
treaties are declared to be so when made under the authority of the 
United States [Art. VI, cl. 2]. It is open to question whether the 
authority of the United States means more than the formal acts 
prescribed to make the convention. 252 U.S. at 433.
    Any intimations from Justice Holmes' language that treaties might 
not be subject to constitutional requirements were, however, 
subsequently laid to rest in Reid v. Covert, 354 at 16-18, where 
Justice Black, in expressly refusing to read Missouri v. Holland as 
support for such a proposition, indicated that ``[n]o agreement with a 
foreign national can confer power on the Congress, or on any other 
branch of Government, which is free from the restraints of the 
Constitution.''
---------------------------------------------------------------------------
    It was asserted early by Jefferson in his Manual of 
Parliamentary Practice that the treaty power does not extend to 
``the rights reserved to the States; for surely the President 
and Senate can not do by treaty what the whole Government 
interdicted from doing in any way.'' \6\ Notwithstanding 
Jefferson's view, it seems well-settled since Missouri v. 
Holland \7\ that the powers reserved to the States under the 
10th amendment constitute no bar to the exercise of the treaty 
power. In Missouri v. Holland the Supreme Court sustained a 
treaty and implementing legislation concerning the protection 
of migratory birds, a subject that previously had been held 
within the reserved powers of the States and beyond the 
legislative competence of Congress. According to Justice 
Holmes:
---------------------------------------------------------------------------
    \6\ Jefferson's Manual of Parliamentary Practice, sec. LII, 
reprinted in H. Doc. 105-358, 105th Cong., 2d Sess. 1999, p. 301 
(hereafter cited as Jefferson's Manual).
    \7\ 252 U.S. 416 (1920).
---------------------------------------------------------------------------
          The treaty in question does not contravene any 
        prohibitory words to be found in the Constitution. The 
        only question is whether it is forbidden by some 
        invisible radiation from the general terms of the Tenth 
        Amendment.

                                 * * *

        Here a national interest of very nearly the first 
        magnitude is involved. It can be protected only by 
        national action in concert with that of another power. 
        The subject matter is only transitorily within the 
        State and has no permanent habitat therein. But for the 
        treaty and the statute there soon might be no birds for 
        any powers to deal with. We see nothing in the 
        Constitution that compels the Government to sit by 
        while a food supply is cut off and the protectors of 
        our forests and our crops are destroyed.\8\
---------------------------------------------------------------------------
    \8\ Ibid. at 433-434 and 435.

    Although the unspecified reserved powers of the States 
under the 10th amendment seem inoperative as a limitation upon 
the treaty power, there may be rights conferred upon the States 
by other provisions of the Constitution that, at least in 
theory, could restrict treatymaking. It has been suggested that 
a treaty could not undermine the guaranty of the States to a 
``Republican Form of Government'' (Article IV, Section 4), or 
infringe the authority of a State concerning its militia 
(Article 1, Section 8, Clause 16, and Amendment 2) as in a 
treaty mandating abolition of State militias pursuant to a 
scheme of general disarmament.\9\ While the Court in Geofroy v. 
Riggs further indicated that a treaty may not cede a portion of 
the territory of a State without the latter's consent, such a 
restriction upon the treaty power is not specifically mentioned 
in the Constitution and the validity of this alleged limitation 
seems questionable.\10\
---------------------------------------------------------------------------
    \9\ American Law Institute, Restatement (Third) of the Foreign 
Relations Law of the United States Sec. 302, Reporters' Note 3 (1987) 
(hereafter cited as Rest. 3d). See also Henkin, Louis. Foreign Affairs 
and the United States Constitution. 2d ed. 1996, pp. 193-194 (hereafter 
cited as Henkin 1996). Recent Supreme Court decisions setting limits on 
congressional enactments vis a vis the states on the ground that the 
enactments fell outside the scope of Congress' Commerce Power or were 
subject to 10th amendment limitations (New York v. United States, 504 
U.S. 144 (1992), Lopez v. United States, 514 U.S. 549 (1995), Printz v. 
United States, 521 U.S. 898 (1997), Morrison v. United States, 529 U.S. 
598 (2000); note also Solid Waste Agency of Northern Cook County v. 
U.S. Army Corps of Engineers, No. 99-1178 (U.S. Jan. 9, 2001) have 
raised questions as to whether the treaty power may be similarly 
vulnerable to limitations grounded in federalism. Agreements that have 
been suggested as possibly raising such concerns are ``a disarmament 
agreement with inspection provisions that permits intrusion upon the 
statehouse, or a treaty that commands state legislatures to adopt laws 
or that coopts state officials.'' Henkin 1996, p. 194. For discussion 
of these issues, see, for example, Bradley, Curtis A. The Treaty Power 
and American Federalism. Michigan Law Review, v. 97, 1998, p. 390; 
Healy, Thomas, Note, Is Missouri v. Holland Still Good Law? Federalism 
and the Treaty Power. Columbia Law Review, v. 98, p. 1726 (1998); 
Vazquez, Carlos Manuel. Breard, Printz, and the Treaty Power. 
University of Colorado Law Review, v. 70, 1999, p. 1317; Golove, David 
M. Treaty-Making and the Nation: The Historical Foundations of the 
Nationalist Conception of the Treaty Powers. Michigan Law Review, v. 
98, 2000, p. 1075.
    \10\ See Henkin 1996, p. 193 and pp. 465-466, n. 72.
---------------------------------------------------------------------------
    A second major limitation upon treatymaking urged by 
Jefferson pertains to ``those subjects of legislation in which 
[the Constitution] gave a participation to the House [of 
Representatives].'' \11\ Concerning this limitation, Jefferson 
added that ``[t]his * * * exception is denied by some on the 
ground that it would leave very little matter for the treaty 
power to work on. The less the better, say others.'' \12\ 
Although there is judicial dicta that perhaps indirectly 
suggest such a restriction,\13\ Jefferson's assertion seems to 
have been refuted by the actual practice under the 
Constitution. Thus, instances are readily found of treaties 
containing subject matter that lies within Congress' delegated 
powers, as in treaties pertaining to foreign commerce, the 
payment of money, war, the organization of judicial tribunals, 
and rules of maritime blockage and capture.\14\ Moreover, it 
recently has been held that Congress' power to dispose of 
property belonging to the United States (Article IV, Section 3, 
Clause 2) presents no constitutional bar to disposition by 
treaty of American property interests in the Panama Canal.\15\
---------------------------------------------------------------------------
    \11\ Jefferson's Manual, p. 301.
    \12\ Ibid.
    \13\ See, for example, Geofroy v. Riggs, 133 U.S. at 267, and 
Holden v. Joy, 17 Wall. (84 U.S.) 211, 243 (1872), noting general 
limitations upon the treaty power arising from ``the nature of the 
government.''
    \14\ See Wright, Quincy. Treaties and the Constitutional Separation 
of Powers in the United States. American Journal of International Law, 
v. 12, 1918, pp. 65-85 (hereafter cited as Wright, Treaties and 
Separation of Powers).
    \15\ Edwards v. Carter, 580 F. 2d 1055 (D.C. Cir. 1978), cert. 
denied, 436 U.S. 907 (1978).
---------------------------------------------------------------------------
    While there appears to be general agreement that subject 
matter falling within the scope of Congress' delegated powers 
may be dealt with by treaty,\16\ a separate question, which is 
considered infra, concerns the extent to which a treaty 
touching such subjects can become effective as domestic law 
without the aid of an implementing statute. The distinction 
between these two issues is noted in the following commentary 
which, with reference to the argument that the treaty power is 
limited by Congress' delegated authority, states that:
---------------------------------------------------------------------------
    \16\ See Wright, Treaties and Separation of Powers, pp. 65-85; 
Henkin 1996, pp. 194-195; Rest. 3d, Sec. 303, Comment c and Reporters' 
Note 2.
---------------------------------------------------------------------------
          [I]t is not clear what the limitation means. If it is 
        meant that no international agreement could be 
        constitutionally entered into by the United States 
        within the sphere of such powers the practice from the 
        beginning has been to the contrary; if it is meant that 
        treaty provisions dealing with matters delegated to 
        Congress must, in order to become the law of the land, 
        receive the assent of Congress through implementing 
        legislation, it states not a limitation on the power of 
        making treaties as international conventions but rather 
        a necessary procedure before certain conventions are 
        cognizable by the courts in the enforcement of rights 
        under them.\17\
---------------------------------------------------------------------------
    \17\ The Constitution of the United States of America--Analysis and 
Interpretation, S. Doc. 6, 103d Cong., 1st Sess. 1996, pp. 485-486 
(hereafter cited as Constitution--Analysis and Interpretation).

    A third limitation upon the treaty power has been raised in 
connection with treaties authorizing participation by the 
United States in proceedings before certain types of 
international judicial tribunals. The basic constitutional 
issue concerning such participation seems whether the 
authorizing treaty improperly delegates the ``Judicial Power of 
the United States'' which the Constitution otherwise vests in 
``one Supreme Court, and in such inferior Courts as the 
Congress may from time to time ordain and establish'' (Article 
III, Section 1). It has been argued that where an international 
judicial tribunal adjudicates claims between nation-states, the 
type of judicial power being exercised is international, and, 
hence, there is no improper usurpation by treaty of the 
domestic ``Judicial Power of the United States'' for 
constitutional purposes.\18\ The International Court of Justice 
would be an example of this type of international tribunal.
---------------------------------------------------------------------------
    \18\ Henkin 1996, p. 267.
---------------------------------------------------------------------------
    On the other hand, a more serious constitutional objection 
might be raised against a treaty authorizing an international 
tribunal to exercise appellate jurisdiction over cases from 
U.S. courts. An arrangement of this nature was envisioned in 
The Hague Prize Court Convention of 1907 \19\ which established 
an international court with appellate jurisdiction from 
national courts in prize cases. Concerned that this procedure 
would be inconsistent with the final appellate jurisdiction of 
the Supreme Court, American negotiators proposed a 
supplementary protocol \20\ authorizing de novo actions against 
the United States before the International Prize Court in lieu 
of appeals from domestic courts.\21\
---------------------------------------------------------------------------
    \19\ International Prize Court Convention, October 18, 1907, 
reprinted in Treaties, Conventions, International Acts, Protocols, and 
Agreements Between the United States of America and Other Powers, S. 
Doc. 1063, 62d Cong., 3d Sess. 1913, p. 248 (G. Charles comp.) 
(hereafter cited as Charles, Treaties).
    \20\ Additional Protocol to the Convention Relative to the 
Establishment of an International Court of Prize, Sept. 19, 1910, 
reprinted in Charles, Treaties, p. 262.
    \21\ See Butte, The ``Protocol Additional'' to the International 
Prize Court Convention. American Journal of International Law, v. 6, 
1912, p. 799; Scott, The International Court of Prize. American Journal 
of International Law, v. 5, 1911, p. 302; and Henkin, Louis, Foreign 
Affairs and the Constitution. 1972, p. 197 (hereafter cited as Henkin 
1972), and Henkin 1996, pp. 518-519. Notwithstanding Senate consent, 
the United States did not ratify the convention.
---------------------------------------------------------------------------
    A fourth limitation which has been alleged to circumscribe 
the treaty power is that treaties must relate to ``proper 
subjects of negotiation'' with a foreign nation. Such a 
limitation is suggested by judicial dicta \22\ and may also be 
present in Jefferson's statement that ``[b]y the general power 
to make treaties, the Constitution must have intended to 
comprehend only those subjects which are usually regulated by 
treaty * * *.'' \23\ This restriction is also associated with 
remarks made by Charles Evans Hughes before the annual meeting 
of the American Society of International Law in 1929 where he 
asserted that ``[t]he power [of treaty-making], is to deal with 
foreign nations with regard to matters of international 
concern. It is not a power intended to be exercised, it may be 
assumed, with respect to matters that have no relation to 
international concerns.'' \24\ While the ``international 
concern'' limitation upon treatymaking had been generally 
accepted,\25\ the American Law Institute rejected this view in 
1987 in its Restatement (Third) of the Foreign Relations Law of 
the United States.\26\ There has been no clear test for 
determining the circumstances in which the doctrine should 
apply and it has been observed, moreover, that ``[m]atters of 
international concern are not confined to matters exclusively 
concerned with foreign relations. Usually, matters of 
international concern have both international and domestic 
effects, and the existence of the latter does not remove a 
matter from international concern.'' \27\ The limitation 
appears to have rarely been an issue in reported decisions. In 
Power Authority of New York v. Federal Power Commission,\28\ a 
Federal Circuit Court of Appeals, in order to avoid declaring 
an entire treaty void for want of international concern, 
invoked the restriction against a ``reservation'' which the 
Senate had attached to the treaty but which the court viewed as 
merely an expression of the ``Senate's desires'' and of 
``domestic policy.'' \29\
---------------------------------------------------------------------------
    \22\ In Holden v. Joy, 17 Wall. (84 U.S.) at 243, the Court stated 
that the treaty power ``should extend to all those objects which in the 
intercourse of nations had usually been regarded as the proper subjects 
of negotiation and treaty.'' See also Geofroy v. Riggs, 133 U.S. at 
267, quoted in the text accompanying note 3 supra, and Akasura v. 
Seattle, 265 U.S. 332, 341 (treaty power ``extend[s] to all proper 
subjects of negotiation between out government and other nations'').
    \23\ Jefferson's Manual, p. 301.
    \24\ American Society of International Law Proceedings, v. 23, 
1929, p. 194.
    \25\ Henkin 1972, p. 152.
    \26\ Rest. 3d, Sec. 302, Comment c and Reporters' Note 2. See also 
Henkin 1996, pp. 197-198.
    \27\ American Law Institute, Restatement 2d of the Foreign 
Relations Law of the United States (1965), Sec. 117, Comment b. In this 
regard, the current Foreign Relations Restatement observes--There is no 
principle either in international law or in U.S. constitutional law 
that some subjects are intrinsically ``domestic'' and hence 
impermissible subjects for an international agreement. As to 
international law, it has been authoritatively stated that even a 
subject that is strictly of domestic concern ``ceases to be one solely 
within the domestic jurisdiction of the State [and] enters the domain 
governed by international law,'' if states conclude an international 
agreement about it. Nationality Decrees in Tunis and Morocco (Great 
Britain v. France), P.C.I.J. ser. B, No. 4, p. 26 (1923). Under U.S. 
laws, the Supreme Court has upheld agreements on matters that, apart 
from the agreement, were strictly domestic and indeed assumed to be 
within state rather than Federal authority. For example, De Geofroy v. 
Riggs [133 U.S. 258] * * * (rights of inheritance in land); Missouri v. 
Holland [252 U.S. 416] * * * (protection of migratory birds). Early 
arguments that the United States may not adhere to international human 
rights agreements because they deal with matters of strictly domestic 
concern were later abandoned. * * *'' Rest. 3d, Sec. 302, Reporters' 
Note 2.
    \28\ 247 F. 2d 538 (D.C. Cir. 1957), jud. vac. and rem. for 
mootness sub. nom. American Public Power Assn. v. Power Authority of 
New York, 355 U.S. 64 (1957).
    \29\ The reservation at issue, which had been attached by the 
Senate to the Treaty Concerning Uses of the Waters of the Niagara 
River, Feb. 27, 1950, United States-Canada, 1 U.S.T. 694, specified 
that the United States reserved the right to develop its share of the 
Niagara River by an act of Congress and that redevelopment projects in 
such waters were prohibited until authorized by congressional 
enactment. The decision has been criticized for its failure to 
recognize the existence of genuine international concern regarding the 
Senate's reservation. See Henkin, Louis, The Treaty Makers and the Law 
Makers: The Niagara Reservation. Columbia Law Review, v. 56, 1956, p. 
1151. See also text at notes 36-38 infra. In United States v. Lue, 134 
F. 3d 79 (2d Cir. 1998), the Federal Circuit Court of Appeals rejected 
appellant's argument that the International Convention Against the 
Taking of Hostages was beyond the power of the Executive to sign under 
Article II because it regulated matters of domestic concern not 
involving relations with other nations. The court took note of the 
breadth of the treaty power, though admitting a possible constitutional 
``outer limit.'' It concluded that the convention did not in any event 
``transgress'' any such limit, as it addressed two issues of central 
international concern: the treatment of foreign nationals while they 
are on local soil and hostage taking as a vehicle for terrorism. 134 F. 
3d at 83.
---------------------------------------------------------------------------
    A fifth and widely recognized limitation upon the treaty 
power is that provided by the Bill of Rights.\30\ This 
restriction upon treatymaking seems implicit from the context 
of Justice Black's reminder in Reid v. Covert that ``[n]o 
agreement with a foreign national can confer power on the 
Congress, or on any other branch of Government, which is free 
from the restraints of the Constitution,'' and that ``[t]he 
prohibitions of the Constitution were designed to apply to all 
branches of the National government, and they cannot be 
nullified by the Executive or by the Executive and the Senate 
combined.'' \31\ The necessity for Justice Black's statement 
originated in the contention, which the court rejected, that 
Article 2(11) of the Uniform Code of Military Justice,\32\ 
which effectively denied trial by jury and other Bill of Rights 
protections to civilian dependents accompanying American armed 
forces abroad, could nevertheless be sustained as legislation 
necessary and proper to implement U.S. jurisdictional rights 
under specified bilateral agreements with foreign host 
governments.
---------------------------------------------------------------------------
    \30\ Rest. 3d Sec. 302(2), Comment b, and Reporters' Note 1; 
Constitution--Analysis and Interpretation, p. 486; Henkin 1996, pp. 185 
and 283 et seq.
    \31\ 354 U.S. 1, 16, 17 (1957).
    \32\ 64 Stat. 109 (1950).
---------------------------------------------------------------------------
    Whatever specific constitutional limitations may be deemed 
applicable to the treaty power in a given case, the courts, in 
lieu of express declarations of unconstitutionality, evidence a 
proclivity merely to refuse full effectuation of specific 
treaty provisions that might offend constitutional 
requirements. Thus, in City of New Orleans v. United 
States,\33\ a treaty provision conferring ``full sovereignty'' 
upon the United States over ceded public lands was held 
ineffective by the Supreme Court to prohibit the sale of the 
land by city authorities where recognition of Federal title 
under the treaty would have deprived just compensation to 
vested private property interests in derogation of the fifth 
amendment. An additional example is afforded by Rocca v. 
Thompson,\34\ where the Court, after noting ``there is, of 
course no Federal law of probate or the administration of 
estates,'' refused to preempt the local administration of an 
alien decedent's estate notwithstanding a treaty provision 
which permitted resident foreign consuls to ``intervene'' in 
estate liquidation proceedings of foreign nationals dying 
intestate in the United States. In a similar vein is United 
States ex rel. Martinez Angusto v. Mason,\35\ where a Federal 
Circuit Court of Appeals, in the absence of an authorizing 
statute or Presidential directive, refused to deem Navy and 
Immigration and Naturalization Service agents as ``competent 
national or local authorities'' under an applicable treaty for 
purposes of sanctioning the warrantless arrest and subsequent 
imprisonment of a deserting Spanish seaman. In Colello v. U.S. 
Securities and Exchange Commission, however, a case challenging 
a freeze of plaintiffs' assets in Switzerland, a Federal 
District Court held that the failure of the U.S.-Switzerland 
Treaty on Mutual Assistance in Criminal Matters to require U.S. 
officials to notify U.S. citizens of a governmental request for 
assistance from Switzerland and to provide a prompt post-
deprivation hearing violated their fifth amendment right to due 
process and to this extent the treaty was unconstitutional.\36\ 
It further held that the treaty's ``reasonable suspicion'' 
standard for freezing U.S. citizens' assets in Switzerland 
violated the fourth amendment, stating that ``[t]he executive 
cannot eliminate plaintiffs' fourth amendment right to be free 
of unreasonable searches by treaty.'' \37\
---------------------------------------------------------------------------
    \33\ 10 Pet. (35 U.S.) 662 (1836). For commentary concerning this 
case, see Cowles, Willard. Treaties and Constitutional Law. 1975 
reprint ed., p. 112.
    \34\ 223 U.S. 317 (1912).
    \35\ 344 F. 2d 673 (5th Cir. 1965).
    \36\ 908 F. Supp. 738, 752 (C.D. Cal. 1995).
    \37\ Ibid. at 755. The court granted the plaintiffs summary 
adjudication on both constitutional issues.
    Questions regarding fourth and fifth amendment protections for U.S. 
firms arose during Senate consideration of the Convention on the 
Prohibition of the Development, Production, Stockpiling and Use of 
Chemical Weapons. Done at Paris, January 13, 1993, entered into force 
April 29, 1997, International Legal Materials, v. 32, 1993, p. 800. The 
convention was approved by the Senate April 24, 1997. Congressional 
Record, April 24, 1997, p. S3651 (daily ed.). Fourth amendment 
protections against unreasonable search and seizure were implicated by 
treaty obligations regarding routine and challenge inspections of 
chemical facilities in party countries. Fifth amendment protections 
against governmental takings were implicated by the inspections 
themselves, since they could possibly result in property loss, 
particularly that of confidential business information. See U.S. 
Congress. Senate. Committee on the Judiciary. Constitutional 
Implications of the Chemical Weapons Convention. S. Hrg. 104-859, Sept. 
10, 1996; U.S. Congress. Senate. Committee on Foreign Relations. 
Chemical Weapons Convention. S. Hrg. 105-183, April 8-17, 1997.
    The Senate's advice and consent was made subject to numerous 
conditions, including (1) a direction to the President to withhold a 
portion of the U.S. contribution to the Organization of the Prohibition 
of Chemical Weapons created under the convention in the event certain 
disclosures of U.S. business information occurred or there were certain 
breaches of confidentiality, and (2) a requirement that the President, 
before depositing the U.S. instruments of ratification, certify to the 
Congress that in the event a firm withholds its consent to a search, 
the United States will first obtain a criminal search warrant supported 
by probable cause for challenge inspections and administrative warrant 
from a U.S. magistrate judge for routine inspections. Congressional 
Record, April 27, 1997, pp. S3655, S3657. Implementing legislation set 
forth further domestic legal requirements involving convention 
activities by, among other things, providing for civil actions against 
the United States for claims for taking of property and setting forth 
warrant requirements for routine and challenge inspections. Chemical 
Weapons Convention Implementation Act of 1998, Public Law 105-277, 
Division I, 112 Stat. 2681-858. See U.S. Congress. Senate. Committee on 
the Judiciary. Chemical Weapons Implementing Legislation S. Hrg. 105-
552, May 13, 1997; Congressional Record, October 21, 1998, pp. S12744-
S12748 (daily ed.); and Kellman, Barry. The Advent of International 
Chemical Regulation: The Chemical Weapons Convention Implementation 
Act. Journal of Legislation, v. 25, 1999, p. 117.
---------------------------------------------------------------------------
    Judicial concern for constitutional requirements is also 
evident in Power Authority of New York v. Federal Power 
Commission, supra, where, as previously noted, the court 
declined to view a Senate ``reservation'' as part of the treaty 
to which it was attached, preferring instead to view the 
reservation as merely an expression of ``the Senate's desires'' 
and of ``domestic policy.'' \38\ The Senate's reservation, 
which was appended to a bilateral treaty with Canada allocating 
the waters of the Niagara River for power development, 
specified that the United States reserved the right to 
redevelop its share of the river waters by an act of Congress 
and that redevelopment projects in such waters were prohibited 
until authorized by congressional enactment. In characterizing 
the reservation as purely domestic and hence not part of the 
treaty, the Circuit Court avoided possible holdings that the 
entire treaty was void for want of ``international concern'' 
and that the Senate was unconstitutionally ``legislating'' 
through ``reservation'' without the concurrence of the House of 
Representatives inasmuch as the reservation would have 
temporarily suspended the operation of existing law.\39\
---------------------------------------------------------------------------
    \38\ 247 F. 2d 538 (D.C. Cir. 1957), jud. vac. and rem. for 
mootness sub. nom. American Public Power Assn. v. Power Authority of 
New York, 355 U.S. 64 (1957). A pair of more recent cases involving 
international agreements the resolution of which are based on 
constitutional considerations are McMullen v. United States, 989 F. 2d 
603 (2d Cir.), cert. denied, 510 U.S. 913 (1993) (Supplemental 
Extradition Treaty with United Kingdom eliminating political offense 
exception held not to constitute bill of attainder as applied 
retroactively and not to violate separation of powers doctrine by 
allegedly altering jurisdiction of the courts), and Swearingen v. 
United States, 565 F. Supp. 1019 (D. Colo. 1983) (agreement which 
created an exemption from taxation of income of U.S. citizens, contrary 
to the provisions of the Internal Revenue Code, was in contravention of 
the exclusive constitutional authority of the House of Representatives 
to originate all bills for raising revenue).
    \39\ See text accompanying notes 28-29 supra. The Power Authority 
case notwithstanding, Senate reservations are generally deemed part of 
the treaty to which they are made and held effective as domestic law in 
the United States. Rest. 3d, Sec. 314(1), Comment b. Moreover, a 
dissenting opinion in the case indicated that the Senate, by its 
reservation ``has not sought to limit the participation of the Congress 
at large and the President in decisions regarding domestic policy. It 
is a case in which the Senate has sought to enlarge their 
participation. 247 F. 2d at 547 (dissenting opinion of Judge Bastian).
---------------------------------------------------------------------------

                       treaties as law of the land

     By virtue of the supremacy clause of the Constitution 
(Article VI, Clause 2), a treaty which is concluded compatibly 
with applicable constitutional requirements of the type 
previously discussed may have status as the ``Supreme Law of 
the Land'' along with Federal statutes and the Constitution 
itself. However, a treaty's effectiveness as domestic law of 
the United States does not result automatically upon its entry 
into force on the international level, but occurs only where 
the instrument is ``self-executing,'' that is, where it 
operates without any necessity for implementing legislation. 
The classic exposition of this principle is provided by Chief 
Justice Marshall in Foster v. Neilson:
          * * * Our constitution declares a treaty to be the 
        law of the land. It is, consequently, to be regarded in 
        courts of justice as equivalent to an act of the 
        legislature, whenever it operates of itself, without 
        the aid of any legislative provision. But when the 
        terms of the stipulation import a contract, when either 
        of the parties engages to perform a particular act, the 
        treaty addresses itself to the political, not the 
        judicial department; and the legislature must execute 
        the contract, before it can become a rule for the 
        Court.\40\
---------------------------------------------------------------------------
    \40\ 2 Pet. (27 U.S.) 253, 314 (1829). See generally Vazquez, 
Carlos Manuel. The Four Doctrines of Self-Executing Treaties. American 
Journal of International Law, v. 89, 1995, p. 695.

    Application of this general rule seems relatively simple 
where the text of a treaty expressly recognizes the necessity 
for implementing legislation or where the subject matter of the 
treaty falls within an area traditionally regarded as requiring 
congressional effectuation by statute. Concerning the latter 
situation there appears to be general agreement that in view of 
Congress' exclusive power of appropriations (Article 1, Section 
9, Clause 7) a treaty provision authorizing the payment of 
money is not self-executing.\41\ Similarly, an implementing 
statute also seems required in connection with treaties which 
specify international crimes or criminal sanctions for 
particular activities.\42\ In this connection, it has been 
noted that ``[c]riminal law to implement the foreign relations 
of the United States is wholly statutory.'' \43\ Moreover, in 
light of Congress' power under Article I, Section 8, Clause 11, 
``to declare War,'' it seems to be generally assumed that a 
treaty would not be sufficient of itself to place the United 
States in a state of war.\44\ Concerning the general rule that 
treaties which pertain to the aforementioned matters require 
congressional implementation, it has been observed that:
---------------------------------------------------------------------------
    \41\ Rest. 3d, Sec. 111, Comment i, and Henkin 1996, p. 203. The 
House of Representatives early asserted its prerogatives by reserving a 
right of independent judgment regarding monies required to be paid 
under the Jay Treaty of 1796. Jefferson's Manual, p. 297; 
Constitution--Analysis and Interpretation, p. 480. In Turner v. 
American Baptist Missionary Union, 24 F. Cas. 344 (No. 14,251) 347 
(C.C. Mich. 1852), the Circuit court stated: A treaty under the Federal 
Constitution is declared to be the supreme law of the land. This, 
unquestionably, applies to all treaties, where the treatymaking power, 
without the aid of Congress, can carry it into effect. It is not, 
however, and cannot be the supreme law of the land, where the 
concurrence of Congress is necessary to give it effect. Until this 
power is exercised, as where the appropriation of money is required, 
the treaty is not perfect. It is not operative, in the sense of the 
Constitution, as money cannot be appropriated by the treatymaking 
power. This results from the limitations of our government. The action 
of no department of the government, can be regarded as law, until it 
shall have all the sanctions required by the Constitution to make it 
such. As well might be contended, that an ordinary act of Congress, 
without the signature of the President, was a law, as that a treaty 
which engages to pay a sum of money is in itself law. And in such a 
case, the representatives of the people and the States, exercise their 
own judgments in granting or withholding the money. They act upon their 
own responsibility, and not upon the responsibility of the treatymaking 
power.
    \42\ Rest. 3d, Sec. 111, Comment i; Henkin 1996, p. 203. In The 
Over the Top, 5 F. 2d 838, 845 (D. Conn. 1925), a district court stated 
that-- * * * It is not the function of treaties to enact the fiscal or 
criminal law of a nation. For this purpose no treaty is self-executing. 
Congress may be under a duty to enact that which has been agreed upon 
treaty, but duty and its performance are two separate and distinct 
things. Nor is there any doubt that the treatymaking power has its 
limitations. What these are has never been defined, perhaps never need 
be defined. Certain it is that no part of the criminal law of this 
country has ever been enacted by treaty.
    \43\ Rest. 3d, Sec. 111, Reporters' Note 6, citing U.S. 
Constitution, Article I, Section 8, ``giving Congress power `to define 
and punish Piracies and Felonies committed on the high Seas, and 
Offences against the Law of Nations.' ''
    \44\ Rest. 3d, Sec. 111, Comment i; Henkin 1996, p. 203.
---------------------------------------------------------------------------
          * * * There is no definitive authority for the rule * 
        * * that agreements on some subjects cannot be self-
        executing. That a subject is within the legislative 
        power of Congress does not preclude a treaty on the 
        same subject. * * * No particular clause of the 
        Constitution conferring power on Congress states or 
        clearly implies that the power can be exercised only by 
        Congress, not by the treaty-makers. (Contrast the 
        provision that Congress shall have the power to 
        `exercise exclusive legislation in all Cases 
        whatsoever' over the District of Columbia and other 
        places acquired for `needful buildings.' U.S. 
        Constitution, Article 1, Section 8, clause 17.) * * * 
        The power of Congress to declare war is not 
        characterized or designated in any way that would 
        distinguish it from, say, the power to regulate 
        commerce with foreign nations, yet regulation of such 
        commerce is surely a proper subject for a treaty. The 
        provision that ``No money shall be drawn from the 
        Treasury, but in Consequence of Appropriations made by 
        Law'' lends itself better to the suggestion that an 
        international agreement cannot itself ``appropriate 
        money.'' Even here, it might have been possible to 
        conclude that since treaties are declared to be ``law'' 
        (Art. VI) and are treated as equal to an act of 
        Congress for other purposes, an appropriation of funds 
        through an international agreement is an appropriation 
        ``made by law.''
          * * * The principle declared * * * is nevertheless 
        generally assumed for the cases given.\45\
---------------------------------------------------------------------------
    \45\ Rest. 3d, Sec. 111, Reporters' Note 6.

    Apart from instances where the terms of a treaty expressly 
contemplate implementing legislation or where such legislation 
is traditionally required owing to the nature of a particular 
treaty provision, whether a treaty is self-executing or not is 
a matter of interpretation, initially for the Executive and 
ultimately for the courts in the event of litigation.\46\ 
Decisional criteria for resolving this issue have been 
variously and broadly phrased. Thus, it has been stated that 
``[i]n determining whether a treaty is self-executing courts 
look to the intent of the signatory parties as manifested by 
the language of the instrument, and, if the instrument is 
uncertain, recourse must be had to the circumstances 
surrounding its execution.'' \47\ Elsewhere it is maintained 
that where the self-executing nature of an international 
agreement is unclear, ``account must be taken of any statement 
by the President in concluding the agreement or in submitting 
it to the Senate for consent * * * and of any expression by the 
Senate * * * in dealing with the agreement.'' \48\ 
Alternatively, it is urged that reference should be made to 
``the purposes of the treaty and the objectives of its 
creators, the existence of domestic procedures and institutions 
appropriate for direct implementation, the availability and 
feasibility of alternate enforcement methods, and the immediate 
and long-range social consequences of self- or non-self-
execution.'' \49\
---------------------------------------------------------------------------
    \46\ Ibid. Sec. 111, Comment h. See also Whiteman, Marjorie, Digest 
of International Law, v. 14, 1970, pp. 312-313. Henkin notes that 
sometimes ``federal legislation adopted prior to the treaty (ane even 
for other purposes) may be available to implement a treaty obligation; 
sometimes the President may have authority to carry out those 
obligations without Congressional authorization. State law may also 
serve to implement non-self-executing obligations.'' Henkin 1996, p. 
200.
    The Senate included an express declaration in the resolutions of 
ratification for various human rights treaties stating that the treaty 
is not self-executing; the declaration was later included in the U.S. 
instrument of ratification for the treaty. See Congressional Record, v. 
136, Oct. 1, 1990, p. 36198 and Nash (Leich), Marian, Contemporary 
Practice of the United States Relating to International Law. American 
Journal of International Law, v. 89, 1995, pp. 109-111 (International 
Covenant on Civil and Political Rights (ICCPR)); Congressional Record, 
v. 138, April 2, 1992, p. 8071, and Leich, Marian Nash, Contemporary 
Practice of the United States Relating to International Law. American 
Journal of International Law, v. 85, 1991, pp. 335-337 (Convention 
Against Torture and Other Cruel, Inhuman or Degrading Treatment or 
Punishment (Torture Convention)); and Congressional Record, v. 140, 
June 7, 1994, p. 8071 and Nash (Leich), Marian. Contemporary Practice 
of the United States Relating to International Law. American Journal of 
International Law, v. 88, 1994, pp. 721-728 (International Convention 
on the Elimination of All Forms of Racial Discrimination (Race 
Convention)). For the text of the U.S. instruments of ratification, see 
United Nations. Multilateral Treaties Deposited with the Secretary-
General; Status as at 31 December 1996. U.N. Doc. ST/LEG/SER.E/15, 
1997, p. 101 (Race Convention), p. 130 (ICCPR), and p. 191 (Torture 
Convention). Courts have subsequently denied private claims under these 
treaties. See, for example, Iguarta de la Rosa v. United States, 32 F. 
3d 8 (1st Cir. 1994) (ICCPR) and Barapind v. Reno, 72 F. Supp. 2d 1132 
(E.D. Cal. 1994) (Torture Convention).
    \47\ Diggs v. Richardson, 555 F. 2d 848, 851 (D.C. Cir. 1976).
    \48\ Rest. 3d, Sec. 111, Comment h.
    \49\ People of Saipan v. United States Department of Interior, 502 
F. 2d 90 (9th Cir. 1974), cert. denied, 420 U.S. 1003 (1975). In 
Frolova v. Union of Soviet Socialist Republics, 761 F. 2d 370, 373 (7th 
Cir. 1985), the court listed the following as factors that courts 
consider in discerning the intent of the treaty parties as to whether a 
treaty is self-executing: ``(1) the language and purposes of the 
agreement as a whole; (2) the circumstances surrounding its execution; 
(3) the nature of the obligations imposed by the agreement; (4) the 
availability and feasibility of alternative enforcement mechanisms; (5) 
the implications of permitting a private right of action; and (6) the 
capability of the judiciary to resolve the dispute.''
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    Where a treaty is deemed to be self-executing, any 
conflicting provisions of State law must yield. This principle, 
which is expressly enshrined in the supremacy clause of the 
Constitution, was early affirmed by the Supreme Court in Ware 
v. Hylton.\50\ According to Justice Chase:
---------------------------------------------------------------------------
    \50\ 3 Dall. (3 U.S.) 199 (1796).
---------------------------------------------------------------------------
          A treaty cannot be the supreme law of the land, that 
        is, of all the United States, if any act of a State 
        Legislature can stand in its way. If the Constitution 
        of a State * * * must give way to a treaty, and fall 
        before it; can it be questioned, whether the less 
        power, an act of the State Legislature, must not be 
        prostrate? It is the declared will of the people of the 
        United States, that every treaty made by the authority 
        of the United States, shall be superior to the 
        Constitution and laws of any individual State; and 
        their will alone is to decide. If a law of a State, 
        contrary to a treaty, is not void, but voidable only, 
        by a repeal, or nullification by a State Legislature, 
        this certain consequence follows, that the will of a 
        small part of the United States may control or defeat 
        the will of the whole.\51\
---------------------------------------------------------------------------
    \51\ Ibid. at 236-237. The principle has been reaffirmed by the 
Court in numerous cases. For additional case authority, see 
Constitution--Analysis and Interpretation, pp. 472-474.

    In the event of a conflict between a self-executing treaty 
and a Federal statute, it is well-settled that legal primacy 
will be accorded the measure which is later in time, albeit the 
courts will endeavor to harmonize the respective international 
and domestic obligations if possible. As indicated by the 
Supreme Court in Whitney v. Robertson:
          By the Constitution a treaty is placed on the same 
        footing, and made of like obligation, with an act of 
        legislation. Both are declared by that instrument to be 
        the supreme law of the land, and no superior efficacy 
        is given to either over the other. When the two relate 
        to the same subject, the courts will always endeavor to 
        construe them so as to give effect to both, if that can 
        be done without violating the language of either; but 
        if the two are inconsistent, the one last in date will 
        control the other, provided always the stipulation of 
        the treaty on the subject is self-executing. If the 
        country with which the treaty is made is dissatisfied 
        with the action of the legislative department, it may 
        present its complaint to the executive head of the 
        government and take such other measures as it may deem 
        essential for the protection of its interests. The 
        courts can afford no redress. Whether the complaining 
        nation has just cause or our country was justified in 
        its legislation, are not matters for judicial 
        cognizance.\52\
---------------------------------------------------------------------------
    \52\ 124 U.S. 581, 594 (1888). The Court has repeated the rule in 
many cases. See discussion in Constitution--Analysis and 
Interpretation, pp. 478-479, and Breard v. Greene, 523 U.S. 371, 376-77 
(1998).

    If a particular treaty is not self-executing, and, 
accordingly, requires legislative implementation to become law 
of the land, Congress may enact such legislation 
notwithstanding that the subject matter of the treaty would 
normally be beyond congressional competence. This result arises 
by virtue of the necessary and proper clause of the 
Constitution (Article I, Section 8, Clause 18) which authorizes 
Congress to make all laws necessary and proper to effectuate 
not only its expressly delegated powers, but also ``all other 
Powers vested by this Constitution in the government of the 
United States or in any Department or Officer thereof.'' 
Application of this principle seems most evident in Missouri v. 
Holland \53\ where Justice Holmes sustained both a treaty and 
an implementing act even though comparable legislation, when 
unaided by a treaty, had previously been declared invalid by 
the courts. Concerning this bootstrapping effect on the treaty 
power it has been observed that:
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    \53\ 252 U.S. 416. See also Neely v. Henkel, 180 U.S. 109, 121 
(1901), indicating that the necessary and proper clause of the 
Constitution is sufficient authority for Congress ``to enact such 
legislation as is appropriate to give efficacy to any stipulations 
which it is competent for the President by and with the advice and 
consent of the Senate to insert in a treaty with a foreign power.'' See 
generally Constitution--Analysis and Interpretation, pp. 480-482; Rest. 
3d, Sec. 111, Comment j.
---------------------------------------------------------------------------
          * * * [T]he treaty power cannot purport to amend the 
        Constitution by adding to the list of Congress' 
        enumerated powers, but having acted, the consequence 
        will often be that it has provided Congress with an 
        opportunity to enact measures which independently of a 
        treaty Congress could not pass; the only question that 
        can be raised as to such measures will be whether they 
        are necessary and proper measures for carrying of the 
        treaty in question into operation.\54\
---------------------------------------------------------------------------
    \54\ Constitution--Analysis and Interpretation, pp. 481-482.

    To the foregoing, it may be added that where a treaty 
requires implementing legislation for its effectuation, 
strictly speaking it is the statute and not the treaty which is 
the law of the land for the courts.\55\ A caveat to this 
proposition exists, however, when the treaty itself is 
incorporated as part of the statute.\56\
---------------------------------------------------------------------------
    \55\ Hopson v. Kreps, 622 F. 2d 1375 (9th Cir. 1980); H.J. Justin & 
Sons Inc. v. Brown, 519 F. Supp. 1383, 1390 (E.D. Cal. 1981).
    \56\ Henkin 1996, p. 200. Note, however, Rest. 3d, Sec. 111, 
Comment h: ``* * * strictly, it is the implementing legislation, rather 
than the agreement itself, that is given effect as law in the United 
States. That is true even when a non-self-executing agreement is 
`enacted' by, or incorporated in, implementing legislation.''
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                      B. Executive Agreements \57\
---------------------------------------------------------------------------

    \57\ Executive agreements are also discussed in Chapters II, III, 
IX, and X.
---------------------------------------------------------------------------
    Reference to the text of the Constitution suggests the 
preeminent legal status of the treaty mode of agreement-making. 
Treaties, for example, are made only by the President and two-
thirds of the Senate (Article II, Section 2, Clause 2), form 
part of the ``Supreme Law of the Land'' (Article VI, Clause 2), 
and create a basis for invoking the jurisdiction of the Federal 
courts (Article III, Section 2, Clause 1). Moreover, the States 
are absolutely prohibited from entering into any treaty 
(Article I, Section 10, Clause 1). While the Constitution thus 
expressly references the treaty mode four times, only once does 
the text of the Nation's fundamental law appear to recognize 
the existence of other types of international instruments, as 
in the prohibition against the States from concluding any 
``Agreement or Compact'' with a foreign power in the absence of 
congressional approbation (Article I Section 10, Clause 3).
    On the other hand, the actual practice of the Nation under 
the Constitution confirms a numerical primacy of agreements 
which have not been concluded in the form of treaties.\58\ Such 
agreements are typically denominated as ``executive 
agreements'' and may be further categorized as follows: (1) 
congressional-executive agreements sanctioned by the joint 
authority of the President and both Houses of Congress; (2) 
agreements concluded pursuant to existing treaties; and (3) 
Presidential or ``sole'' executive agreements made by the 
President on his independent constitutional authority.
---------------------------------------------------------------------------
    \58\ The editors of the Constitution--Analysis and Interpretation, 
pp. 494-495, observe that-Once a stepchild in the family in which 
treaties were the preferred offspring, the executive agreement has 
surpassed in number and perhaps in international influence the treaty 
formally signed, submitted for ratification to the Senate, and 
proclaimed upon ratification.
    During the first half-century of its independence, the United 
States was party to 60 treaties but to only 27 published executive 
agreements. By the beginning of World War II, there had been concluded 
approximately 800 treaties and 1,200 executive agreements * * *. In the 
period since 1939, executive agreements have comprised more than 90 
percent of the international agreements concluded.
---------------------------------------------------------------------------
    In view of the numerical superiority of executive 
agreements in actual practice as contrasted with the textual 
primacy accorded the treaty mode by the Constitution, and owing 
as well to the controversial nature of particular executive 
agreements, it is perhaps not surprising that questions have 
been raised concerning the exclusive scope vel non of the 
treaty clause and the possible existence of a substantive 
distinction between treaties and executive agreements. 
Notwithstanding substantial scholarship devoted to ascertain 
the Framers' intentions concerning these matters, the 
understanding of the Drafters remains largely obscure.\59\ By 
virtue of actual practice and judicial edification, however, it 
is now well-settled that the treaty mode is not an exclusive 
means of agreement-making for the United States and that 
executive agreements may validly co-exist with treaties under 
the Constitution. Somewhat less clear, it seems, is whether any 
subject that is dealt with by treaty may also be effected by an 
executive agreement, particularly by an agreement concluded by 
the President on his sole constitutional authority.\60\ The 
succeeding discussion further develops these points by 
presenting a review of the practice and case law associated 
with each of the three types of executive agreements.
---------------------------------------------------------------------------
    \59\ The literature is extensive, but useful reference may be made 
to: Weinfeld, Abraham. What did the Framers of the Federal Constitution 
Mean by ``Agreements or Compacts?'' University of Chicago Law Review, 
v. 3, 1936, p. 453; McClure, Wallace. International Executive 
Agreements. 1941 (hereafter cited as McClure); McDougal, Myres and 
Lans, Asher. Treaties and Congressional-Executive or Presidential 
Agreements: Interchangeable Instruments of National Policy. Yale Law 
Journal, v. 54, 1945, pp. 181 and 534 (hereafter cited as McDougal and 
Lans); Borchard, Edwin. Shall the Executive Agreement Replace the 
Treaty? Yale Law Journal, v. 53, 1944, p. 664 (hereafter cited as 
Borchard 1944); Borchard, E. Treaties and Executive Agreements--A 
Reply. Yale Law Journal, v. 54, 1945, p. 616; Wright, Q. The United 
States and International Agreements. American Journal of International 
Law, v. 38, 1944, p. 341; Mathews, Craig. The Constitutional Power of 
the President to Conclude International Agreements. Yale Law Journal, 
v. 64, 1955, p. 345; Berger, Raoul. The Presidential Monopoly of 
Foreign Relations. Michigan Law Review, v. 71, 1972, p. 1; Henkin 1996, 
Chapter VII; and Slonim, Solomon. Congressional-Executive Agreements. 
Columbia Journal of Transnational Law, v. 14, 1975, p. 434 (hereafter 
cited as Slonim).
    \60\ See, for example, the statement of the Senate Foreign 
Relations Committee in its Report on the National Commitments 
Resolution, S. Res. 85, 91st Cong., 1st Sess. 1969, wherein it is 
maintained that ``[t]he traditional distinction between the treaty as 
the appropriate means of making significant political commitments and 
the executive agreement as the appropriate instrument for routine, 
nonpolitical arrangements has substantially broken down.'' S. Rept. 
129, 91st Cong., 1st Sess. 1969, p. 26.
---------------------------------------------------------------------------

                   congressional-executive agreements

     Congressional authorization for the conclusion of 
international agreements dates from the earliest days of the 
Nation's constitutional history. Thus, in 1790 Congress 
empowered the President to pay off the Revolutionary War debt 
by borrowing money from foreign countries ``upon terms 
advantageous to the United States'' and to conclude ``such 
other contracts respecting the said debt as shall be found for 
the interest of the said States.'' \61\ Two years later the 
Postmaster General was authorized to ``make arrangements with 
the postmasters in any foreign country for the reciprocal 
receipt and delivery of letters and packets, through the post-
offices.'' \62\ The authority for the conclusion of postal 
agreements was continued in later enactments and formed the 
basis of numerous postal ``conventions'' which were never 
submitted to the Senate.\63\ Over the years, Congress has 
authorized or sanctioned additional agreements concerning a 
wide variety of subjects including, inter alia, the protection 
of intellectual property rights,\64\ acquisition of 
territory,\65\ national participation in various international 
organizations,\66\ foreign trade,\67\ foreign military 
assistance,\68\ foreign economic assistance,\69\ atomic energy 
cooperation,\70\ and international fishery rights.\71\
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    \61\ Act of Aug. 4, 1790, ch. 43, Sec. 2, 1 Stat. 139.
    \62\ Act of Feb. 20, 1792, ch. 7, Sec. 26, 1 Stat. 239.
    \63\ See Crandall, Samuel. Treaties--Their Making and Enforcement. 
1916 (2d ed.), pp. 131-132 (hereafter cited as Crandall), and McDougal 
and Lans, pp. 239-240. Miller states the ``[p]ostal conventions are 
not, and with a very few exceptions, never have been submitted the the 
Senate as treaties.'' Miller, Hunter. Treaties and Other International 
Acts of the United States of America, v. 1, 1931, p. 7 (hereafter cited 
as Miller, Treaties). Current legislative authority for postal 
agreements is contained in 39 U.S.C. Sec. 407. See also 19 Op. Atty. 
Gen. 513 (1890) in support of the constitutionality of this practice.
    \64\ See Crandall, pp. 127-131. A recent example is the World Trade 
Organization (WTO) Agreement on the Trade-Related Aspects of 
Intellectual Property Rights, approved by Congress in sec. 101 of 
Public Law 103-465, 108 Stat. 4809, 4814.
    \65\ See the Joint Resolution of March 1, 1845, 5 Stat. 797, 
consenting to the admission of Texas into the Union upon specified 
conditions, and the Joint Resolution of Dec. 29, 1845, 9 Stat. 108, 
admitting Texas into the Union). See also the Joint Resolution of July 
7, 1898, 30 Stat. 750, annexing the Hawaiian Islands as part of the 
territory of the United States.
    \66\ See, for example, the Bretton Woods Agreement Act, 59 Stat. 
512 (1945) (International Bank for Resolution and Development and the 
International Monetary Fund), and various Joint Resolutions authorizing 
U.S. membership and participation in such organizations as the 
International Labor Organization, 48 Stat. 529 (1945); United Nations 
Relief and Rehabilitation Agency, 58 Stat. 122 (1944); International 
Refugee Organization, 61 Stat. 214 (1947); Food and Agricultural 
Organization, 59 Stat. 529 (1945); United Nations Educational, 
Scientific, and Cultural Organization, 60 Stat. 712 (1946); the World 
Health Organization, 62 Stat. 441 (1948).
    \67\ See the Tariff Act of 1890, Sec. 3, 26 Stat. 612, and of 1897, 
Sec. 3, 30 Stat. 203; the Reciprocal Trade Agreements Act of 1934, 
Sec. 350(a), 48 Stat. 943; the Trade Expansion Act of 1962, 19 U.S.C. 
Sec. 1821; the Trade Act of 1974, 19 U.S.C. Sec. Sec. 2111, 2115, 
2131(b), 2435; and the Omnibus Trade and Competitiveness Act of 1988, 
19 U.S.C. Sec. 2902.
    \68\ See the Lend-Lease Act of 1941, Sec. 3, 55 Stat. 31, and the 
Arms Export Control Act of 1976, 22 U.S.C. Sec. 2751.
    \69\ See the Foreign Assistance Act of 1961, as amended, 22 U.S.C. 
Sec. 2151 et seq., authorizing the President to furnish assistance to 
foreign nations ``on such terms and conditions as he may determine'' in 
such areas as agriculture, rural development, and nutrition, 22 U.S.C. 
Sec. 2151a; population planning and health, 22 U.S.C. Sec. 2151b; 
education and human resources development, 22 U.S.C. Sec. 2151c; and 
disaster assistance, 22 U.S.C. Sec. 2153.
    \70\ See Atomic Energy Act of 1954, as amended, 42 U.S.C. 
Sec. 2153.
    \71\ See Magnuson Fishery Conservation and Management Act of 1976, 
16 U.S.C. Sec. Sec. 1821, 1822.
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    The subject matter diversity of congressional-executive 
agreements is matched by the varying means by which Congress 
has authorized the conclusion of such agreements. Thus, 
Congress has enacted statutes providing authority in advance 
for the President to negotiate with other nations on a 
particular matter. This authority may be explicit,\72\ or, in 
the case of agreements concluded in conformity with a generally 
enunciated congressional policy, implied from the terms of the 
enactment.\73\ Legislative authorization for congressional-
executive agreements may also be effected by passage of a 
statute following the negotiation of a concluded agreement. 
Again, congressional approval may be explicit,\74\ or, implied, 
as in the case of legislation appropriating funds to carry out 
participation by the United States in an international 
organization.\75\
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    \72\ See, for example, sec. 202(a) of the Magnuson Fishery 
Conservation and Management Act of 1976, 16 U.S.C. Sec. 1822(a); secs. 
101 and 405 of the Trade Act of 1974, as amended, 19 U.S.C. 
Sec. Sec. 2111 and 2435; and sec. 405(c) of the International Religious 
Freedom Act of 1998, 22 U.S.C. Sec. 6445(c).
    \73\ See the Tariff Act of 1890, Sec. 3, 26 Stat. 612, providing 
that ``with a view to secure reciprocal trade with countries producing 
[specified articles,] * * * whenever, and so often as the President 
shall be satisfied that the Government of any country producing and 
exporting [specified articles] imposes duties or other exactions upon 
the agricultural or other products of the United States, which in view 
of the free introduction of such [specified articles], into the United 
States he may deem to be reciprocally unequal and unreasonable, he 
shall have the power and it shall be his duty to suspend, by 
proclamation * * * the provisions of the act relating to the free 
introduction of such [specified articles], the production of such 
country for such time as he shall deem just.'' Pursuant to this 
authority, 10 agreements were concluded by the President. See Crandall, 
p. 122. Note also sec. 111(b) of the Uruguay Round Agreements Act, 108 
Stat. 4819 (1994), authorizing the President to proclaim duty 
modifications and reductions pursuant to specified trade agreements 
negotiated under the auspices of the World Trade Organization (WTO).
    \74\ See, for example, the Bretton Woods Agreement Act of 1945, 59 
Stat. 512; sec. 2 of H.J. Res. 1227, Sept. 30, 1972, Public Law 92-448, 
86 Stat. 746, approving and authorizing the President to accept the 
Interim Agreement on Certain Measures with Respect to the Limitation of 
Strategic Offensive Arms, United States-Soviet Union, May 26, 1972, 23 
U.S.T. 3462; and sec. 101 of the Uruguay Round Agreements Act, 19 
U.S.C. Sec. 3511, approving agreements resulting from the GATT Uruguay 
Round of Multilateral Trade Negotiations.
    \75\ See 25 Stat. 155; Act of Mar. 2, 1889, 25 Stat. 957; Act of 
Apr. 7, 1934, 48 Stat. 534, making appropriations for American 
participation in the Pan-American Union Act of May 24, 1888, and secs. 
531 and 532 of the North American Free Trade Agreement (NAFTA) 
Implementation Act, 107 Stat. 2163-2164 (1993), authorizing U.S. 
participation in the Commission on Labor Cooperation and the Commission 
on Environmental Cooperation established under supplemental agreements 
to the North American Free Trade Agreement, as well as funds for the 
U.S. contribution to the each organization's annual budget. Congress 
did not, however, expressly approve the supplemental agreements. See 
also McDougal and Lans, p. 271, Henkin 1996, at pp. 215-216.
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    In regulating the use of congressional-executive 
agreements, Congress has specified in advance the general terms 
of negotiation \76\ and conditioned the effectiveness of 
particular agreements alternatively upon the enactment of 
implementing legislation,\77\ upon the legislative adoption of 
an approving concurrent resolution within a specified time 
following transmittal of the agreement to Congress,\78\ or upon 
the failure of Congress to adopt a disapproving concurrent \79\ 
or joint \80\ resolution within designated time periods. 
Furthermore, congressional approval of some agreements has been 
accompanied by conditions.\81\ The President is presently 
required by at least one statute to select Members of Congress 
from specified committees to serve as accredited advisers to 
American delegations attending international conferences, 
meeting, and negotiating sessions relating to trade 
agreements.\82\ Other legislation has required the President to 
consult with specified committees before entering into trade 
agreements.\83\
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    \76\ See sec. 123 of the Atomic Energy Act of 1954, as amended, 42 
U.S.C. Sec. 2153(a); sec. 107 of the Trade Act of 1974, as amended, 19 
U.S.C. Sec. 2117; and sec. 201(c) of the Magnuson Fishery Conservation 
and Management Act of 1976, as amended, 16 U.S.C. Sec. 1821(c).
    \77\ See sec. 102(e) of the Trade Act of 1974, 19 U.S.C. 
Sec. 2112(e), and sec. 1103 of the Omnibus Trade and Competitiveness 
Act of 1988, 19 U.S.C. Sec. 2903.
    \78\ See Sec. 405(c) of the Trade Act of 1974, 19 U.S.C. 
Sec. 2435(c) (1988). The constitutionality of this procedure was 
undermined by a pair of 1983 Supreme Court actions which overturned on 
separation of powers grounds one and two house resolutions disapproving 
of executive branch exercises of statutorily delegated authority. INS 
v. Chadha, 462 U.S. 919 (1983) and United States Senate and United 
States House of Representatives v. Federal Trade Commission, 463 U.S. 
1216 (1983). Accordingly, Congress in 1990 amended section 405(c) to 
substitute the enactment of a joint resolution for approval by 
concurrent resolution; the former complies with constitutionally 
specified requirements for enacting law, namely bicameral action and 
Presidential presentation. 19 U.S.C. Sec. 2434(c).
    \79\ See sec. 123(d) of the Atomic Energy Act of 1954, as amended, 
42 U.S.C. Sec. 2153(d), and sec. 36 of the Arms Export Control Act of 
1976, 22 U.S.C. Sec. 2776, subjecting any Presidential ``letter of 
offer'' to sell defense articles or services for $50 million or more, 
or any major defense equipment for $14 million or more, to this 
procedure unless the President certifies that a national emergency 
exists which requires the sale in the national security interests of 
the United States. For reasons set forth in note 78, supra, Congress 
has revised these provisions of law to require lawmaking in conformity 
with constitutionally prescribed procedures.
    \80\ See sec. 203 of the Magnuson Fishery Conservation and 
Management Act of 1976, 16 U.S.C. Sec. 1823.
    \81\ Congressional approval of the United Nations Headquarters 
Agreement was accompanied by the condition that ``any supplemental 
agreement entered into pursuant to section 5 of the Agreement * * * 
shall be submitted to Congress for approval.'' 61 Stat. 756, 758 
(1947). In accepting U.S. adherence to the International Refugee 
Organization, Congress specified that its approval ``is given upon 
condition and with reservation that no agreement shall be concluded on 
behalf of the United States and no action shall be taken by any 
officer, agency or any other person * * * (1) whereby any person shall 
be admitted to or settled or resettled in the United States or any of 
its Territories or possessions without prior approval thereof by the 
Congress * * * or (2) which will have the effect of abrogating, 
suspending, modifying, adding to, or superceding any of the immigration 
laws or any other laws of the United States.'' 61 Stat. 214 (1947).
    \82\ See sec. 161 of the Trade Act of 1974, 19 U.S.C. Sec. 2211.
    \83\ Sec. 1102 of the Omnibus Trade and Competitiveness Act of 
1988, 19 U.S.C. Sec. 2902.
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    The constitutionality of congressional-executive agreements 
appears to have been first raised before the Supreme Court in 
Field v. Clark.\84\ In Field it was alleged that section 3 of 
the Tariff Act of 1890,\85\ which authorized the President to 
suspend exemptions from import duties on specified articles 
unless reciprocity could be obtained with other nations, 
unconstitutionally delegated both the legislative and 
treatymaking power. Although no specific agreement was in 
issue, a number of reciprocal trade agreements had already been 
concluded pursuant to section 3.\86\ In meeting the objection 
that the Act unlawfully delegated Congress' legislative powers, 
the Court cited numerous statutory precedents dating from the 
early days of the Nation's constitutional history. The 
existence of these precedents permitted the Court summarily to 
dispose of the additional argument--that the treaty power had 
been unlawfully delegated--with the reply that ``[w]hat has 
been said [regarding the delegation of legislative authority] 
is equally applicable to the objection that the third section 
of the Act invests the President with treaty-making power * * * 
[T]he Court is of opinion that the third section of the Act of 
October 1, 1890, is not liable to the objection that it 
transfers legislative and treaty-making power to the 
President.'' \87\
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    \84\ 143 U.S. 649 (1892). Although the issue was not squarely 
presented, the Supreme Court, in Texas v. White, 7 Wall. (74 U.S.) 700 
(1868), and in Hawaii v. Mankichi, 190 U.S. 197 (1903), seemed 
implicitly to approve the bypassing of the treaty mode in the 
acquisition of Texas and Hawaii by the United States.
    \85\ 26 Stat. 612
    \86\ Crandall lists ten commercial agreements which were concluded 
under section 3 of the Tariff Act of 1890. See Crandall, p. 122. The 
decision in Field v. Clark, 143 U.S. 649 (1892), was rendered after six 
agreements had already become effective by proclamation.
    \87\ 143 U.S. at 694.
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    Twenty years later, in B. Altman & Co. v. United 
States,\88\ the Court held that a reciprocal trade agreement 
between the United States and France,\89\ concluded pursuant to 
section 3 of the Tariff Act of 1897,\90\ was a ``treaty'' for 
purposes of section 5 of the Circuit Court of Appeals Act of 
1891 \91\ permitting direct appeals to the Supreme Court in any 
case involving the validity or construction of a ``treaty.'' 
Although the Court acknowledged that the trade agreement was 
not a treaty in the technical sense of Article II, Section 2, 
of the Constitution, it did not inquire into the 
constitutionality of the authorizing legislation, preferring 
simply to characterize the issue as one of ascertaining 
Congress' intent under the Circuit Court of Appeals Act. 
According to the Court:
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    \88\ 224 U.S. 583 (1912).
    \89\ Commercial Agreement of May 30, 1898, United States-France, 30 
Stat. 1774.
    \90\ 30 Stat. 203.
    \91\ 26 Stat. 827-828.
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          [The Circuit Court of Appeals Act] was intended to 
        cut down and limit the jurisdiction of this court and 
        many cases were made final in the Circuit Court of 
        Appeals which theretofore came to this court, but it 
        was thought best to preserve the right to a review by 
        direct appeal or writ of error from a Circuit Court in 
        certain matters of importance, and, among others, those 
        involving the construction of treaties. We think that 
        the purpose of Congress was manifestly to permit rights 
        and obligations of that character to be passed upon in 
        the Federal Court of final resort, and that matters of 
        such vital importance, arising out of opposing 
        constructions of international compacts, sometimes 
        involving the peace of nations, should be subject to 
        direct and prompt review by the highest court of the 
        Nation. While it may be true that this commercial 
        agreement, made under authority of the Tariff Act of 
        1897, Sec. 3, was not a treaty possessing the dignity 
        of one requiring ratification by the Senate of the 
        United States, it was an international compact, 
        negotiated between the representatives of two sovereign 
        nations made in the name and on behalf of the 
        contracting countries, and dealing with important 
        commercial relations between the two countries, and was 
        proclaimed by the President. If not technically a 
        treaty requiring ratification, nevertheless it was a 
        compact authorized by the Congress of the United 
        States, negotiated and proclaimed under the authority 
        of its President. We think such a compact is a treaty 
        under the Circuit Court of Appeals Act, and, where its 
        construction is directly involved, as it is here, there 
        is a right of review by direct appeal to this 
        court.\92\
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    \92\ 224 U.S. at 601.

    Evidencing a similar lack of interpretative rigidity is 
Louis Wolf & Co. v. United States \93\ wherein the U.S. Court 
of Customs and Patent Appeals held that a United States-Cuba 
Trade Agreement of 1934,\94\ which had been effected under 
section 350(a) of the Tariff Act of 1930,\95\ was a 
``commercial convention'' within the meaning of treaties 
concluded by the United States with Norway \96\ and 
Austria.\97\ The latter two treaties exempted from 
unconditional most-favored-nation treatment goods accorded 
preferential treatment by the United States under a United 
States-Cuban Commercial Convention of 1902 or any other 
``commercial convention'' which might subsequently be concluded 
between the United States and Cuba. In holding that the 1934 
United States-Cuba Trade Agreement was a ``commercial 
convention'' within the meaning of the Austrian and Norwegian 
treaties, the court declared that:
---------------------------------------------------------------------------
    \93\ 107 F. 2d 819 (C.C.P.A. 1939)
    \94\ Agreement Respecting Reciprocal Trade, United States-Cuba, 
Aug. 24, 1934, 49 Stat. 3559.
    \95\ Sec. 350(a) of the Tariff Act of 1930, 46 Stat. 708, as added 
by the Reciprocal Trade Agreements Act of 1934, 48 Stat. 943.
    \96\ Treaty of Friendship, Commerce, and Consular Rights, United 
States-Norway, June 5, 1928, 47 Stat. 2135.
    \97\ Treaty of Friendship, Commerce, and Consular Rights, United 
States-Austria, June 19, 1928, 47 Stat. 1876.
---------------------------------------------------------------------------
          * * * We think that by the use of the term 
        ``commercial convention'' such a trade agreement as the 
        Cuban Trade Agreement of 1934 was intended to be 
        included, and it is our opinion that that agreement is 
        a commercial convention although it was not ratified by 
        the Senate. It is true that the treaties with Norway 
        and Austria refer to the Cuban treaty of 1902 as a 
        ``Commercial Convention'' and that it was ratified by 
        the Senate. The treaty of 1902 refers to itself as a 
        ``convention.'' We think it well settled that the term 
        ``commercial convention'' is broad enough to include 
        commercial conventions which are ratified by the Senate 
        when negotiated by the executive department of the 
        Government, but that it also includes certain 
        commercial agreements which may be authorized by 
        Congress, if such conventions are within the powers so 
        delegated.
          On this phase of the case we think it proper to say 
        that the President, pursuant to acts of Congress, 
        frequently has entered into agreements with foreign 
        States.\98\
---------------------------------------------------------------------------
    \98\ 107 F. 2d at 826.

    While the issue concerning the constitutionality of 
congressional-executive agreements was either summarily 
resolved or substantially avoided in Field v. Clark, Altman, 
and Louis Wolf, a more detailed resolution of this question was 
evidenced by the U.S. Customs Court in Star-Kist Foods, Inc. v. 
United States.\99\ In Star-Kist, the court held that a trade 
agreement between the United States and Iceland,\100\ which was 
authorized by section 350(a) of the Tariff Act of 1930,\101\ 
was not an unconstitutional delegation of the treaty power. In 
determining that the Icelandic agreement was ``not a treaty 
requiring concurrence by the United States Senate within the 
meaning of the term, as used in the Constitution,'' the court 
relied heavily upon Field v. Clark, Altman, and Louis 
Wolf.\102\ Specifically noteworthy, however, is the concurring 
opinion of Judge Mollison which not only assessed the 
precedential significance of Field v. Clark, but also 
articulated a theoretical basis for congressional-executive 
agreements in the area of foreign trade. According to Judge 
Mollison:
---------------------------------------------------------------------------
    \99\ 169 F. Supp. 268 (Cust. Ct. 1958), aff'd, 257 F. 2d 472 
(C.C.P.A. 1959).
    \100\ Agreement Respecting Reciprocal Trade, United States-Iceland, 
Aug. 27, 1943, 57 Stat. 1075.
    \101\ Sec. 350(a) of the Tariff Act of 1930, 46 Stat. 708, as added 
by the Reciprocal Trade Agreements Act of 1934, 48 Stat. 943.
    \102\ 169 F. Supp. at 278-280.
---------------------------------------------------------------------------
          The decision in Field v. Clark * * * is supporting 
        authority for the view of Congress, when it enacted the 
        Reciprocal Trade Agreements Act of 1934 [adding section 
        350(a) to the Tariff Act of 1930], that it had the 
        authority to authorize and empower the President, under 
        prescribed standards and upon specified limitations 
        upon his discretion, to negotiate and conclude 
        reciprocal trade agreements and to make them effective 
        by proclamation. The effect of the decision in Field v. 
        Clark, coming after six of the ten reciprocal trade 
        agreements had been concluded and made effective by 
        proclamation, was an approval of such trade agreements 
        and the exercise of such Executive authority and 
        practice.
          * * * It can hardly be doubted that the Congress has 
        the authority, in regulating foreign trade and 
        commerce, to authorize the President, under prescribed 
        standards and limitations, to negotiate, conclude, and 
        make effective by proclamation reciprocal trade 
        agreements lowering customs duties in return for 
        concessions granted the United States.\103\
---------------------------------------------------------------------------
    \103\ Ibid. at 287-288

    On appeal the U.S. Court of Customs and Patent Appeals 
affirmed the holding of the U.S. Customs Court and further 
amplified the constitutional doctrine supporting congressional-
executive agreements in the area of foreign trade:
          * * * From reading the act, it is apparent that 
        Congress concluded that the promotion of foreign trade 
        required that the tariff barriers in this and other 
        countries be modified on a negotiated basis. Since the 
        President has the responsibility of conducting the 
        foreign affairs of this country generally, it gave to 
        him the added responsibility of negotiating the 
        agreements in pursuance of the spirit of the act. Such 
        a procedure is not without precedent nor judicial 
        approval [citing, inter alia, the Altman and Louis Wolf 
        cases, supra] \104\
---------------------------------------------------------------------------
    \104\ 275 F. 2d at 483. The court also relied on United States v. 
Curtis-Wright Export Corp., 299 U.S. 304 (1936); United States v. 
Belmont, 301 U.S. 324 (1937), and United States v. Pink, 315 U.S. 203 
(1942). For a discussion of these cases, see text accompanying notes 
135-144 and 151-152, infra.

    The question whether trade agreements can constitutionally 
be entered into as congressional-executive agreements rather 
than treaties has arisen in a judicial challenge to the North 
American Free Trade Agreement (NAFTA), in which it was alleged 
that the failure to use the treaty process rendered the 
agreement and its implementing legislation unconstitutional. In 
Made in the USA Foundation v. United States, a Federal District 
Court held in July 1999 that ``the President had the authority 
to negotiate and conclude NAFTA pursuant to his executive 
authority and pursuant to the authority granted to him by 
Congress in accordance with the terms of the Omnibus Trade and 
Competitiveness Act of 1988 * * * and section 151 of the Trade 
Act of 1974 * * * and as further approved by the [NAFTA] 
Implementation Act.'' \105\ The court concluded that the 
foreign commerce clause, combined with the necessary and proper 
clause and the President's Article II foreign relations power, 
was a constitutionally sufficient basis for the NAFTA:
---------------------------------------------------------------------------
    \105\ Made in the USA Foundation et al. v. United States, 56 F. 
Supp. 2d 1226 (N.D. Ala 1999). The decision has been appealed to the 
U.S. Court of Appeals for the Eleventh Circuit.
    The issue had earlier emerged during Congress' consideration in 
1994 of implementing legislation for trade agreements concluded during 
the GATT Uruguay Round of Multilateral Trade Negotiations. The question 
originally was posed because of the perceived effect of the agreements 
on states. The agreements were negotiated and submitted to Congress for 
expedited approval and implementation pursuant to the statutes cited in 
the Made in the USA Foundation case, that is, the Omnibus Trade and 
Competitiveness Act of 1988, Public Law 100-418, as amended, and 
section 151 of the Trade Act of 1974, which together required an 
``implementing bill'' containing a provision expressly approving the 
agreements as well as any statutory provisions ``necessary or 
appropriate'' to implement them. The agreements were ultimately 
approved by both Houses of Congress in the Uruguay Round Agreements 
Act, Public Law 103-465. Legal arguments and discussion may be found in 
``Memorandum to Ambassador Michael Kantor, U.S. Trade Representative, 
from Walter Dellinger, Assistant Attorney General, Office of Legal 
Counsel, re: Treaty Ratification of the GATT Uruguay Round: Additional 
Memorandum'' (November 22, 1994) http://www.usdoj.gov/olc/
1994opinions.htm. See also U.S. Congress. Senate. Committee on 
Commerce, Science, and Transportation. S. 2467, GATT Implementing 
Legislation. S. Hrg. 103-823, October-November 1994; Henkin 1996, pp. 
218-219; and Vagts, Detlev F. International Agreements, the Senate and 
the Constitution. Columbia Journal of Transnational Law, v. 36, 1997, 
p. 143.
---------------------------------------------------------------------------
          * * * [W]hile the reason(s) for the existence and 
        adoption of the Treaty Clause and its scope are 
        debatable, the plenary scope of the Commerce Clause is 
        clear. There exists no reason to apply a limiting 
        construction upon the Foreign Commerce Clause or to 
        assume that the Clause was not meant to give Congress 
        the power to approve those agreements that are 
        `necessary and proper' in regulating foreign commerce. 
        It is impossible to definitively conclude that the 
        Framers intended the regulation of foreign commerce to 
        be subject to the rigors of the Treaty clause procedure 
        when commercial agreements with foreign nations are 
        involved. Given the [Supreme] Court's language in 
        Gibbons v. Ogden, the power of Congress to regulate 
        foreign commerce with foreign nations is so extensive 
        that it is reasonably arguable * * * that no `treaty' 
        affecting commerce with foreign nations is valid unless 
        adopted by Congress as a whole. In the absence of 
        specific limiting language in or relating to the Treaty 
        Clause, I am led to conclude that the foreign commerce 
        power of Congress is at least concurrent with the 
        Treaty Clause power when an agreement, as is the case 
        here, is dominated by provisions specifically related 
        to foreign commerce and has other provisions which are 
        reasonably `necessary and proper' for `carrying all 
        others into execution.' * * * Further, I note that the 
        President, in negotiating the Agreement in connection 
        with the fast track legislation, is acting pursuant to 
        his constitutional responsibility for conducting the 
        Nation's foreign affairs and pursuant to a grant of 
        authority from Congress.\106\
---------------------------------------------------------------------------
    \106\ Ibid. at 1319-22 (citations omitted). Gibbons v. Ogden, 22 
U.S. 1 (1824) recognized the plenary nature of Congress' power under 
the commerce clause. The court also stated that it had been persuaded 
by language in Edwards v. Carter, 580 F. 2d 1055, 1057-58 (D.C. Cir.), 
cert. denied, 436 U.S. 907 (1978), addressing concurrent power under 
the property clause (U.S. Constitution, Article IV, Section 3, Clause 
2). Edwards considered whether the clause, which authorizes Congress 
``to dispose of and make all needful Rules and Regulations respecting 
the Territory or other Property belonging to the United States,'' 
prevented the President and the Senate from transferring ownership of 
the Panama Canal pursuant to a treaty. The Edwards court stated in part 
that ``on its face, the Property Cause is intended not to restrict the 
scope of the Treaty Clause, but, rather is intended to permit Congress 
to accomplish through legislation what may concurrently be accomplished 
through other means provided in the Constitution.'' 580 F. 2d at 1058, 
as quoted in 56 F. Supp. 2d 1309.

    The Supreme Court earlier addressed the question of 
congressional-executive agreements in Weinberger v. Rossi,\107\ 
where it held that the term ``treaty,'' as used in a statute 
prohibiting employment discrimination against U.S. citizens on 
American military bases abroad unless permitted by ``treaty,'' 
embraced a base labor agreement between the United States and 
the Philippines authorizing the preferential hiring of Filipino 
nationals.\108\ The Court deemed the issue as ``solely one of 
statutory interpretation'' and noted, inter alia, the 
imprecision of Congress' use of the term ``treaty'' in various 
legislative enactments and the rule of construction favoring 
the harmonization of statutory requirements with the Nation's 
international obligations.\109\
---------------------------------------------------------------------------
    \107\ 456 U.S. 25 (1982).
    \108\ At issue in the case was the scope of section 106 of Public 
Law 92-129, 85 Stat. 355, 5 U.S.C. Sec. 7201 note, prohibiting 
employment discrimination of the type described. Earlier, in 1944, 
Congress had authorized the President, ``by such means as he finds 
appropriate,'' to acquire by negotiations with the President of the 
Philippines, military bases ``he may deem necessary for the protection 
of the Philippine Islands and of the United States.'' 22 U.S.C. 
Sec. 1392. Pursuant to this authority, the President concluded the 
Military Bases Agreement of March 14, 1947, 62 Stat. 4019, as well as 
the Base Labor Agreement of May 27, 1968, 19 U.S.T. 5892, the latter 
providing for the preferential hiring of Filipino citizens at American 
military facilities in the Philippines.
    \109\ 456 U.S. at 26, 31, and 32. The Court stated that ``[a]t the 
time Sec. 106 [of Public Law 92-129] was enacted, there were in force 
12 agreements in addition to the [Philippine base labor agreement] 
providing for preferential hiring of local national on United States 
military [bases] over seas. Since the time of the enactment of 
Sec. 106, four more such agreements have been concluded, and none of 
these were submitted to the Senate for its advice and consent * * * We 
think that some affirmative expression of congressional intent to 
abrogate the United States' international obligations is required in 
order to construe the word `treaty' in Sec. 106 as meaning only Article 
II treaties.'' Ibid. at 32.
---------------------------------------------------------------------------
    The use of congressional-executive agreements in the 
extradition area was recently affirmed in Ntakirutimana v. 
Reno, which challenged the constitutionality of the 1995 
extradition agreement between the United States and the 
International Criminal Tribunal for Rwanda.\110\ The agreement 
had been entered into as an executive agreement and implemented 
pursuant to Section 1342 of Public Law 104-106.\111\ Petitioner 
argued that a treaty was constitutionally required for an 
extradition, but the Federal Circuit Court of Appeals 
disagreed, finding that neither the text of the Constitution, 
constitutional history, nor historical practice supported such 
a requirement. Addressing the Supreme Court's ruling in 
Valentine v. United States \112\ that executive power to 
extradite must be based in a statute or a treaty, the court 
concluded that the required authorization could be found in 
Public Law 104-106, which, along with the agreement, created 
the constitutionally valid ``congressional-executive 
agreement'' used in this situation.
---------------------------------------------------------------------------
    \110\ Agreement on Surrender of Persons Between the Government of 
the United States and the International Tribunal for the Prosecution of 
Persons Responsible for Genocide and Other Serious Violations of 
International Humanitarian Law Committed in the Territory of Rwanda and 
Rwandan Citizens Responsible for Genocide and Other Such Violations 
Committee in the Territory of Neighboring States, signed January 24, 
1995, entered into force February 14, 1996, TIAS 12601.
    \111\ 184 F. 3d 419 (5th Cir. 1999).
    \112\ 299 U.S. 5 (1936).
---------------------------------------------------------------------------
    From the foregoing review of the practice and case law 
associated with congressional-executive agreements, it would 
seem that the constitutionality of this mode of agreement-
making is well established. Notwithstanding that the text of 
the Constitution confers no explicit authority for the making 
of congressional-executive agreements, such agreements have 
been authorized frequently by Congress over the years on a wide 
variety of subjects. Similarly, courts have been little 
troubled by theoretical considerations and have sustained such 
agreements largely on the basis of the actual practice of the 
political branches of the government and the cumulative weight 
of prior judicial decisions. Where the constitutionality of a 
congressional-executive agreement was directly challenged, the 
commerce clause coupled with the necessary and proper clause 
and the President's foreign affairs power was held to provide 
an adequate constitutional basis for a trade agreement that 
took this form.\113\ Moreover, it appears to be the majority 
view of legal scholars that congressional-executive agreements 
and treaties are wholly interchangeable modes of agreement-
making for the United States, although this proposition has 
been periodically questioned where the ``interchange'' is 
initiated by the President in his discretion rather than by 
prior congressional authorization.\114\
---------------------------------------------------------------------------
    \113\ For a cogent argument that the combined foreign affairs 
powers of the Congress and the President would prove sufficient to 
sustain congressional-executive agreements, see McDougal and Lans, pp. 
217 et seq.
    \114\ For expressions of the majority view, see Henkin 1996, p. 
217; Slonim, p. 449; and Murphy, John, Treaties and International 
Agreements Other Than Treaties: Constitutional Allocation of Power and 
Responsibility Among the President, the House of Representatives, and 
the Senate. University of Kansas Law Review, v. 23, 1975, p. 237. 
Arguably, the case favoring interchangeability is enhanced by the 
Altman, Louis Wolf, Rossi, Made in U.S.A. Foundation, and Ntakirutimana 
cases discussed in the text accompanying notes 88-98 and 105-112, 
supra. Compare, however, Borchard 1944, p. 671, and the several 
contentious memoranda issued by the Legal Adviser, Department of State, 
and the Office of Legislative Counsel, United States, concerning the 
President's characterizations of the four Sinai Agreements of 1975, 
involving the United States, Egypt, and Israel, as ``executive 
agreements.'' Congressional Record, v. 121, 1975, pp. 36718-36731 and 
v. 122, 1976, pp. 3374-3379. Note also the debate described in note 
105, supra.
---------------------------------------------------------------------------

                     agreements pursuant to treaties

     Agreements in this category comprise those which are 
expressly authorized by the text of an existing treaty or whose 
making may be reasonably inferred from the provisions of a 
prior treaty. Numerous agreements pursuant to treaties have 
been concluded by the Executive, particularly of an 
administrative nature, to implement in detail generally worded 
treaty obligations. Early agreements of this type consist of 
instruments accepting the results of boundary surveys mandated 
by a pre-existing treaty, accepting the accession of additional 
parties to a previously concluded treaty, or implementing 
transit rights across foreign territory as envisioned by a 
treaty of earlier date.\115\ Modern examples of agreements 
pursuant to treaties may be found in the many arrangements and 
understandings implementing the North Atlantic Treaty 
Organization (NATO) Treaty.\116\
---------------------------------------------------------------------------
    \115\ See Crandall, pp. 117-119.
    \116\ In 1953 Secretary of State Dulles estimated that some 10,000 
agreements had been concluded under the NATO Treaty. Hearings before a 
Subcommittee of the Senate Judicial Committee on S.J. Res. 1 and S.J. 
Res. 43, 83d Cong., 1st Sess. 1953, p. 877.
---------------------------------------------------------------------------
    Agreements concluded pursuant to existing treaties have 
occasionally provoked controversy when it has been alleged that 
particular agreements either required Senate approval in treaty 
form or were otherwise not within the purview of an existing 
treaty.\117\ While the President's authority to conclude such 
agreements seems well-established, the constitutional doctrine 
underlying his power is seldom detailed by legal commentators 
or by the courts. It has been suggested that sufficient 
authority may be found in the President's duty under Article 
II, Section 3, of the Constitution to ``take care that the laws 
[i.e., treaty law] be faithfully executed.'' \118\ If the 
making of such agreements is indeed sustainable on this ground, 
then the instruments technically would seem more properly 
characterized as Presidential or sole executive agreements in 
view of the reliance upon one of the Executive's independent 
powers under Article II of the Constitution.
---------------------------------------------------------------------------
    \117\ Taft, William H. Our Chief Magistrate and His Powers. 1925, 
pp. 111-112 (modus vivendi of 1904 under the Hay-Varilla Treaty with 
Panama ``attacked vigorously in the Senate as a usurpation of the 
treaty-making power''); Constitution--Analysis and Interpretation, p. 
498 (Senate approval in 1905 of bilateral arbitral treaty with Great 
Britain, when made contingent upon President's subsequent submittal of 
arbitral compromis for Senate approval, deemed a rejection of the 
treaties by President Roosevelt); and Executive Agreements with 
Portugal and Bahrain: Hearings before the Senate Foreign Relations 
Committee on S. 214, 92d Cong., 2d Sess. 11 (1972) (Executive reliance 
upon Article III of NATO Treaty deemed ``farfetched'' as supporting 
authority for 1971 agreement with Portugal under which the United 
States agreed to provide some $435 million in credits and assistance to 
Portugal in exchange for the right to station American forces at Lajes 
Airbase in the Azores).
    \118\ Henkin, pp. 219-220.
---------------------------------------------------------------------------
    On the other hand, an alternate legal basis is suggested by 
Wilson v. Girard,\119\ where the Supreme Court seemed to find 
sufficient authorization in the Senate's consent to the 
underlying treaty. The Court's decision was predicated on the 
following factual chronology. Pursuant to a 1951 bilateral 
security treaty,\120\ Japan and the United States signed an 
administrative agreement \121\ which became effective on the 
same date as the security treaty and which was considered by 
the Senate before consenting to the treaty. The administrative 
agreement provided that once a NATO Status of Forces Agreement 
concerning criminal jurisdiction came into effect, the United 
States and Japan would conclude an agreement with provisions 
corresponding to those of the NATO Arrangements. Accordingly, 
subsequent to the entry into force of the NATO Agreement,\122\ 
the United States and Japan effected a protocol agreement \123\ 
containing provisions at issue in the case at bar. In 
sustaining both the administrative agreement and the protocol 
agreement, the Court stated that:
---------------------------------------------------------------------------
    \119\ 354 U.S. 524 (1957).
    \120\ Security Treaty Between the United States and Japan, Sept. 8, 
1951, 3 U.S.T. 3329, TIAS 2491.
    \121\ Administrative Agreement under the United States-Japan 
Security Treaty, Feb. 28, 1952, 3 U.S.T. 3341, TIAS 2492.
    \122\ Agreement Between the Parties to the North Atlantic Treaty 
Regarding the Status of Their Forces, June 19, 1951, 4 U.S.T. 1792, 
TIAS 2846.
    \123\ Protocol Amending the Administrative Agreement under the 
United States-Japan Security Treaty, Sept. 29, 1953, 4 U.S.T. 1846, 
TIAS 2848.
---------------------------------------------------------------------------
          In the light of the Senate's ratification of the 
        Security Treaty after consideration of the 
        Administrative Agreement, which had already been 
        signed, and its subsequent ratification of the NATO 
        Agreement, with knowledge of the commitment to Japan 
        under Administrative Agreement, we are satisfied that 
        the approval of Article III of the Security Treaty 
        authorized the making of the Administrative Agreement 
        and the subsequent Protocol embodying the NATO 
        Agreement provisions governing jurisdiction to try 
        criminal offenses.\124\
---------------------------------------------------------------------------
    \124\ 354 U.S. at 528-29.
---------------------------------------------------------------------------

                presidential or sole executive agreements

    Agreements concluded exclusively pursuant to the 
President's independent authority under Article II of the 
Constitution may be denominated Presidential or sole executive 
agreements. Unlike congressional-executive agreements or 
agreements pursuant to treaties, Presidential agreements lack 
an underlying legal basis in the form of a statute or treaty.
    Numerous Presidential agreements have been concluded over 
the years on the basis of the President's independent 
constitutional authority. Agreements of this type deal with a 
variety of subjects and reflect varying degrees of formality. 
Many Presidential agreements, of course, pertain to relatively 
minor matters and are the subject of little concern. Other 
agreements, however, have provoked substantial interbranch 
controversy, notably between the Executive and the Senate.
    Some idea of both the modern scope and contentious nature 
of Presidential agreements may be gained by noting that such 
agreements were responsible for the open door policy toward 
China at the beginning of the 20th century,\125\ the effective 
acknowledgment of Japan's political hegemony in the Far East 
pursuant to the Taft-Katsura Agreement of 1905 and the Lansing-
Ishii Agreement of 1917,\126\ American recognition of the 
Soviet Union in the Litvinov Agreement of 1933,\127\ the 
Destroyers-for-Bases Exchange with Great Britain prior to 
American entry into World War II,\128\ the Yalta Agreement of 
1945, a secret portion of which made far-reaching concessions 
to the Soviet Union to gain Russia's entry into the war against 
Japan,\129\ the 1973 Vietnam Peace Agreement,\130\ and, more 
recently, the Iranian Hostage Agreement of 1981.\131\
---------------------------------------------------------------------------
    \125\ The open door policy in China as initiated during the 
administration of President McKinley in the form of notes from 
Secretary of State John Hay to the Governments of France, Germany, 
Great Britain, Italy, Japan, and Russia. The text of the Hay notes may 
be found in Malloy, William. Treaties, Conventions, International Acts, 
Protocols, and Agreements Between the United States of America and 
Other Powers, v. 1, 1910, pp. 244-260 (hereafter cited as Malloy). 
Concerning the significance of these agreements, see McClure, p. 98, 
and Bemis, Samuel Flagg. A Diplomatic History of the United States. 
1965, pp. 486 and 504 (hereafter cited as Bemis).
    \126\ The Taft-Katsura Agreement of 1905 may be found in Dennett, 
Tyler. Roosevelt and the Russo-Japanese War. 1925, pp. 112-114. The 
Lansing-Ishii Agreement of 1917 may be found in Malloy, v. 3, pp. 2720-
2722. Concerning the latter agreement, see Bemis, pp. 690-693.
    \127\ The correspondence establishing the agreement may be found in 
U.S. Department of State, Establishment of Diplomatic Relations with 
the Union of Soviet Socialist Republics, Eastern European Series No. 1 
(1933) [No. 528]. Concerning President Roosevelt's failure to give the 
Senate formal notification of the agreement, see the remarks of Senator 
Vandenberg in Congressional Record, January 11, 1934, pp. 460-461.
    \128\ See the Agreement Respecting Naval and Air Bases (Hull-
Lothian Agreement), United States-Great Britain, Sept. 2, 1940, 54 
Stat. 2405, and the Opinion of Attorney General Robert Jackson 
supporting the constitutionality of the arrangement, 39 Op. Atty. Gen. 
484 (1940). See also Wright, Q. The Transfer of Destroyers to Great 
Britain. American Journal of International Law, v. 34, 1940, p. 680; 
Borchard, E. The Attorney General's Opinion on the Exchange of 
Destroyers for Naval Bases. Id., p. 690; and Bemis, p. 858.
    \129\ For the text of the Yalta Agreement, see 59 Stat. 1823. Seven 
years after the Yalta Conference, the agreement was still being 
denounced in the Senate as ``shameful,'' ``infamous,'' and a usurpation 
of power by the President. Congressional Record, February 7, 1952, p. 
900 (remarks of Senator Ives). See also Bemis, p. 904. Although there 
were statements made by President Roosevelt and Secretary of State 
James Byrnes which seemed to imply that Senate consent to the agreement 
would be necessary, the treaty mode was not utilized. In this 
connection, see Pan, Legal Aspects of the Yalta Agreement. American 
Journal of International Law, v. 46, 1952, p. 40, and Briggs, The 
Leaders' Agreement at Yalta. American Journal of International Law, v. 
40, 1946, p. 380.
    \130\ See the Agreement on Ending the War and Restoring Peace in 
Vietnam, January 27, 1973, 24 U.S.T. 1, TIAS 7542, and the supporting 
case offered by the State Department in Rovine, Arthur. Digest of 
United States Practice in International Law 1973. 1974, p. 188.
    \131\ See the Declarations of the Government of the Democratic and 
Popular Republic of Algeria Concerning Commitments and Settlement of 
Claims by the United States and Iran with Respect to Resolution of the 
Crisis Arising Out of the Detention of 52 United States Nationals in 
Iran, with Undertakings and Escrow Agreement, Jan. 19, 1981, TIAS ____, 
Department of State Bulletin, v. 81, February 1981, p. 1.
---------------------------------------------------------------------------
    As previously indicated, legal authority supporting the 
conclusion of Presidential agreements may be found in the 
various foreign affairs powers of the President under Article 
II of the Constitution. In a given instance, a specific 
agreement may be supportable on the basis of one or more of 
these independent executive powers.
    One possible basis for sole executive agreements seem to 
lie in the President's general ``executive power'' under 
Article II, Section 1, of the Constitution. Early judicial 
recognition of this power in the context of Presidential 
agreements, and perhaps the earliest judicial enforcement of 
this mode of agreement-making as well, was accorded by the 
Supreme Court of the Territory of Washington in Watts v. United 
States.\132\ The agreement at issue was concluded between the 
United States and Great Britain in 1859 and provided for the 
joint occupation of San Juan Island pending a final adjustment 
of the international boundary by the parties.\133\ The court 
stated that ``[t]he power to make and enforce such a temporary 
convention respecting its own territory is a necessary incident 
to every national government, and adheres where the executive 
power is vested.'' \134\
---------------------------------------------------------------------------
    \132\ 1 Wash. Terr. 288 (1870).
    \133\ Joint Occupation of San Juan Island, Exchanges of Notes of 
Oct. 25 and 29 and Nov. 2, 3, 5, 7, and 9, 1859, and Mar. 20 and 23, 
1860, reprinted in Bevans, Charles. Treaties and Other International 
Agreements of the United States of America 1776-1949, v. 12, 1974, p. 
123 (hereafter cited as Bevans, Treaties).
    \134\ 1 Wash. Terr. at 294. As the American correspondence 
establishing the agreement for the joint occupation of the island was 
conducted by military officials, the agreement may owe much for its 
authority to the Commander in Chief Power of the Executive (Article II 
Section 2 Clause 1). The Watts case is further discussed in the text 
accompanying note 160 infra.
---------------------------------------------------------------------------
    The President's executive power was later acknowledged in 
broad terms in United States v. Curtiss-Wright Export 
Corporation \135\ where the U.S. Supreme Court referred to the 
``very delicate, plenary, and exclusive power of the President 
as the sole organ of the federal government in the field of 
international relations.'' \136\ Although no agreement was at 
issue in Curtiss-Wright, the quoted language was subsequently 
applied by the Court in United States v. Belmont \137\ to 
validate the Litvinov Agreement of 1993, supra, wherein the 
parties settled mutually outstanding claims incident to formal 
American recognition of the Soviet Union. Concerning this 
agreement, the Court declared that:
---------------------------------------------------------------------------
    \135\ 299 U.S. 304 (1936).
    \136\ Ibid. at 320.
    \137\ 301 U.S. 324 (1937).
---------------------------------------------------------------------------
          * * * [I]n respect of what was done here, the 
        Executive had authority to speak as the sole organ of 
        the government. The assignment and the agreements in 
        connection therewith did not as in the case of 
        treaties, as that term is used in the treaty-making 
        clause of the Constitution (Art. II, Sec. 2), require 
        the advice and consent of the Senate.\138\
---------------------------------------------------------------------------
    \138\ Ibid. at 330.

    Similarly, in United States v. Pink,\139\ the Court again 
approved the Litvinov Agreement on the ground that ``[p]ower to 
remove such obstacles to full recognition as settlement of 
claims * * * certainly is a modest implied power of the 
President who is the `sole organ of the federal government in 
the field of international relations.' '' \140\ More recently, 
in Dames & Moore v. Regan,\141\ the Court relied upon, inter 
alia, the Pink case to sustain President Carter's suspension of 
claims pending in American courts against Iran as required by 
the Hostage Release Agreement of 1981, supra, and, more 
directly, by Executive order.\142\ In light of Pink, the Court 
indicated that ``prior cases * * * have recognized that the 
President does have some measure of power to enter into 
executive agreements without obtaining the advice and consent 
of the Senate.'' \143\ Moreover, the Court's decision was 
heavily influenced by a finding the general tenor of existing 
statutes reflected Congress' acceptance of a broad scope for 
independent executive action in the area of international 
claims settlement agreements.\144\
---------------------------------------------------------------------------
    \139\ 315 U.S. 203 (1942).
    \140\ Ibid. at 229, citing Curtiss-Wright, 299 U.S. at 320.
    \141\ 453 U.S. 654 (1981).
    \142\ Executive Order No. 12294, 46 Fed. Reg. 14111 (1981).
    \143\ 453 U.S. at 682.
    \144\ The Court found that related statutes, though not authorizing 
the President's action, might be viewed as inviting independent 
Presidential measures in a situation such as the one at issue ``at 
least * * * where there is no contrary indication of legislative intent 
and when, as here, there is a history of congressional acquiescence of 
the sort engaged in by the President,'' namely, claims settlement by 
executive agreement. Ibid. at 677-682. In Barquero v. United States, 18 
F. 3d 1311 (5th Cir. 1994), Dames & Moore criteria were used by a 
Federal Circuit Court of Appeals to find an alternative constitutional 
basis for the President's entry into tax information exchange 
agreements with countries that were not ``beneficiary countries'' under 
the Caribbean Basin Economic Recovery Act. The court primarily held, 
however, that the agreements were authorized under the 1986 Tax Reform 
Act.
---------------------------------------------------------------------------
    A second Article II power potentially available to the 
President for purposes for concluding sole executive agreements 
appears to lie in Article II, Section 2, Clause 1, of the 
Constitution which provides that the President shall be 
``Commander-in-Chief of the Army and Navy.'' Cautious 
acceptance of the President's power to conclude agreements 
pursuant to this power is reflected in dictum of the Supreme 
Court in Tucker v. Alexandroff \145\ where the Court, after 
noting previous instances in which the Executive unilaterally 
had granted permission for foreign troops to enter the United 
States, declared that ``[w]hile no act of Congress authorized 
the Executive Department to permit the introduction of foreign 
troops, the power to give such permission without legislative 
assent was probably assumed to exist from the authority of the 
President as commander in chief of the military and naval 
forces of the United States.'' \146\
---------------------------------------------------------------------------
    \145\ 183 U.S. 424 (1902).
    \146\ Ibid. at 435. Four dissenters felt that such exceptions from 
a nation's territorial jurisdiction must rest on either a treaty or a 
statute, but noted that it was not necessary, in this case, to consider 
the full extent of the President's powers in this regard. Ibid. at 456 
and 459. Wright states, however, that ``in spite of this dissent the 
power has been exercised by the President on many occasions. * * *'' 
Wright, Q. The Control of American Foreign Relations. 1922, p. 242 
(hereafter cited as Wright, Control of Foreign Relations). See also 
Moore, John Bassett, A Digest of International Law, v. II, 1906, p. 
389.
---------------------------------------------------------------------------
    The treaty clause of the Constitution (Article II, Section 
2, Clause 2), in empowering the President to make treaties with 
the consent of the Senate, may itself be viewed as supporting 
authority for some types of sole executive agreements. The 
President's power under this clause, together with his 
constitutional role as sole international negotiator for the 
United States \147\ suggest the existence of ancillary 
authority to make agreements necessary for the conclusion of 
treaties. Intermediate stages of negotiations or temporary 
measures pending conclusion of a treaty may, for example, be 
reflected in protocols or modus vivendi.\148\ Although there 
appear to be no cases explicitly recognizing the treaty clause 
as authority for sole executive agreements, the Court's opinion 
in Belmont seems suggestive in acknowledging that there are 
many international compacts not always requiring Senate consent 
``of which a protocol [and] a modus vivendi are 
illustrations.'' \149\
---------------------------------------------------------------------------
    \147\ The Supreme Court indicated in the Curtiss-Wright case that 
the ``[President] alone negotiates. Into the field of negotiations the 
Senate cannot intrude; and Congress itself is powerless to invade 
it.'': 299 U.S. at 319.
    \148\ Constitution--Analysis and Interpretation, p. 500.
    \149\ 301 U.S. at 330-331.
---------------------------------------------------------------------------
    A fourth power of the President under Article II which is 
relevant to the conclusion of sole executive agreements lies in 
his authority to ``receive Ambassadors and other public 
Ministers'' (Article II, Section 3). To the extent that the 
receive clause is viewed as supporting the President's 
authority to ``recognize'' foreign governments,\150\ it is 
arguable that sole executive agreements may be concluded 
incident to such recognition. Although the Belmont and Pink 
cases appear to sustain the Litvinov Agreement principally on 
the basis of the President's general foreign affairs powers as 
Chief Executive or ``sole organ'' of the government in the 
field of international relations, the Court also seemed to 
emphasize that the agreement accorded American ``recognition'' 
to the Soviet Union. Thus, in Belmont the Court stated that:
---------------------------------------------------------------------------
    \150\ See Goldwater v. Carter, 617 F. 2d 697, 707-708 (D.C. Cir. 
1979), jud. vac. and rem. with directions to dismiss complaint, 444 
U.S. 996 (1979). Professor Henkin observes that ``[r]ecognition is 
indisputably the President's sole responsibility, and for many it is an 
`enumerated' power implied in the President's express authority to 
appoint and receive ambassadors.'' Henkin 1996, p. 220. See also 
Wright, Control of Foreign Relations, p. 133; Mathews, pp. 365-366; and 
McDougal and Lans, pp. 247-248.
---------------------------------------------------------------------------
          We take judicial notice of the fact that coincident 
        with the assignment [of Soviet claims against American 
        nationals to the United States government], the 
        President recognized the Soviet Government, and normal 
        diplomatic relations were established between that 
        government and the government of the United States, 
        followed by an exchange of ambassadors * * * The 
        recognition, establishment of diplomatic relations, the 
        assignment, and agreements with respect thereto, were 
        all parts of one transaction, resulting in an 
        international compact between the two governments. That 
        the negotiations, acceptance of the assignment and 
        agreements and understandings in respect thereof were 
        within the competence of the President may not be 
        doubted * * * [I]n respect of what was done here, the 
        Executive had authority to speak as the sole organ of 
        [the] government.\151\
---------------------------------------------------------------------------
    \151\ 301 U.S. at 330.

    Similarly, in Pink the Court declared that:
          ``What government is to be regarded here as 
        representative of a foreign sovereign state is a 
        political rather than a judicial question, and is to be 
        determined by the political department of the 
        government'' * * * That authority is not limited to a 
        determination of the government to be recognized. It 
        includes the power to determine the policy which is to 
        govern the question of recognition * * * Recognition is 
        not always absolute; it is sometimes conditional * * * 
        Power to remove such obstacles to full recognition as 
        settlement of claims of our nationals * * * Unless such 
        a power exists, the power of recognition might be 
        thwarted or seriously impaired. No such obstacles can 
        be placed in the way of rehabilitation of relations 
        between this country and another nation, unless the 
        historic conception of the powers and responsibilities 
        of the president in the conduct of foreign affairs * * 
        * is to be drastically revised.\152\
---------------------------------------------------------------------------
    \152\ 315 U.S. at 229-230. See also Dole v. Carter, 444 F. Supp. 
1065 (D. Kan. 1977), motion for injunction pending appeal denied, 569 
F. 2d 1108 (10th Cir. 1977), where the district court relied on the 
President's recognition power and his general ``sole organ'' executive 
authority to validate a Presidential agreement transferring Hungarian 
coronation regalia to the Republic of Hungary. On appeal, however, the 
Court of Appeals ``decline[d] to enter into any controversy relating to 
distinctions which may be drawn between executive agreements and 
treaties'' and adjudged the issue a nonjusticiable political question.

    A fifth source of Presidential power under Article II 
possibly supporting the conclusion of sole executive agreements 
is the President's duty to ``take care that the laws be 
faithfully executed'' (Article II, Section 3). Although there 
appear to be no cases holding that the take care clause is 
specific authority for such agreements, legal commentators have 
asserted that the clause sanctions the conclusion of agreements 
in implementation of treaties.\153\ Moreover, it was early 
opined by Attorney General Wirt in 1822 that the President's 
duty under this constitutional provision extends not only to 
the Constitution, statutes, and treaties of the United States 
but also to ``those general laws of nations which govern the 
intercourse between the United States and foreign nations.'' 
\154\ This view appears to have been accepted subsequently by 
the Supreme Court in In re Neagle,\155\ where it was suggested 
in dictum that the President's responsibility under the clause 
includes the enforcement of ``rights, duties, and obligations 
growing out of * * * our international relations * * *'' \156\ 
Accordingly, it has been argued that the clause ``sanctions 
agreements which are necessary to fulfill [non-treaty] 
international obligations of the United States.'' \157\
---------------------------------------------------------------------------
    \153\ See McDougal and Lans, p. 248, and Mathews, p. 367. See also 
Henkin 1996, pp. 219-220.
    \154\ 1 Op. Atty. Gen. 566, 570 (1822).
    \155\ 135 U.S. 1 (1890).
    \156\ Ibid. at 64.
    \157\ McDougal and Lans, p. 248. McDougal and Lans state that the 
``take care'' clause provides an alternatie source of authority for the 
Boxer Indemnity Protocol of 1901 following cessation of the Boxer 
Rebellion in China. Ibid., p. 248, n. 150. The text of the protocol may 
be found in Malloy, Treaties, v. 2, p. 2006. Concerning the use of the 
``take care'' clause as authority for executive implementation of 
international law, Professor Henkin notes that-- * * * Writers have not 
distinguished between (a) authority to carry out the obligations of the 
United States under treaty or customary law (which can plausibly be 
found in the `take care' clause); (b) authority to exercise rights 
reserved to the United States by international law or given it by 
treaty; and (c) authority to compel other states to carry out their 
international obligations to the United States. Henkin 1996, p. 347, n. 
54.
---------------------------------------------------------------------------
    Sole executive agreements validly concluded pursuant to one 
or more of the President's independent powers under Article II 
of the Constitution may be accorded status as Supreme Law of 
the Land for purposes of superseding any conflicting provisions 
of state law. As explained by the Supreme Court in Belmont:
          Plainly, the external powers of the United States are 
        to be exercised without regard to the state laws or 
        policies. The supremacy of a treaty in this respect has 
        been recognized from the beginning * * * And while this 
        rule in respect of treaties is established by the 
        express language of cl. 2, Art. VI, of the 
        Constitution, the same rule would result in the case of 
        all international compacts and agreements from the very 
        fact that complete power over international affairs is 
        in the national government and is not and cannot be 
        subject to any curtailment or interference on the part 
        of the several states.\158\
---------------------------------------------------------------------------
    \158\ 301 U.S. at 331. See also Pink, 315 U.S. at 230-234.

    However, notwithstanding that treaties and Federal statutes 
are treated equally by the Constitution with legal primacy 
accorded the measure which is later in time,\159\ the courts 
have been reluctant to enforce Presidential agreements in the 
face of prior congressional enactments. Judicial uncertainty 
was early evidenced in Watts v. United States, supra, where the 
Supreme Court of the Territory of Washington, after affirming 
on the basis of the President's ``executive power'' the 
validity of an agreement with Great Britain providing for the 
joint occupation of San Juan Island, tentatively enforced the 
agreement against a prior Federal law defining the government 
of the territory. According to the court:
---------------------------------------------------------------------------
    \159\ Whitney v. Robertson, 124 U.S. 190 (1888).
---------------------------------------------------------------------------
          Such conventions are not treaties within the meaning 
        of the Constitution, and, as treaties supreme law of 
        the land, conclusive on the court, but they are 
        provisional arrangements, rendered necessary by 
        national differences involving the faith of the nation 
        and entitled to the respect of the courts. They are not 
        a casting of the national will into the firm and 
        permanent condition of law, and yet in some sort they 
        are for the occasion an expression of the will of the 
        people through their political organ, touching the 
        matters affected; and to avoid unhappy collision 
        between the political and judicial branches of the 
        government, both which are in theory inseparably all 
        one, such an expression to a reasonable limit should be 
        followed by the courts and not opposed, though 
        extending to the temporary restraint or modification of 
        the operation of existing statutes. Just as here, we 
        think, this particular convention respecting San Juan 
        should be allowed to modify for the time being the 
        operation of the organic act of this Territory 
        (Washington) so far forth as to exclude to the extent 
        demanded by the political branch of the government of 
        the United States, in the interest of peace, all 
        territorial interference for the government of that 
        island.\160\
---------------------------------------------------------------------------
    \160\ 1 Wash. Terr. at 294. Elsewhere the court ``presumed'' that 
Congress had been ``fully apprised'' of the situation by the President 
and noted tacit congressional acquiescence for a long term of years. 
Ibid., p. 293.

    Decisions by lower Federal courts of more recent date, 
however, have voided sole executive agreements which were 
incompatible with pre-existing Federal laws. Thus, in United 
States v. Guy W. Capps, Inc.,\161\ a U.S. Circuit Court of 
Appeals refused to enforce a Presidential agreement concerning 
the importation of Canadian potatoes into the United States 
inasmuch as the agreement contravened the requirements of the 
Agricultural Act of 1948.\162\ According to the court, ``* * * 
whatever the power of the executive with respect to making 
executive trade agreements regulating foreign commerce in the 
absence of action by Congress, it is clear that the executive 
may not through entering into such an agreement avoid complying 
with a regulation prescribed by Congress.'' \163\ The court's 
rationale for this conclusion was grounded upon Congress' 
expressly delegated authority under Article I, Section 8, 
Clause 3, of the Constitution to regulate foreign commerce (as 
reflected in the statute in the present case) and upon the 
following statement from Justice Jackson's frequently quoted 
concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer: 
\164\
---------------------------------------------------------------------------
    \161\ 204 F. 2d 655 (4th Cir. 1953), aff'd on other grounds, 348 
U.S. 296 (1955).
    \162\ Agricultural Act of 1948, Sec. 3, 62 Stat. 1247, 1248-1250.
    \163\ 204 F. 2d at 659-660.
    \164\ 343 U.S. 579 (1952).
---------------------------------------------------------------------------
          When the President takes measures incompatible with 
        the expressed or implied will of Congress, his power is 
        at its ebb, for then he can rely only upon his own 
        constitutional powers minus any constitutional powers 
        of Congress over the matter. Courts can sustain 
        exclusive Presidential control in such a case only by 
        disabling the Congress from acting upon the subject. 
        Presidential claim to a power at once so conclusive and 
        preclusive must be scrutinized with caution, for what 
        is at stake is the equilibrium established by our 
        constitutional system.\165\
---------------------------------------------------------------------------
    \165\ Ibid. at 659, quoting Justice Jackson's concurring opinion in 
Youngstown, 343 U.S. at 637-638.

    Similar holdings have occurred in subsequent cases on the 
authority of Guy Capps. In Seery v. United States,\166\ for 
example, the U.S. Court of Claims denied enforcement of a 
Presidential agreement settling post-World War II claims with 
Austria \167\ in the face of prior Federal law authorizing suit 
against the United States on constitutional claims.\168\ The 
court declared that:
---------------------------------------------------------------------------
    \166\ 127 F. Supp. 601 (Ct. Cl. 1955).
    \167\ Agreement Respecting the Settlement of Certain War Accounts 
and Claims, United States-Austria, June 21, 1947, 61 Stat. 4168.
    \168\ 28 U.S.C. Sec. 1491.
---------------------------------------------------------------------------
          * * * It would indeed be incongruous if the Executive 
        Department alone, without even the limited 
        participation by Congress which is present when a 
        treaty is ratified, could not only nullify the Act of 
        Congress consenting to suit on Constitutional claims, 
        but, by nullifying that Act of Congress, destroy the 
        constitutional right of a citizen. In United States v. 
        Guy W. Capps * * * the court held that an executive 
        agreement which conflicted with an Act of Congress was 
        invalid.\169\
---------------------------------------------------------------------------
    \169\ 127 F. Supp. at 607.

    Reference may also be made to Swearingen v. United States 
\170\ where a Federal District Court treated the Agreement in 
Implementation of Article III of the Panama Canal Treaty of 
1977 \171\ as a sole executive agreement, and, as such, void 
for purposes of conferring an income tax exemption on American 
employees of the Panama Canal Commission in derogation of 
Section 61(a) of the Internal Revenue Code.\172\ The rule of 
the Guy Capps case is also reflected in the Department of 
State's Circular 175 procedure governing the making of 
international agreements,\173\ as well as in the American Law 
Institute's current Restatement (Third) of the Foreign 
Relations Law of the United States.\174\
---------------------------------------------------------------------------
    \170\ 565 F. Supp. 1019 (D. Colo. 1983).
    \171\ Agreement in Implementation of Article III of the Panama 
Canal Treaty, with Annexes, Agreed Minute and Related Notes, signed 
Sept. 7, 1977, 33 U.S.T. 141, TIAS 10031.
    \172\ 26 U.S.C. Sec. 61(a). Compare Corliss v. United States, 567 
F. Supp. 162 (1983), holding, on the basis of the legislative history 
of the agreement in the U.S. Senate, that the agreement was not 
intended to exempt American employees from Federal income tax 
liability.
    \173\ 11 For. Aff. Man. Sec. 721.2b(3).
    \174\ Rest. 3d, Sec. 115, Reporters' Note 5.
---------------------------------------------------------------------------
    Notwithstanding that the rule of the Guy Capps case appears 
to enjoy general acceptance, contrary arguments have been 
advanced by other authorities, including the just cited 
Restatement (Third).\175\ The latter thus states that:
---------------------------------------------------------------------------
    \175\ Ibid.
---------------------------------------------------------------------------
          * * * it has been argued that a sole executive 
        agreement within the President's constitutional 
        authority is federal law, and United States 
        jurisprudence has not known federal law of different 
        constitutional status. ``All Constitutional acts of 
        power, whether in the executive or in the judicial 
        department, have as much legal validity and obligation 
        as if they proceeded from the legislature.'' The 
        Federalist No. 64 (Jay), cited in United States v. 
        Pink, supra, 315 U.S. at 230 * * * See Henkin, Foreign 
        Affairs and the Constitution 186, 432-33 (1972). Of 
        course, even if a sole executive agreement were held to 
        supersede a statute, Congress could reenact the statute 
        and thereby supersede the intervening executive 
        agreement as domestic law.\176\
---------------------------------------------------------------------------
    \176\ Ibid.

    The precedential effect of the Guy Capps rule may also be 
somewhat eroded by judicial dicta suggesting that the circuit 
court's opinion in the case was ``neutralized'' by the Supreme 
Court's affirmance on other grounds \177\ and that the question 
as to the effect of a Presidential agreement upon a prior 
conflicting act of Congress has ``apparently not yet been 
completely settled.'' \178\ Moreover, in the two cases which 
have specifically adhered to the Guy Capps rule--Seery and 
Swearingen--the courts, respectively, were either strongly 
influenced by Bill of Rights considerations or failed to 
consider the possibility that the agreement in issue may have 
effectively received the sanction of the Senate as an agreement 
pursuant to an existing treaty. It appears, therefore, that the 
law on this point may yet be in the course of further 
development.
---------------------------------------------------------------------------
    \177\ South Puerto Rico Sugar Co. Trading Corp. v. United States, 
334 F. 2d 622, 634, n. 16 (Ct. Cl. 1964).
    \178\ American Bitumils & Asphalt Co. v. United States, 146 F. 
Supp. 703, 708 (Ct. Cl. 1956), citing both Guy Caps and Seery.


     V. NEGOTIATION AND CONCLUSION OF INTERNATIONAL AGREEMENTS \1\
---------------------------------------------------------------------------

    \1\ Prepared by Marjorie Ann Browne, Specialist in International 
Relations.
---------------------------------------------------------------------------
                              ----------                              

    Treatymaking begins with the negotiation and conclusion or 
signing of an agreement and ends with its ratification or 
acceptance as binding by the parties and its entry into force. 
This chapter examines the first stage, negotiation and 
conclusion.

                             A. Negotiation

    The negotiation of a treaty is the process by which the 
representatives of governments agree on the substance, terms, 
and wording of an international agreement. The word 
``negotiation'' has been defined as ``the exchange and 
discussion of proposals by the representatives of the parties 
concerned with a view to reaching a mutually acceptable 
agreement.'' \2\
---------------------------------------------------------------------------
    \2\ U.S. Department of State. Digest of International Law. Prepared 
by and under the direction of Marjorie M. Whiteman, Assistant Legal 
Adviser, Department of State. Vol. 14, p. 19. (hereafter cited as 14 
Whiteman).
---------------------------------------------------------------------------
    Nations negotiate and conclude treaties through individuals 
who have been issued ``full powers'' to represent their states 
for that purpose or are otherwise clearly intended to represent 
their states. Under international law, heads of state, heads of 
government, or foreign ministers are accepted as representing 
their states without a ``full powers'' document. Similarly, 
chiefs of diplomatic missions are considered representatives 
for purposes of negotiating a treaty with the state to which 
they are assigned, as are accredited representatives to 
international organizations and conferences for purposes of 
adopting a treaty text within those groups.\3\ U.S. practice is 
that a ``full power'' is not usually issued for conclusion of 
an international agreement other than a treaty.\4\
---------------------------------------------------------------------------
    \3\ Vienna Convention, Art. 7.
    \4\ Circular 175 Procedure, sec. 730.3. Reprinted in Appendix 4 of 
this volume.
---------------------------------------------------------------------------
    In the United States, the actual negotiation of treaties 
and other international agreements is widely recognized as 
being within the power of the President. One authority calls 
negotiation ``a Presidential monopoly.'' \5\ Others argue that 
the Senate's advice and consent function applies before and 
during the negotiations as well as prior to ratification.\6\
---------------------------------------------------------------------------
    \5\ U.S. Library of Congress. Congressional Research Service. The 
Constitution of the United States of America: Analysis and 
Interpretation. Annotation of Cases Decided by the Supreme Court of the 
United States to June 29, 1992. Washington, GPO, 1996, p. 470. 
(hereafter cited as Annotated Constitution).
    \6\ Webb, Richard E. Treaty-Making and the President's Obligation 
to Seek the Advice and Consent of the Senate with Special Reference to 
the Vietnam Peace Negotiations. Ohio State Law Journal, v. 31, summer 
1970, pp. 450-515.
---------------------------------------------------------------------------
    Article II, Section 2 of the Constitution provides that 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.'' The President's control of 
negotiations also springs from three other provisions of the 
Constitution which result in his being the official channel of 
communications with other nations. Article II, Section 2 states 
that the President ``shall nominate, and by and with the advice 
and consent of the Senate, shall appoint ambassadors, other 
public ministers and consuls * * *.'' Section 3 of Article II 
provides that the President ``shall receive ambassadors and 
other public ministers.'' This power has made the President 
``the sole mouthpiece of the nation in its dealings with other 
nations.'' \7\ Finally, Article II, Section 1, provides: ``The 
executive power shall be vested in a President * * *.''
---------------------------------------------------------------------------
    \7\ Annotated Constitution, p. 541.
---------------------------------------------------------------------------
    The President or his representative begins the process of 
negotiations by inviting representatives of another nation, or 
responding to another country's invitation, to discuss 
proposals for an agreement. The President nominates and, with 
Senate advice and consent, appoints a person, usually an 
ambassador, minister, or foreign service officer, or delegation 
to represent the United States. He issues the negotiator ``full 
powers'' (a document certifying that the individual represents 
the United States) and provides instructions on the objectives 
and scope of the negotiations. He determines whether and when 
the text is signed by the United States.
    Nonetheless, during the negotiation phase Congress 
frequently plays a part. The Department of State procedures for 
negotiating treaties include timely and appropriate 
consultation with congressional leaders and committees as an 
objective. The procedures provide for consultations on the 
intention to negotiate significant new agreements, the form of 
the agreement, legislation that might be necessary, and other 
developments concerning treaties.\8\
---------------------------------------------------------------------------
    \8\ Circular 175 Procedures, Sections 720.2, 721.4, and 723.1e. The 
text of Circular 175 procedures is contained in Appendix 4 of this 
volume. See also discussion in Chapter X.
---------------------------------------------------------------------------
    If the terms ``negotiation and conclusion'' of a treaty are 
used in a broader sense to include all the aspects of 
``making'' a treaty prior to the decision on ratification, 
clearly there are other aspects of this process in which the 
Senate or the entire Congress may participate. These include 
proposing a subject for a treaty to the President, advising and 
consenting on the appointment of an ambassador or minister to 
conduct the negotiations, and participating in the negotiations 
as observers or advisers to U.S. delegations. Some contend 
Senate attachment of conditions to its advice and consent 
constitutes an additional stage in the negotiating process.

                               logan act

    One statute passed by Congress in 1799, the Logan Act, 
appears to have strengthened executive branch control over 
negotiations by prohibiting unauthorized citizens from 
initiating or carrying out correspondence or intercourse with 
foreign governments on disputes with the United States. The 
Logan Act was enacted into positive law in the U.S. Code on 
June 25, 1948, and states:
    Private correspondence with foreign governments
          Any citizen of the United States, wherever he may be, 
        who, without authority of the United States, directly 
        or indirectly commences or carries on any 
        correspondence or intercourse with any foreign 
        government or any officer or agent thereof, with intent 
        to influence the measures or conduct of any foreign 
        government or of an officer or agent thereof, in 
        relation to any disputes or controversies with the 
        United States, or to defeat the measures of the United 
        States, shall be fined not more than $5,000 or 
        imprisoned not more than three years or both.
          This section shall not abridge the right of a citizen 
        to apply, himself or his agent, to any foreign 
        government or the agents thereof for redress of any 
        injury which he may have sustained from such government 
        or any of its agents or subjects.\9\
---------------------------------------------------------------------------
    \9\ 18 U.S.C. 953. June 25, 1948, c.645, 62 Stat. 744. Originally 
enacted on January 30, 1799 as 1 Stat. 613.

    The law was enacted after a private citizen, Dr. George 
Logan, traveled to France and attempted to end the plundering 
of American merchant ships authorized by the French director of 
the revolutionary government. Although there have been no known 
prosecutions under the Act and only one indictment, there have 
been several judicial and congressional references to it, 
indicating, in the words of one analyst, that the Act ``has not 
been forgotten and that it is at least a political weapon 
against any one who without authority interferes in the foreign 
relations of the United States.'' \10\
---------------------------------------------------------------------------
    \10\ Seitzenger, Michael. The Logan Act. Congressional Research 
Service Report No. 78-212 A.
---------------------------------------------------------------------------
    Questions concerning the Logan Act were raised concerning 
activities of a number of individuals including Henry Ford, 
Senator Warren Harding, President William Howard Taft, after he 
was out of office, Harold Stassen, Senator Joseph McCarthy, 
Cyrus Eaton, Jane Fonda, the Reverend Jesse Jackson, and 
Speaker of the House Jim Wright.\11\
---------------------------------------------------------------------------
    \11\ Simpson, Curtis C., III. The Logan Act of 1799: May It Rest In 
Peace. California Western International Law Journal, v. 10, spring 
1980, pp. 365-385. Remarks of Representative Newt Gingrich. Role of 
Executive and Legislative Branches in Foreign Policy. Congressional 
Record, November 17, 1987, pp. H10109-H10115 (daily ed.).
---------------------------------------------------------------------------
    After the journey of former Attorney General Ramsey Clark 
to Iran in connection with the Americans held hostage there, 
the Senate passed an amendment supporting ``the enforcement of 
any applicable statutes not excluding the Logan Act or any 
other Act that may be violated in the course of private 
negotiating initiatives.'' \12\ However, action was not 
completed on the Department of Justice authorization bill to 
which the amendment was attached.
---------------------------------------------------------------------------
    \12\ Debate on S. 2377, Congressional Record, June 18, 1980, p. 
S7371 (daily ed.).
---------------------------------------------------------------------------
    One issue is whether Members of Congress fit in the 
category of private citizens, and whether their communication 
with foreign governments would be ``unauthorized by the United 
States.'' These were addressed by the Department of State in 
1975. Assistant Secretary of State for Congressional Relations 
Robert J. McCloskey wrote that certain contacts of Senators 
John Sparkman and George McGovern with Cuban officials were not 
inconsistent with the Logan Act. The opinion stated:
          The clear intent of [the Logan Act] is to prohibit 
        unauthorized persons from intervening in disputes 
        between the United States and foreign governments. 
        Nothing in Section 953, however, would appear to 
        restrict members of the Congress from engaging in 
        discussions with foreign officials in pursuance of 
        their legislative duties under the Constitution. In the 
        case of Senators McGovern and Sparkman the executive 
        branch, although it did not in any way encourage the 
        Senators to go to Cuba, was fully informed of the 
        nature and purpose of their visit, and had validated 
        their passports for travel to that country.
          Senator McGovern's report of his discussions with 
        Cuban officials stated: ``I made it clear that I had no 
        authority to negotiate on behalf of the United States--
        that I had come to listen and learn * * *'' Senator 
        Sparkman's contacts with Cuban officials were conducted 
        on a similar basis. The specific issues raised by the 
        Senators (e.g., the Southern Airways case; Luis Tiant's 
        desire to have his parents visit the United States) 
        would, in any event, appear to fall within the second 
        paragraph of Section 953.
          Accordingly, the Department does not consider the 
        activities of Senators Sparkman and McGovern to be 
        inconsistent with the stipulations of Section 953.\13\
---------------------------------------------------------------------------
    \13\ Digest of United States Practice in International Law 1975, p. 
750.

    The Logan Act raises constitutional issues as well, 
especially regarding freedom of speech and the right to 
travel.\14\
---------------------------------------------------------------------------
    \14\ Vagts, Alfred. Paper Tiger or Sleeping Giant. American Journal 
of International Law, v. 60, 1966, p. 268. Kearney, Kevin M. Private 
Citizens in Foreign Affairs: A Constitutional Analysis. Emory Law 
Journal, v. 36, winter 1987, pp. 285-355.
---------------------------------------------------------------------------
    Some Members of Congress have made efforts to repeal the 
Logan Act. Senator Edward Kennedy attempted to delete the 
measure from the 1978 bill to amend the U.S. criminal code (S. 
1437, 95th Cong.) but agreed to leave it in to prevent 
prolonged debate.\15\ Representative Anthony Beilenson 
introduced H.R. 7269 to repeal the Act on May 6, 1980, stating 
that there were fundamental constitutional problems with the 
Act and that its main use had been to ``allow periodic calls 
for prosecution motivated by opposition to the cause being 
expressed instead of actual concern about treason.'' \16\
---------------------------------------------------------------------------
    \15\ Congressional Record, January 30, 1978, p. 767 (daily ed.).
    \16\ Congressional Record, v. 126, part 8, May 6, 1980, pp. 10112-
10113.
---------------------------------------------------------------------------
    In regard to the negotiation of treaties, under 
international law any treaties concluded by persons who have 
not been issued full powers from their governments, outside of 
specific officials such as the head of state, are considered 
without legal effect unless afterward confirmed by the 
state.\17\
---------------------------------------------------------------------------
    \17\ Vienna Convention. Article 8.
---------------------------------------------------------------------------

           B. Initiative for an Agreement; Setting Objectives

    Within the United States, the proposal that the United 
States enter negotiations for an international agreement 
usually springs from the executive branch in the course of its 
diplomatic activities with other nations or in its 
administration of U.S. foreign policy. On occasion, however, 
Congress or its committees, subcommittees, or individual 
Members have formally or informally proposed that the President 
undertake negotiations or diplomatic actions aimed at achieving 
international agreement on a certain course of action. 
Proposals have been embodied both in sense of the Congress 
resolutions and in binding legislation.
    One of the best known examples of a congressional proposal 
is the Vandenberg Resolution that ultimately led to 
negotiations culminating in the North Atlantic Treaty. Adopted 
by the Senate on June 11, 1948, it expressed the sense of the 
Senate ``that this Government, by Constitutional processes, 
should particularly pursue'' certain objectives including:
          * * * Progressive development of regional and other 
        collective arrangements for individual and collective 
        self-defense in accordance with the purposes, 
        principles, and provisions of the Charter.
          * * * Association of the United States, by 
        constitutional process, with such regional and other 
        collective arrangements as are based on continuous and 
        effective self-help and mutual aid, and as affect its 
        national security.\18\
---------------------------------------------------------------------------
    \18\ S. Res. 239, 80th Cong., 2d Sess.

    The Senate Foreign Relations Committee which had, in close 
cooperation with the Department of State, worked out the 
resolution, later reported: ``Pursuant to this advice the 
President in July authorized the Secretary of State to enter 
into exploratory conversations on the security of the North 
Atlantic area. * * *'' \19\ The North Atlantic Treaty was 
signed on April 4, 1949, and received the advice and consent of 
the Senate.
---------------------------------------------------------------------------
    \19\ S. Exec. Rept. 8, 81st Cong., 1st Sess.
---------------------------------------------------------------------------
    The Monroney Resolution suggesting the International 
Development Association is also often cited as a congressional 
initiative. On July 23, 1958, the Senate adopted a resolution 
introduced by Senator A.S. Mike Monroney suggesting that the 
administration study the possibility of proposing to other 
governments the establishment of an international development 
association as a soft-loan affiliate of the World Bank.\20\ The 
articles of agreement for this international financial 
institution were negotiated and submitted to Congress with a 
request for legislation to authorize U.S. participation. 
Congress authorized the participation on June 30, 1960.\21\
---------------------------------------------------------------------------
    \20\ S. Res. 264, 85th Cong., 2d Sess.
    \21\ Public Law 86-565.
---------------------------------------------------------------------------
    The Seabed Arms Control Treaty, prohibiting the emplacement 
of nuclear weapons on the seabed and ocean floor, was in part a 
congressional initiative. Senator Claiborne Pell introduced 
resolutions in 1967 expressing the Senate's concern for 
reasonable rules governing the extraterritorial marine 
environment, and the need to negotiate a treaty to prohibit 
stationing nuclear weapons on the seabed.\22\ The treaty was 
signed in 1971, and the Senate approved it, by a vote of 83-0 
on February 15, 1972.
---------------------------------------------------------------------------
    \22\ S. Res. 172 and S. Res. 186, 90th Cong.
---------------------------------------------------------------------------
    Similarly, Congress helped initiate the Environmental 
Modification Convention. In July 1972, the U.S. Government 
renounced the use of climate modification techniques for 
hostile purposes, and beginning in 1972 both the House and 
Senate held hearings on a resolution to prohibit the use of any 
environmental or geophysical modification activity as a weapon 
of war. Senate Resolution 71, introduced by Senator Pell and 
passed July 11, 1973, stated the sense of the Senate that the 
U.S. Government ``should seek'' the agreement of other 
governments to a treaty along the following lines'' and 
suggested wording of a treaty. A Convention on the Prohibition 
of Military or Other Hostile Use of Environmental Modification 
Techniques was concluded on May 18, 1977, and entered into 
force for the United States January 17, 1980.
    Other congressional resolutions have also proposed 
negotiations. For example, on August 3, 1977, Congress stated 
the sense of the Congress ``that the President should initiate 
a major diplomatic initiative toward the creation of an 
international system of nationally held grain reserves which 
provides for supply assurance to consumers and income security 
to producers.'' \23\ On May 25, 1983, S. Res. 95 expressed the 
sense of the Senate that the President should initiate 
negotiations on a new long-term agreement on agricultural trade 
with the Soviet Union.
---------------------------------------------------------------------------
    \23\ Sec. 510, Public Law 95-105.
---------------------------------------------------------------------------
    On occasion the resolutions proposing negotiations have 
contained a reporting request or requirement. S. Res. 95 
mentioned above stated the sense of the Senate that the 
President should report to Congress as soon as practicable on 
the potential impact of the agreement on the U.S. economy. S. 
Res. 133, adopted April 18, 1975, called for the President to 
report within 30 days on efforts to promote a settlement in 
Vietnam.\24\
---------------------------------------------------------------------------
    \24\ S. Rept. 94-39.
---------------------------------------------------------------------------
    Congress also utilized binding legislation to authorize, 
call for, or suggest negotiations for international agreements. 
In the Trade Agreements Act of 1974, Congress urged the 
President to utilize the authority granted in order to 
negotiate trade agreements with other countries that would 
reduce and eliminate nontariff barriers. The Act specified 
negotiating objectives for the United States.\25\
---------------------------------------------------------------------------
    \25\ Secs. 102, 103, 104, and 106 of the Trade Act of 1974, Public 
Law 93-618, approved January 3, 1975.
---------------------------------------------------------------------------
    Section 36 of the Foreign Assistance Act of 1973 called for 
the President or his delegate to seek, as soon as possible, a 
revision of the Social Progress Trust Fund Agreement, between 
the United States and the Inter-American Development Bank, 
specifying revisions to be made. Section 36(e) stated, ``Not 
later than January 1, the President shall report to Congress on 
his action taken pursuant to this section.\26\ Section 39 of 
the same Act stated the sense of Congress that the United 
States should participate in efforts to alleviate world food 
shortages and that ``To this end, the President shall--'' among 
other things request member nations of the General Agreement on 
Tariffs and Trade to explore certain questions, consult and 
cooperate with appropriate international agencies in certain 
purposes, and report his findings and recommendations on the 
implementation of the section by December 31, 1974.
---------------------------------------------------------------------------
    \26\ Public Law 93-189.
---------------------------------------------------------------------------
    Legislation passed in l981 required the Secretary of the 
Treasury to submit a report to both Houses of Congress by 
December 15, 1981, on the status of negotiations within the 
Organization for Economic Cooperation and Development on 
arrangements involving official export financing including an 
assessment of the progress and the prospects for a successful 
conclusion.\27\
---------------------------------------------------------------------------
    \27\ Sec. 381(a) of Public Law 97-35, approved August 13, 1981.
---------------------------------------------------------------------------
    The Comprehensive Anti-Apartheid Act of 1986, passed over 
the veto of President Reagan, called for negotiations to reach 
international cooperative agreements with the other 
industrialized democracies on measures to bring about the 
complete dismantling of apartheid, and a report from the 
President within 180 days describing efforts to negotiate 
multilateral measures.\28\ The measure also provided that 
agreements submitted to Congress under the provision should 
enter into force only if the President notified Congress 30 
days in advance and Congress enacted a joint resolution of 
approval within 30 days under expedited procedures.
---------------------------------------------------------------------------
    \28\ Sec. 401(b)(1) of Public Law 99-440 (22 U.S.C. 5081), approved 
October 2, 1986, as amended by Public Law 99-631, approved November 7, 
1986.
---------------------------------------------------------------------------
    President Bush objected to some directives concerning 
negotiation of agreements in signing both Foreign Relations 
Authorization Acts enacted during his administration.\29\ As an 
example, section 102 of Public Law 101-246 prohibited the use 
of funds for any U.S. delegation to any meeting within the 
framework of the Conference on Security and Cooperation in 
Europe (CSCE), unless the U.S. delegation included individuals 
representing the Commission on Security and Cooperation in 
Europe. The commission was a legislative-executive body which 
had been established earlier by Congress. President Bush said 
the section ``impermissibly intrudes upon my constitutional 
authority to conduct our foreign relations and to appoint our 
Nation's envoys.'' \30\ Although President Bush stated that he 
would construe the measure as expressing the sense of the 
Congress but not imposing a binding legal obligation, 
representatives of the commission have been regularly included 
in delegations to meetings of what is now the Organization on 
Security and Cooperation in Europe.
---------------------------------------------------------------------------
    \29\ Foreign Relations Authorization Act, Fiscal Years 1990 and 
1991, Public Law 101-246, approved February 16, 1990; Foreign Relations 
Authorization Act, Fiscal Years 1992 and 1993, Public Law 102-138, 
approved October 28, 1991.
    \30\ Statement on Signing the Foreign Relations Authorization Act, 
Fiscal Years 1990 and 1991, February 16, 1990. Weekly Compilation of 
Presidential Documents, February 19, 1990, vol. 26.
---------------------------------------------------------------------------

                 C. Advice and Consent on Appointments

    Most treaties and international agreements are negotiated 
by ambassadors or foreign service officers already assigned to 
particular countries or functions.\31\
---------------------------------------------------------------------------
    \31\ This section is based in part on The Senate Role in Foreign 
Affairs Appointments. U.S. Congress. Senate. Committee on Foreign 
Relations. Committee Print. 97th Cong., 2d Sess. Revised July 1982. 119 
pp.
---------------------------------------------------------------------------
    Nevertheless, the Senate sometimes has an exclusive 
opportunity to advise on treaty negotiations at the outset, 
through the constitutional requirement that it advise and 
consent to appointments of ``ambassadors, other public 
ministers and consuls.'' \32\
---------------------------------------------------------------------------
    \32\ Constitution, Article II, Section 2, Clause 2.
---------------------------------------------------------------------------
    The requirement for Senate confirmation appears to have 
been a basic part of the plan to divide the foreign relations 
powers between Congress and the President, with a special role 
for the Senate in the making of treaties. The Constitution 
divides the power relating to making treaties and appointing 
ambassadors in essentially the same manner, although it 
requires a two-thirds majority only for treaties.
    At the time of the writing of the Constitution, there was 
reason to distribute the power to appoint ambassadors and 
ministers in the same fashion as the power to make treaties. 
Treaties were made by ambassadors with full powers from the 
sovereign, usually a king, who issued instructions relating to 
the treaty. If the ambassador stayed within his instructions, 
it was considered obligatory for the sovereign to ratify the 
treaty his emissary concluded.
    Under the doctrine of obligatory ratification, the only way 
the Senate could have a meaningful role in treatymaking was to 
participate during the negotiating stage or during the 
proposing stage when the instructions to the plenipotentiaries 
were being drawn up. Gradually, the Senate practice of 
approving treaties with reservations, the French Revolution, 
and moves toward democratic control in other countries, brought 
about a change in concept and ratification of a treaty came to 
be recognized as discretionary rather than obligatory.\33\
---------------------------------------------------------------------------
    \33\ Jones, J. Mervyn. Full Powers and Ratification, A Study in the 
Development of Treaty-Making Procedure. Cambridge University Press, 
1946, pp. 1-20.
---------------------------------------------------------------------------
    The Framers of the Constitution took into account the link 
between appointments and treaties. In discussing a proposal 
that ``no treaty shall be binding on the United States which is 
not ratified by a law'' and thus would have required the 
consent of the entire Congress, one delegate to the 
Constitutional Convention, according to Madison's notes, 
``thought there was something of solecism in saying that the 
acts of a Minister with plenipotentiary powers from one body 
should depend for ratification on another body.'' \34\ Another 
delegate, according to McHenry's notes for August 23, 1787, 
objected to requiring ratification by a law because ``a 
minister could not then be instructed by the Senate who were to 
appoint him, or if instructed there could be no certainty that 
the House of Representatives would agree to confirm what he 
might agree to under these instructions.\35\
---------------------------------------------------------------------------
    \34\ Madison's notes, p. 13.
    \35\ Farrand, Max. The Records of the Federal Convention of 1787. 
New Haven, Yale University Press, vol. II, p. 395.
---------------------------------------------------------------------------
    Early practice under the Constitution also indicates that 
the Framers expected that the Senate's confirmation of 
appointments of ambassadors and ministers would give the Senate 
a significant role in making treaties. Often nominations were 
submitted along with a description of the treaty the nominee 
was to seek. To illustrate, on January 11, 1792, President 
Washington nominated William Carmichael, the charge d'affaires 
at Madrid, and William Short, then charge d'affaires at Paris, 
to be commissioners plenipotentiary for negotiating a treaty 
with Spain concerning the navigation of the Mississippi, and 
they were confirmed by the Senate on January 24, 1792. In 
March, the President sent a memo to the Senate proposing to 
extend the negotiations to the subject of commerce, setting 
forth the instructions that would be given to the 
commissioners, and asking if the Senate would ``advise and 
consent to the extension of the powers of the commissioners, as 
proposed, and to the ratification of a treaty which shall 
conform to those instructions, should they enter into such a 
one.'' On March 16, 1792, the Senate passed a resolution giving 
its advice and consent to the extension of powers and stating 
that ``they will advise and consent to the ratification of such 
treaty as the said commissioners shall enter into with the 
Court of Spain in conformity to those instructions.'' \36\
---------------------------------------------------------------------------
    \36\ U.S. Congress. Senate. Executive Journal, vol. I, 1792, p. 
115.
---------------------------------------------------------------------------
    The practice of submitting the instructions for 
negotiations along with the nominations did not continue long. 
In the case of the nomination of John Jay to conclude a treaty 
with Great Britain in 1794, the Senate rejected a motion that 
the President be requested to inform the Senate of ``the whole 
business with which the provided envoy is to be charged.'' \37\ 
Nevertheless, the debate on the nomination indicated that the 
Senate ``passed not only upon the choice of the envoy but also 
upon the expediency of the mission itself.'' \38\
---------------------------------------------------------------------------
    \37\ U.S. Congress. Senate. Executive Journal, vol. II, 1809, p. 
113.
    \38\ Hayden, Joseph Ralston. The Senate and Treaties, 1789-1817. 
New York, Macmillan, 1920, p. 70.
---------------------------------------------------------------------------
    In recent years the Senate or the Senate Foreign Relations 
Committee has on occasion used nominations as a vehicle for 
discussion of treaty negotiations. When Paul H. Nitze was 
nominated as ambassador while serving as the head of the U.S. 
Delegation to the Intermediate Range Nuclear Forces 
Negotiations, the committee held both a closed and open session 
with him. Ambassador Nitze had been in the post for 6 months 
with the personal rank of ambassador.\39\ Chairman of the 
Senate Foreign Relations Committee Charles Percy noted that the 
open hearing provided an opportunity to review the issues that 
involve arms control. In the nomination of Sol M. Linowitz for 
the rank of ambassador as personal representative of the 
President to the West Bank and Gaza Strip Autonomy 
Negotiations, the committee hearing covered problems relating 
to the Middle East and Mr. Linowitz's status as a ``special 
Government employee'' receiving no compensation.\40\
---------------------------------------------------------------------------
    \39\ U.S. Senate. Committee on Foreign Relations. Hearing on 
Nomination of Paul H. Nitze, March 24, 1982, 16 pp.
    \40\ U.S. Senate. Committee on Foreign Relations. Nomination of 
Sol. M. Linowitz. Exec. Rept. 96-26, 38 pp.
---------------------------------------------------------------------------

                    unconfirmed presidential agents

    A continuing problem has been the appointment or use of 
persons not confirmed by the Senate to negotiate international 
agreements. In such cases, the Senate does not have an 
opportunity to vote on the appointment or to advise on the 
mission for which he is appointed. The negotiator remains a 
personal agent of the President. Similarly, the Assistant to 
the President for National Security Affairs, also called the 
National Security Adviser, is not confirmed by the Senate, but 
on occasion conducts negotiations.
    The subject has been controversial through most of American 
history. For example, in 1888, a fisheries treaty with Great 
Britain was criticized in the Senate Foreign Relations 
Committee report and in Senate debate on the grounds that the 
negotiators had not been appointed by and with the consent of 
the Senate. Proponents of the treaty countered with a list 
showing that of the persons conducting negotiations for the 
United States since 1789, 438 had been appointed without Senate 
confirmation and only 35 had been confirmed.\41\
---------------------------------------------------------------------------
    \41\ Holt, W. Stull. Treaties Defeated by the Senate. Gloucester, 
Mass., Peter Smith, 1964, p. 145.
---------------------------------------------------------------------------
    One authority has attributed the initiation of the practice 
of appointing special, unconfirmed agents for negotiation of 
specific treaties to the President's embarrassment over the 
Senate refusal in 1813 to approve the nomination of Albert 
Gallatin, Secretary of the Treasury, as a member of the mission 
to negotiate the Treaty of Ghent until he had resigned his 
position as Secretary of the Treasury.\42\
---------------------------------------------------------------------------
    \42\ Wright, Quincy. The Control of Foreign Relations. New York, 
Macmillan, 1922. pp. 328-331.
---------------------------------------------------------------------------
    Recent Presidents have also decided not to submit some 
appointments of negotiators to the Senate, although in the 20th 
century such nominations were rarely rejected by the Senate, 
and none have been since World War II. Nevertheless the 
possibility remains that a nomination might not be approved. 
Several nominations have raised a controversy or not been acted 
upon, and two were unfavorably reported by the Foreign 
Relations Committee.\43\
---------------------------------------------------------------------------
    \43\ In 1981, the Senate Foreign Relations Committee reported 
unfavorably the nomination of Ernest W. Lefever as Assistant Secretary 
for Human Rights and Humanitarian Affairs; the President, at the 
nominee's request, then withdrew the nomination. In 1983, the committee 
reported unfavorably the nomination of Kenneth L. Adelman as Director 
of the Arms Control and Disarmament Agency, but the nomination was 
approved by the full Senate.
---------------------------------------------------------------------------
    Presidents have sometimes conferred the ``personal rank'' 
of ambassador on persons appointed without Senate approval in 
order for the person to have equal diplomatic standing with 
representatives of other nations. The first person to receive 
the personal rank of ambassador was Whitelaw Reid, sent by 
President McKinley in 1897 for the ceremonial occasion of the 
60th anniversary of Queen Victoria's accession to the throne. 
Later the practice was extended to negotiating occasions. After 
the First World War, for example, the Secretary of the American 
commission to negotiate peace was given the rank of minister 
plenipotentiary.\44\
---------------------------------------------------------------------------
    \44\ Wriston, Henry Merritt. Executive Agents in American Foreign 
Relations. Gloucester, Mass., Peter Smith, 1967, p. 197.
---------------------------------------------------------------------------
    Congress has taken action to curb the practice of according 
persons the title of ambassador without the advice and consent 
of the Senate.\45\ In 1972, Congress incorporated into law a 
limitation that the President could confer the personal rank of 
ambassador or minister on an individual only in connection with 
a special mission for the President of a temporary nature and 
for a period not exceeding 6 months.\46\ The Foreign Service 
Act of 1980 also requires the President, except in urgent 
circumstances, 30 days prior to the conferral of the personal 
rank to submit a written report to the Foreign Relations 
Committee justifying the appointment.\47\
---------------------------------------------------------------------------
    \45\ U.S. Congress. Senate Committee on Foreign Relations. The 
Ambassador in U.S. Foreign Policy; Changing Patterns in Rules, 
Selection, and Designation. Committee Print, July 1981, pp. 9-11.
    \46\ Public Law 92-352.
    \47\ Public Law 96-465, as amended; Sec. 302(a)(2)(B).
---------------------------------------------------------------------------

                D. Consultations During the Negotiations

    The earliest practice under the Constitution indicates that 
originally the Framers planned for the Senate to give advice to 
the President during the treatymaking process as well as to 
give or withhold consent to the final treaty,\48\ but this 
procedure soon ended. By the time President Polk referred the 
proposal to divide the Oregon Territory at the 49th parallel to 
the Senate for its advice prior to the signing of the Oregon 
Treaty of 1846, as well as for its consent afterward, it was a 
rare practice.\49\
---------------------------------------------------------------------------
    \48\ See Chapter II.
    \49\ Cheever, Daniel S. and H. Field Haviland. American Foreign 
Policy and the Separation of Powers. Cambridge, Harvard University 
Press, 1952. p. 49.
---------------------------------------------------------------------------
    As the process has evolved, the Senate as a whole does not 
give, and the President does not seek, its advice on a treaty 
until the end of the process when it is asked to give its 
advice and consent to ratification.
    Nevertheless, Presidents or their Secretaries of State have 
often consulted with individual Senators or committees prior to 
or during the negotiating process in order to enhance the 
prospects of the final treaty. Secretary of State Webster 
consulted frequently with important Senators about the Webster-
Ashburton Treaty of 1842 settling the Canadian-Maine 
boundary.\50\ With President Taylor a Whig and the Senate in 
control of the Democrats, Secretary of State Clayton consulted 
Senators of both parties over the Clayton-Bulwer Treaty of 1850 
concerning a canal in Central America. The practice has been 
continued intermittently throughout the 20th century.
---------------------------------------------------------------------------
    \50\ Cheever and Haviland, p. 48.
---------------------------------------------------------------------------
    The consultations can take many forms and can be initiated 
either by the Senate or the executive branch. The Senate 
Foreign Relations Committee or other committees may hold 
consultative meetings with executive branch officials on 
objectives and problems in treaties. Executive branch officials 
frequently discuss prospective treaties with individual 
Senators or committees, particularly the Senate Foreign 
Relations Committee because of its jurisdiction over treaties. 
Other methods of consultation include public oversight 
hearings, telephone discussions, letters, and contacts through 
staff members to exchange information and views on progress and 
problems in the negotiations.
    Sometimes the consultation is effective in the sense that 
congressional views help shape the final product. One of the 
best examples is the drafting of the U.N. Charter. On May 27, 
1942, the chairman of the Foreign Relations Committee Senator 
Tom Connally, and Senator Warren R. Austin, the minority member 
of the committee designated after consultation with Republican 
leaders, and later other Members of both houses of Congress, 
were invited to participate in an Advisory Committee on Postwar 
Foreign Policy that did much of the initial planning for the 
United Nations. By 1944 a bipartisan committee of eight Members 
was meeting weekly for this purpose. In the case of the North 
Atlantic Treaty the Senate Foreign Relations Committee was 
consulted frequently during the negotiations and suggested 
specific language in the text.\51\
---------------------------------------------------------------------------
    \51\ U.S. Congress. Senate. Committee on Foreign Relations. S. 
Exec. Rept. 8, 81st Cong., 1st Sess. Report on North Atlantic Treaty, 
p. 6.
---------------------------------------------------------------------------
    On occasion Congress has passed legislation requesting or 
requiring provision of information about negotiations. The 
International Development and Food Assistance Act of 1978 
required the Secretary of State to keep the Senate Foreign 
Relations and House Foreign Affairs and the Appropriations 
Committees ``fully and currently informed of any negotiations 
with any foreign government with respect to any cancellation, 
renegotiations, rescheduling, compromise, or other form of debt 
relief * * * with regard to any debt owed to the United States 
by any such foreign government,'' and to submit the texts of 
any agreement that would result in debt relief no less than 30 
days prior to its entry into force.\52\
---------------------------------------------------------------------------
    \52\ Sec. 603, Public Law 95-424, approved October 6, 1978.
---------------------------------------------------------------------------
    At other times legislation has required consultations on 
the negotiations. Since 1981, the International Financial 
Institutions Act has required the administration to consult 
with 16 specified Members of Congress (the chairmen and ranking 
minority members of the authorizing and appropriations 
committees and subcommittees having appropriate jurisdiction) 
prior to, during, and at the close of any international 
negotiations that might involve new U.S. contributions to the 
multilateral development banks.\53\
---------------------------------------------------------------------------
    \53\ Sec. 1201 of International Financial Institutions Act, Public 
Law 95-118, approved October 3, 1977.
---------------------------------------------------------------------------
    The Trade Act of 1974 provided that before the President 
enters into any trade agreement relating to nontariff barriers, 
he ``shall consult'' with the Committee on Ways and Means of 
the House, the Finance Committee of the Senate, and each 
committee or joint committee of Congress having jurisdiction 
over legislation involving subject matters affected by the 
agreement.\54\ The legislation made consultation mandatory by 
providing that any agreement could enter into force only if the 
President gave Congress 90 days prior notification and 
presented an implementing bill which was enacted into law.\55\ 
The Omnibus Trade and Competitiveness Act of 1988 revised 
``fast-track'' or expedited procedures for implementing trade 
legislation and required increased consultation with 
Congress.\56\
---------------------------------------------------------------------------
    \54\ Sec. 102(c) of the Trade Act of 1974, Public Law 93-618, 
approved January 3, 1975.
    \55\ Sec. 102(d) of the Trade Act of 1974.
    \56\ Public Law 100-418, approved August 23, 1988.
---------------------------------------------------------------------------
    Another category of Senate or congressional action might be 
considered ``consultation'': action critical of executive 
branch positions taken during or just after negotiations, with 
clear notice or the implication that the Senate will not 
favorably consider any treaty adopted with the offending 
provisions or effect remaining in the adopted treaty text. At 
least four recent examples can be identified. First, during the 
protracted negotiations that led to adoption of the 1982 United 
Nations Convention on the Law of the Sea, Congress considered 
legislation setting up a U.S. domestic regime for deep seabed 
hard mineral resource development. During Senate floor debate 
on these legislative proposals on December 14, 1979, several 
Senators identified the problems they found with the treaty 
provisions being negotiated and specifically characterized 
their statements as ``instructions'' to the executive branch, 
to be considered as ``advice'' under the Constitution's 
``advice and consent'' clause relating to treaties. Thereafter, 
Congress passed the Deep Seabed Hard Mineral Resources Act, 
which was signed by President Carter in June 1980 (Public Law 
96-283). President Reagan, in 1982, after reviewing the treaty 
texts, decided not to support its adoption. Later, in 1994, an 
agreement was adopted changing many of the objectionable 
convention provisions, and President Clinton transmitted the 
convention and agreement to the Senate (Treaty Doc. 103-39) 
where they remain, pending since 1994.\57\ The Senate thus 
expressed its views, and some in Congress, even many years 
afterward and with treaty amendments adopted, viewed the treaty 
as flawed.
---------------------------------------------------------------------------
    \57\ See U.S. Congress. House. Committee on Foreign Affairs. 
Congress and Foreign Policy--1980. Washington, U.S. Government Printing 
Office, 1981 (Committee Print). Chapter on Congress and Deep Seabed 
Mining Legislation, especially pp. 124-126. See also, last section in 
this chapter, infra.
---------------------------------------------------------------------------
    Senate and congressional actions after negotiation and 
adoption, in 1988, of the Convention on the Regulation of 
Antarctic Mineral Resource Activities show the way 
congressional expressions of disapproval of a just adopted and 
signed treaty led to the negotiation and adoption of a 
completely new treaty. Congress, by joint resolution, stated 
that the signed convention did not ``guarantee the protection'' 
of the Antarctic marine environment and ``could actually 
stimulate * * * commercial exploitation.'' Congress urged the 
executive branch to negotiate protocols or agreements that 
would provide ``comprehensive environmental protection of 
Antarctica'' and close the region to ``commercial minerals 
development * * * for an indefinite period.'' The resolution 
also stated that the President should not send the convention 
to the Senate before the environmental agreements were in 
force.\58\ On October 7, 1992, the Senate approved the Protocol 
on Environmental Protection to the Antarctic Treaty which had 
been signed a year earlier and sent to the Senate.\59\
---------------------------------------------------------------------------
    \58\ U.S. Congress. Senate. Committee on Foreign Relations. 
Legislative Activities Report * * *, 101st Congress, January 3, 1989-
October 28, 1990. Washington, U.S. Government Printing Office, 1991. 
pp. 96-97 (102d Cong., 1st Sess. S. Rept. 102-30)
    \59\ U.S. Congress. Senate. Committee on Foreign Relations. 
Legislative Activities Report * * *, 102d Congress, January 3, 1991-
October 8, 1992. Washington, U.S. Government Printing Office, 1993. pp. 
72-74. (103d Cong., 1st Sess. Senate. Report 103-35)
---------------------------------------------------------------------------
    Another example of the Senate's expression of its views on 
the content of a treaty, both during negotiations and after its 
adoption and U.S. signature, is the Kyoto Protocol to the 
United Nations Framework Convention on Climate Change. Detailed 
information on this protocol, adopted in December 1997 and 
signed by the United States on November 12, 1998, is found in 
Chapter X, infra. In July 1997, before the protocol was 
adopted, the Senate had expressed its views on the treaty text 
in S. Res. 98. The protocol text did not meet the requirements 
set by the Senate resolution.
    A fourth example is the Statute of the International 
Criminal Court (ICC), adopted in Rome in July 1998 and signed 
on behalf of the United States on December 31, 2000. While some 
Senators expressed support for an ICC, others expressed 
concerns over the content of the statute while it was under 
negotiation and afterward. They worried that ICC actions could 
infringe on or diminish the rights of American citizens under 
the first and fourth amendments of the U.S. Constitution. 
During the 106th Congress, the Senate Foreign Relations 
Committee, in response to these concerns, added understandings 
to resolutions of advice and consent to ratification of U.S. 
treaties on mutual legal assistance in criminal matters and to 
extradition treaties. See Chapter X, infra, for further 
discussion.

            inclusion of members of congress on delegations

    On occasion Senators or Representatives have served as 
members of or advisers to the U.S. delegation negotiating a 
treaty. The practice has occurred throughout American history. 
In September 1898, President William McKinley appointed three 
Senators to a commission to negotiate a treaty with Spain. 
President Warren G. Harding appointed Senators Henry Cabot 
Lodge and Oscar Underwood as delegates to the Conference on the 
Limitation of Armaments in 1921 and 1922 which resulted in four 
treaties, and President Hoover appointed two Senators to the 
London Naval Arms Limitation Conference in 1930.
    The practice has increased since the end of the Second 
World War, in part because President Wilson's lack of inclusion 
of any Senators in the American delegation to the Paris Peace 
Conference was considered one of the reasons for the failure of 
the Versailles Treaty. Four of the eight members of the 
official U.S. delegation to the San Francisco Conference 
establishing the United Nations were Members of Congress: 
Senators Tom Connally and Arthur Vandenberg and Representatives 
Sol Bloom and Charles A. Eaton.
    There has been some controversy over active Members of 
Congress serving on such delegations. When President James 
Madison appointed Senator James A. Bayard and Speaker of the 
House Henry Clay to the commission that negotiated the Treaty 
of Ghent in 1814, both resigned from Congress to undertake the 
task. More recently, as in the annual appointment of Senators 
or Members of Congress to be among the U.S. representatives to 
the United Nations General Assembly, Members have participated 
in delegations without resigning, and many observers consider 
it ``now common practice and no longer challenged.'' \60\
---------------------------------------------------------------------------
    \60\ Henkin, Louis. Foreign Affairs and the Constitution. Mineola, 
N.Y. Foundation Press, 1972, p. 132.
---------------------------------------------------------------------------
    One issue has been whether service by a Member of Congress 
on a delegation violated Article I, Section 6 of the 
Constitution. This section prohibits Senators or 
Representatives during their terms from being appointed to a 
civil office if it has been created or its emoluments increased 
during their terms, and prohibits a person holding office to be 
a Member of the Senate or House. Some contend that membership 
on a negotiating delegation constitutes holding an office while 
others contend that because of its temporary nature it is not.
    Another issue concerns the separation of powers. One view 
is that as a member of a negotiating delegation a Senator would 
be subject to the instructions of the President and would face 
a conflict of interest when later required to vote on the 
treaty in the Senate. Others contend that congressional members 
of delegations may insist on their independence of action and 
that in any event upon resuming their legislative duties have a 
right and duty to act independently of the executive branch on 
matters concerning the treaty.
    A compromise solution has been to appoint Members of 
Congress as advisers or observers, rather than as members of 
the delegation. The administration has on numerous occasions 
invited one or more Senators and Members of Congress or 
congressional staff to serve as advisers to negotiations of 
multilateral treaties.\61\ In 1991 and 1992, for example, 
Members of Congress and congressional staff were included as 
advisers and observers in the U.S. delegations to the United 
Nations Conference on Environment and Development and its 
preparatory meetings. In 1992, congressional staff advisers 
were included in the delegations to the World Administrative 
Radio Conference (WARC) of the International Radio Consultative 
Committee (CCIR) of the International Telecommunications Union.
---------------------------------------------------------------------------
    \61\ The names of congressional advisers to international 
conferences before December 15, 1995 may be found in an annual list of 
U.S. accredited delegations that includes private sector 
representatives, published in the Federal Register in accordance with 
Article III(c)(5) of the guidelines (March 23, 1987). The last list was 
published in Federal Register, December 2, 1996, vol. 61, no. 232, pp. 
63892-63916. Publication of this list was discontinued after the 
preparing Office of International Conferences, Department of State, 
ceased receiving funding that enabled the Office to compile and file 
the report with the Federal Register.
---------------------------------------------------------------------------
    In the early 1990s, Congress took initiatives to assure 
congressional observers. The Senate and House each designated 
an observer group for strategic arms reductions talks with the 
Soviet Union that began in 1985 and culminated with the 
Strategic Arms Reduction Treaty (START) approved by the Senate 
on October 1, 1992. In 1991, the Senate established a Senate 
World Climate Convention Observer Group. As of late 2000, at 
least two ongoing groups of Senate observers existed:
          1. Senate National Security Working Group.--This is a 
        bipartisan group of Senators who ``act as official 
        observers to negotiations * * * on the reduction or 
        limitation of nuclear weapons, conventional weapons or 
        weapons of mass destruction; the reduction, limitation, 
        or control of missile defenses; or related export 
        controls.''
          2. Senate Observer Group on U.N. Climate Change 
        Negotiations.--This is a ``bipartisan group of 
        Senators, appointed by the Majority and Minority 
        Leaders'' to monitor ``the status of negotiations on 
        global climate change and report[ing] periodically to 
        the Senate * * *.'' \62\
---------------------------------------------------------------------------
    \62\ Congressional Yellow Book, Winter 2000, pp. 10-11. (Published 
by Leadership Directories, Inc., New York and Washington, D.C.)
---------------------------------------------------------------------------

                        E. Conclusion or Signing

    The conclusion of an international agreement, usually 
indicated by signing or initialing a document or by an exchange 
of notes, is the end of the negotiations process and indicates 
that the negotiators have agreed on the terms of the agreement. 
Like the negotiation, the conclusion or signing is done by the 
President or his representatives and is considered a function 
of the executive branch.
    On occasion, Members of Congress have been among the 
signatories of treaties. Among those signing the U.N. Charter 
for the United States were Senators Tom Connally and Arthur H. 
Vandenberg and Representatives Sol Bloom and Charles A. Eaton. 
Senators Alexander Wiley and John Sparkman signed the Peace 
Treaty with Japan on September 8, 1951, and Senators Arthur 
Vandenberg and Tom Connally and Representative Sol Bloom signed 
the Inter-American Treaty of Reciprocal Assistance on September 
2, 1947.
    Signing an international agreement may indicate a nation's 
consent to be bound if this is its intention. Under U.S. 
practice this would be the case only with executive agreements; 
treaties are required to go through the ratification process to 
be binding. Occasionally, one government may intend signing of 
an international agreement to indicate consent to be bound 
while another signs subject to ratification. This was the case 
with the Agreement on Friendship, Defense, and Cooperation 
between the United States and the Kingdom of Spain, signed July 
2, 1982. The Spanish representative signed the agreement 
subject to ratification by the Cortes Generale, the Spanish 
Parliament, while the U.S. representative signed the document 
as an executive agreement that did not require ratification.

          F. Renegotiation of a Treaty Following Senate Action

    One view is that the Senate, in effect, participates in the 
negotiation of a treaty when the Senate's consideration of a 
treaty leads to a renegotiation of articles in the treaty. At 
the turn of the century, Senator Henry Cabot Lodge took the 
position that the Senate's consideration of a treaty should be 
viewed as a stage in the negotiation, and that a Senate 
amendment to a treaty is a proposition ``offered at a later 
stage of the negotiation by the other part of the American 
treaty-making power in the only manner in which they could then 
be offered. * * *'' He continued:
          The treaty, so called, is therefore still inchoate, a 
        mere project for a treaty, until the consent of the 
        Senate has been given to it * * * the Senate can only 
        present its views to a foreign government by 
        formulating them in the shape of amendments, which the 
        foreign government may reject, or accept, or meet, with 
        counter propositions, but of which it has no more right 
        to complain, than it has to complain of the offer of 
        any germane proposition at any other stage of the 
        negotiation.\63\
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    \63\ Lodge, Henry Cabot. The Treaty-Making Powers of the Senate. In 
A Fighting Frigate and Other Essays and Addresses. New York, Scribner's 
1902, pp. 222-224.

    Renegotiation of a treaty after Senate consideration is not 
frequent, and in the case of multilateral treaties is usually 
considered infeasible because of the number of countries 
involved and the problems in arriving at the original 
agreement. Nevertheless, on occasion treaties, particularly 
bilateral treaties, are renegotiated or negotiated further and 
amended by protocol as a result of Senate consideration.\64\
---------------------------------------------------------------------------
    \64\ See also discussion in Chapter VII, Resubmission of the Treaty 
or Submission of Protocol.
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    To illustrate, after hearings by various congressional 
committees on the Panama Canal treaties signed by President 
Carter and General Torrijos on September 7, 1977, President 
Carter and General Torrijos met on October 14, 1977, and issued 
a statement of understanding clarifying U.S. rights under the 
Neutrality Treaty. A number of congressional delegations, 
including separate ones headed by Senators Robert Byrd, the 
Majority Leader of the Senate, Howard Baker, the Minority 
Leader, and John Sparkman, chairman of the Foreign Relations 
Committee, visited Panama and discussed possible modifications 
with United States and Panamanian officials. The Senate gave 
its advice and consent to ratification of the Neutrality Treaty 
subject to two amendments that incorporated the Carter-Torrijos 
statement of understanding into Articles IV and VI.\65\
---------------------------------------------------------------------------
    \65\ U.S. Congress. Senate. Committee on Foreign Relations. 
Legislative Activities Report, 95th Cong., S. Rept. 96-47, p. 21.
---------------------------------------------------------------------------
    As a second illustration, in 1978 the Senate added a 
reservation before approving a tax convention with the United 
Kingdom. Another reservation had been withdrawn after the 
Treasury Department assured the sponsor that a protocol would 
be negotiated to take care of the issue.\66\ In 1979 a protocol 
to the tax convention dealing with the concerns in both 
reservations was submitted to and approved by the Senate.\67\
---------------------------------------------------------------------------
    \66\ Ibid., pp. 4-6.
    \67\ U.S. Congress. Senate. Committee on Foreign Relations. 
Legislative Activities Report, 96th Cong., S. Rept. 97-29, pp. 7-10.
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     G. Interim Between Signing and Entry Into Force; Provisional 
                              Application

    Although it has been signed, a bilateral treaty does not 
enter into force until the parties ratify it and exchange 
ratifications. A multilateral treaty does not enter into force 
until a specified number of parties deposit their 
ratifications. Between the signing and entry into force, there 
is an interim period in which governments are not yet legally 
bound, but they have tentatively agreed to a future course of 
action. In the United States, this includes those periods (1) 
from signing to submission to the Senate, (2) during Senate 
consideration, (3) from Senate approval to Presidential signing 
of the ratification, and (4) from the ratification to the 
exchange or deposit of ratifications and entry into force.
    During this interim period the treaty is not yet in effect, 
but under international law nations have an obligation not to 
do anything that would defeat the purpose of the treaty. The 
Vienna Convention states in Article 18:
          A state is obliged to refrain from acts which would 
        defeat the object and purpose of an international 
        agreement when: (a) it has signed the agreement or has 
        exchanged instruments constituting the agreement 
        subject to ratification, acceptance or approval, until 
        it shall have made its intention clear not to become a 
        party to the agreement; or (b) it has expressed its 
        consent to be bound by the agreement, pending the entry 
        into force of the agreement and provided that such 
        entry into force is not unduly delayed.

    Beyond this there is the question of taking measures during 
the interim period to begin to carry out the treaty, such as 
establishing a preparatory commission. Sometimes treaties 
themselves provide for their provisional application. The 
Vienna Convention states in Article 25:
          1. A treaty or a part of a treaty is applied 
        provisionally pending its entry into force if:
                  (a) the treaty itself so provides; or
                  (b) the negotiating States have in some other 
                manner so agreed.
          2. Unless the treaty otherwise provides or the 
        negotiating States have otherwise agreed, the 
        provisional application of a treaty or a part of a 
        treaty with respect to a State shall be terminated if 
        that State notifies the other States between which the 
        treaty is being applied provisionally of its intention 
        not to become a party to the treaty.

    In the United States, provisional application of a treaty 
may be subject to question especially if it gives temporary 
effect to a treaty prior to its receiving the advice and 
consent of the Senate. An agreement to apply a treaty 
provisionally is in essence an executive agreement to undertake 
temporarily what the treaty may call for permanently. It ``must 
normally rest on the President's own constitutional 
authority.'' \68\ According to the Department of State, the 
President may also make a unilateral policy decision, without 
reaching agreement with the other parties to apply the treaty 
provisionally, ``so long as the obligations undertaken are all 
within the competence of the President under U.S. law.'' \69\ 
The primary factor for determining the appropriateness of 
provisional application, in the State Department view, 
``relates to the immediate need to settle quickly matters in 
the interest of the United States which are within the 
President's domestic law competence.'' \70\
---------------------------------------------------------------------------
    \68\ Rest. 3d, Sec. 312.
    \69\ Administration's Responses to Additional Questions Submitted 
for the Record by Senator Javits. In U.S. Congress. Senate. S. Exec. 
Rept. 96-49. Report to Accompany Execs. F, G, and H, 96-1. Washington, 
U.S. Government Printing Office, 1980. pp. 26-27. [Hearing on treaties 
is included in this document.]
    \70\ Ibid.
---------------------------------------------------------------------------
    An example of a treaty pending in the Senate that has been 
provisionally applied by executive agreement is the maritime 
boundary agreement between the United States and Cuba, signed 
December 16, 1977. Originally, an executive agreement, by 
exchange of notes on April 27, 1977, had established a modus 
vivendi on a provisional maritime boundary to serve during that 
year while negotiations were underway. The treaty signed on 
December 16, 1977, contained a provision that the parties agree 
to apply the terms of the agreement ``provisionally'' for a 
period of 2 years from January 1, 1978. According to the 
Department of State, ``this agreement constituted an executive 
agreement contained within the text of the treaty.'' \71\ The 
treaty was transmitted to the Senate on January 23, 1979, and 
debated in the Senate, but final action was not taken. The 
treaty is still pending in the committee. The provisional 
application was subsequently extended for additional periods, 
most recently by an exchange of notes of December 30, 1997 and 
March 30, 1998.\72\
---------------------------------------------------------------------------
    \71\ Ibid.
    \72\ Agreement effective January 1, 1998, for 2 years through 
January 1, 2000. The text was transmitted to Congress under the 
provisions of 1 U.S.C. 112b (the Case-Zablocki Act), and can be found 
online in TIARA, a subscription database of Oceana Publications, 
``http://www.oceanalaw.com.'' As of December 15, 2000, information on a 
further extension was not transmitted to Congress.
---------------------------------------------------------------------------
    The Senate Foreign Relations Committee raised questions 
concerning the provisional application in its hearings on the 
treaty. The Department of State said that in its judgment the 
President had authority to enter into provisional maritime 
boundary agreements, and cited as precedents a provisional 
boundary line between Alaska and Canada on October 20, 1899, 
and on the Stacking River on February 20, 1878.\73\
---------------------------------------------------------------------------
    \73\ S. Exec. Rept. 96-49, pp. 26-27.
---------------------------------------------------------------------------
    If a treaty has been approved by the Senate but not yet 
ratified by the President, or if there has been consultation 
with the Senate, the provisional application of a treaty may 
not raise objections. In one instance the United States 
submitted a declaration of provisional application of the 1962 
International Coffee Agreement after the Senate gave its advice 
and consent but before the implementing legislation had been 
passed by Congress. The declaration indicated that the United 
States would not assume any obligations for which such 
legislation was necessary.\74\
---------------------------------------------------------------------------
    \74\ 14 Whiteman, p. 92.
---------------------------------------------------------------------------
    In another case the executive branch submitted a 
declaration of provisional application of the 1971 
International Wheat Agreement after consultation and consent by 
the Senate Foreign Relations Committee, and for the 1975 and 
1976 protocols before the Foreign Relations Committee completed 
action.
    The observance in practice of two agreements between the 
United States and the Soviet Union on strategic arms limitation 
that had either not been ratified or had expired has also 
raised the question of application of a treaty that was not in 
force. The SALT I Interim Agreement on Certain Measures with 
Respect to the Limitation of Strategic Offensive Arms, was 
authorized by Congress and entered into force on October 3, 
1973, for 5 years.
    The SALT II Treaty on the Limitation of Strategic Offensive 
Arms was signed by the United States on June 18, 1979, but 
Senate action on it was indefinitely postponed after the Soviet 
invasion of Afghanistan. The administration adopted the policy, 
as expressed by President Reagan on May 31, 1982, that ``As for 
existing strategic arms agreements, we will refrain from 
actions which undercut them so long as the Soviet Union shows 
equal restraint.'' The Senate Foreign Relations Committee 
reported a resolution (S.J. Res. 212) on July 12, 1982, which 
resolved that to provide a basis for progress during new 
negotiations, ``the United States shall continue to refrain 
from actions which would undercut the SALT I and SALT II 
agreements, provided the Soviet Union shows equal restraint.'' 
The committee reported that its purpose was to give the 
President's statement the full force and effect of law. The 
Subcommittee on Separation of Powers of the Senate Judiciary 
Committee held hearings on the resolution and urged its 
rejection on grounds, among others, that,
          In attempting to bind the United States to treaty 
        obligations without securing the approval of two-thirds 
        of the Senate, the resolution improperly limits the 
        President's negotiating powers in the area or foreign 
        affairs; it improperly attempts to transform a treaty 
        into some other form of international obligation; and 
        it improperly ignores the exclusive advice and consent 
        function of the Senate by making the obligation 
        dependent upon approval by the House of 
        Representatives.\75\
---------------------------------------------------------------------------
    \75\ U.S. Congress. Senate. Committee on the Judiciary. Joint 
Resolution with Respect to Nuclear Arms Reductions. Report on S.J. Res. 
212. Committee Print. September 1982, 97th Cong., 2d Sess., p. 9.

On October 12, 2000, the Senate, in passing S. Res. 267, 
returned the SALT II Treaty (Treaty Doc. 96-25) to the 
President, as part of a package of 17 treaties. This action had 
been recommended by the Senate Foreign Relations Committee.
    Another recent example of the use of provisional 
application is in the 1994 Agreement Relating to Implementation 
of Part XI of the 1982 United Nations Convention on the Law of 
the Sea. The agreement was adopted between the time the 1982 
convention was adopted and the time it entered into force 
(November 16, 1994). The agreement was applied provisionally 
between November 16, 1994, and July 28, 1996, when it entered 
into force. Thereafter, States that had not ratified the 
convention/agreement package by July 28, 1996, could continue 
membership in the International Seabed Authority, the 
international organization set up by the convention/agreement 
package until November 16, 1998. Negotiators, in 1994, 
considered this 4-year interval to be a time period sufficient 
to allow non-states parties to adhere to the package. On 
November 16, 1998, however, the United States and seven other 
countries that enjoyed provisional membership in the 
International Seabed Authority but had not yet ratified or 
adhered to the convention/agreement package lost that 
membership, becoming observer states.
    If the provisional application of a treaty became 
contentious, it would be up to the President or the Senate, 
depending on where the treaty resided at the time, to make 
clear either the intention to proceed with the ratification 
process and become a party, or the intention not to become a 
party.


                VI. SENATE CONSIDERATION OF TREATIES \1\
---------------------------------------------------------------------------

    \1\ Prepared by Stanley Bach, Senior Specialist in the Legislative 
Process and David M. Ackerman, Legislative Attorney. For additional 
information see: Riddick, Floyd M. and Alan S. Frumin, Riddick's Senate 
Procedure, Sen. Doc. 101-28, 1992, especially pp. 832-843 (``Executive 
Business and Executive Sessions'') and 1294-1310 (``Treaties'').
---------------------------------------------------------------------------
                              ----------                              

    The Constitution, in Article II, Section 2, Clause 2, 
provides that 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.'' It is the 
President who negotiates and ultimately ratifies treaties for 
the United States, but only if the Senate in the intervening 
period gives its advice and consent. This chapter concerns the 
practices and procedures that the Senate follows after the 
President formally submits a treaty for the Senate's advice and 
consent.
    Whatever the authors of the Constitution may have meant by 
the phrase ``advice and consent'' with regard to treaties, it 
is generally used today to describe the process of Senate 
approval following Presidential transmission to the Senate of a 
fully negotiated and signed document. The ``Founding Fathers'' 
undoubtedly envisioned in their original conception of 
``treaty-making'' that the Senate would fulfill the role of 
collective advisor to the President in the initiation and 
conduct of negotiations. For reasons outlined earlier in this 
study, however, that type of advice now is rarely sought from 
the Senate. Consultations are not uncommon with respect to 
treaties on matters of major national importance, such as 
nuclear arms control, and Members of the Senate (and the House 
as well) frequently are appointed as advisors or observers to 
U.S. delegations. In addition, pursuant to the Case-Zablocki 
Act \2\ and the consultation procedures to which the State 
Department agreed in 1978,\3\ the Senate and the executive 
branch have taken steps toward increased notification to and 
consultation with the Senate with respect to executive branch 
negotiation and execution of international agreements and 
treaties.\4\ What Presidents generally seek from Senators, 
however, is not advice in advance but consent after the fact--
after negotiations have been completed. Most treaties engage 
the Senate only after their formal transmission by the 
President for approval. Nevertheless, the Senate often provides 
a measure of after-the-fact ``advice'' along with its 
``consent.''
---------------------------------------------------------------------------
    \2\ Public Law 92-403, as amended. 1 U.S.C. 112b. See Appendix 2.
    \3\ See S. Res. 536 and S. Rept. 95-1171, 95th Cong.
    \4\ See discussion in Chapter X.
---------------------------------------------------------------------------
    Contrary to past characterizations of the Senate as the 
``graveyard of treaties,'' the overwhelming majority of 
treaties receive favorable Senate action within a reasonable 
period of time. Few treaties languish indefinitely or are 
returned to the President without approval, and even fewer are 
defeated outright by vote of the Senate. Likewise, most 
treaties survive the process of advice and consent without 
material change, although the Senate in recent years has 
expanded its use of conditions that are attached to its 
resolutions of ratification. In most cases, the process of 
Senate consideration is expedited, without using the full 
procedures available under Senate rules, and Senate approval 
frequently is unanimous. However, the most controversial and 
important treaties can receive extended consideration, in 
committee and on the Senate floor, during which numerous 
amendments and conditions may be proposed.

                     A. Senate Receipt and Referral

    All treaties are transmitted to the Senate in the 
President's name, a procedure that typically first involves 
formal submission of the agreement to the President by the 
Secretary of State and may include a separate review of the 
agreement by the White House staff. Therefore, the time period 
between signature of a treaty and its actual transmission to 
the Senate for advice and consent may be considerable, as much 
for bureaucratic as for substantive or political reasons. But 
the President controls the timing of a treaty's submission. 
Occasionally an administration may decide not to submit a 
treaty that it or a previous administration had signed.
    The Senate receives a Presidential message consisting of 
the official title and text of the treaty (the original in the 
case of a bilateral treaty, a certified copy in the case of a 
multilateral one) and a letter of transmittal, signed by the 
President, requesting Senate advice and consent and 
incorporating the earlier Letter of Submittal from the 
Secretary of State to the President. The Secretary's letter 
usually contains a detailed description and analysis of the 
treaty. The Presidential message also may contain protocols, 
annexes, or other documents that the President submits to the 
Senate to be considered as integral parts of the proposed 
treaty (as distinguished from documents submitted for 
information purposes only). They are referred to collectively 
as the treaty and its official papers. These documents, which 
have been submitted to the Senate for advice and consent to 
ratification as integral parts of a treaty, are subject to a 
single vote of advice and consent. For the same reason, only a 
treaty and its official papers, when formally before the 
Senate, are subject to amendment.
    If the executive branch concludes a protocol amending a 
treaty that is pending in the Senate, the protocol is submitted 
to the Senate as a new treaty. The Senate may decide, however, 
to consider the treaty and protocol together and approve them 
by means of a single resolution of ratification.\5\
---------------------------------------------------------------------------
    \5\ See Appendix 7, Simultaneous Consideration of Treaties and 
Amending Protocols: Selected Precedents.
---------------------------------------------------------------------------

                            senate rule xxx

    Senate Rule XXX governs the process of treaty consideration 
in the Senate. As revised on February 27, 1986, Rule XXX states 
\6\:
---------------------------------------------------------------------------
    \6\ The Senate's standing rules were revised and renumbered in 
1980, which can lead to difficulties when references are made to 
earlier publications. In addition, S. Res. 28, adopted on February 27, 
1986, made a significant change in Rule XXX. Previously, the rule 
provided for a first stage of floor consideration, during which the 
Senate would meet ``as in Committee of the Whole'' and act on any 
proposed amendments to each article of the treaty in sequence. Although 
the full procedures of Rule XXX rarely were invoked, they were followed 
during Senate consideration of the Versailles Peace Treaty following 
World War I, the Panama Canal Treaties in 1978, and the Genocide 
Convention in 1986. Citations to Senate rules are to the publication 
Standing Rules of the Senate, 106th Cong., 2d Sess., November 19, 1999, 
Document 106-15.
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               executive session--proceedings on treaties

          1. (a) When a treaty shall be laid before the Senate 
        for ratification, it shall be read a first time; and no 
        motion in respect to it shall be in order, except to 
        refer it to a committee, to print it in confidence for 
        the use of the Senate, or to remove the injunction of 
        secrecy.
          (b) When a treaty is reported from a committee with 
        or without amendment, it shall, unless the Senate 
        unanimously otherwise directs, lie over one day for 
        consideration; after which it may be read a second 
        time, after which amendments may be proposed. At any 
        stage of such proceedings the Senate may remove the 
        injunction of secrecy from the treaty.
          (c) The decisions thus made shall be reduced to the 
        form of a resolution of ratification, with or without 
        amendments, as the case may be, which shall be proposed 
        on a subsequent day, unless, by unanimous consent, the 
        Senate determines otherwise, at which stage no 
        amendment to the treaty shall be received unless by 
        unanimous consent; but the resolution of ratification 
        when pending shall be open to amendment in the form of 
        reservations, declarations, statements, or 
        understandings.
          (d) On the final question to advise and consent to 
        the ratification in the form agreed to, the concurrence 
        of two-thirds of the Senators present shall be 
        necessary to determine it in the affirmative; but all 
        other motions and questions upon a treaty shall be 
        decided by a majority vote, except a motion to postpone 
        indefinitely, which shall be decided by a vote of two-
        thirds.
          2. Treaties transmitted by the President to the 
        Senate for ratification shall be resumed at the second 
        or any subsequent session of the same Congress at the 
        stage in which they were left at the final adjournment 
        of the session at which they were transmitted; but all 
        proceedings on treaties shall terminate with the 
        Congress, and they shall be resumed at the commencement 
        of the next Congress as if no proceedings had 
        previously been had thereon.

             action on receipt of treaty from the president

    When a treaty message is received from the President, it is 
transmitted by the Senate Parliamentarian to the Executive 
Clerk, who is responsible for treaties and nominations. The 
Executive Clerk assigns it a message number and prepares a 
procedural request for unanimous consent to remove the 
injunction of secrecy referred to in Senate Rules XXIX and 
XXX.\7\ (This injunction originated during the days when Senate 
executive sessions were conducted in secret. Treaties today are 
normally made public when signed or even earlier.) Ordinarily, 
the Senate routinely agrees to the Majority Leader's request to 
remove the injunction of secrecy. If any Senator should object 
to the request, the full Senate can agree to a resolution 
removing the injunction of secrecy, as provided in Senate Rule 
XXIX. On at least one recent occasion, such an objection was 
used to throw a temporary procedural roadblock in the way of 
Senate consideration of a tax treaty.\8\
---------------------------------------------------------------------------
    \7\ Paragraph 3 of Rule XXIX provides that ``All confidential 
communications made by the President of the United States to the Senate 
shall be by the Senators and the officers of the Senate kept secret; 
and all treaties which may be laid before the Senate, and all remarks, 
votes, and proceedings thereon shall also be kept secret, until the 
Senate shall, by their resolution, take off the injunction of 
secrecy.''
    \8\ On July 21, 1980, Senator Mike Gravel of Alaska objected to a 
unanimous consent request to remove the injunction of secrecy from a 
revised income tax convention with Israel.
---------------------------------------------------------------------------
    Since Senate consideration of treaties is a matter of 
executive business, the Senate must be in executive session \9\ 
in order to remove the injunction of secrecy or take any other 
floor action with respect to a treaty. The motion to go into 
executive session is non-amendable and non-debatable but is 
subject to a request for a roll call vote. Normally, however, 
the Senate moves between executive and legislative session by 
unanimous consent.
---------------------------------------------------------------------------
    \9\ The Senate meets in legislative session to transact its 
legislative business. The consideration of treaties and nominations, on 
the other hand, constitutes the Senate's executive business and takes 
place in executive session. By unanimous consent, the Senate sometimes 
transacts some executive business without first resolving into 
executive session. On January 3, 2001, the first day of the 107th 
Congress, for example, the Senate agreed to a unanimous consent request 
that, ``for the duration of the 107th Congress, it shall be in order to 
refer [to committee] treaties and nominations on the day when they are 
received from the President, even when the Senate has no executive 
session that day.'' Congressional Record, January 3, 2001, p. S8 (daily 
ed.).
---------------------------------------------------------------------------
    The request of the Majority Leader is typically in the 
following form:
          I ask unanimous consent that the injunction of 
        secrecy be removed from the Third Protocol to the 1975 
        Tax Convention with the United Kingdom of Great Britain 
        and Northern Ireland, as amended, signed at London on 
        March 15, 1979 (Executive Q, 96th Cong., 1st Sess.), 
        transmitted to the Senate by the President of the 
        United States on April 12, 1979.
          I ask that the treaty be considered as having been 
        read the first time, that it be referred to the 
        Committee on Foreign Relations and ordered to be 
        printed, and that the President's message be printed in 
        the Record.
          The PRESIDING OFFICER. Without objection, it is so 
        ordered.\10\
---------------------------------------------------------------------------
    \10\ Riddick, Floyd M. and Alan S. Frumin, Riddick's Senate 
Procedure. Sen. Doc. 101-28, 1992, p. 1300.

    Following the first reading and removal of the injunction 
of secrecy at the initiative of the Majority Leader, the 
Presiding Officer refers the treaty to the Committee on Foreign 
Relations, in accordance with Senate Rule XXV on the 
jurisdiction of standing committees. At this stage, the text of 
the President's message, the treaty, all documents submitted as 
integral parts of the treaty, and any other documents submitted 
for the information of the Senate, are printed by the U.S. 
Government Printing Office and made available online to the 
public.\11\
---------------------------------------------------------------------------
    \11\ Information may be found online at http://www.access.gpo.gov/
congress/doccat.html.
---------------------------------------------------------------------------
    Treaties are referred to committee after being read once, 
whereas bills and joint resolutions must, in principle, go 
through a second reading (a subsequent procedural step) before 
they are eligible for referral.
    Thereafter, each treaty is referred to by its Treaty 
Document Number, which consists of the number of the Congress 
in which it was transmitted, followed by a number representing 
the order in which treaties were submitted in that Congress, 
for example, Treaty Doc. 97-1 or 106-13. Before the 97th 
Congress in 1981, a letter designation was used rather than 
consecutive numbering (for example, Executive Q in the example 
quoted above). Treaties that were transmitted before that time 
and that, for one reason or another, have not been acted upon 
by the Senate retain their original designation. The 
International Labor Organization Convention No. 87 Concerning 
Freedom of Association and Protection of the Right to Organize, 
for example, which was originally transmitted by President 
Truman in 1949, is designated Ex. S, 81-1, for Eighty-first 
Congress, First Session.
    Since its creation in 1816, the Foreign Relations Committee 
has had exclusive jurisdiction over treaties, as presently 
recognized in Rule XXV.\12\ From time to time other Senate 
committees have sought referral of particular treaties, but 
without success. There have been various occasions, however, on 
which other committees have conducted hearings on the issues 
raised by particular treaties even though those committees did 
not have authority to make formal recommendations to the Senate 
regarding the treaties.
---------------------------------------------------------------------------
    \12\ Senate Rule XXV(l)(j)(1)17 states the Committee on Foreign 
Relations has jurisdiction over ``Treaties and executive agreements, 
except reciprocal trade agreements.'' Rule XXV(l)(i)7 states the 
Committee on Finance has jurisdiction over ``Reciprocal trade 
agreements.''
---------------------------------------------------------------------------
    In the case of the Treaty Between the United States of 
America and the Union of Soviet Socialist Republics on the 
Limitation of Strategic Offensive Arms and the Protocol 
Thereto,\13\ commonly known as SALT II, for example, the 
Committee on Armed Services held extensive hearings on the 
military implications of the treaty,\14\ similar to the 
parallel hearings it held in 1963 on the Nuclear Test Ban 
Treaty, in 1969 on the Nuclear Non-Proliferation Treaty, and in 
1978 on the Panama Canal Treaties. The Armed Services Committee 
even took a vote on the SALT II Treaty and prepared an 
extensive report in opposition to Senate approval.\15\ In the 
cases of the Treaty on the Elimination of Intermediate-Range 
and Shorter-Range Missiles (INF), the Conventional Armed Forces 
in Europe Treaty (CFE), the Treaty on the Reduction and 
Limitation of Strategic Offensive Arms (START), and the Open 
Skies Treaty, the Armed Services and Intelligence Committees 
reported their findings to the Senate Foreign Relations 
Committee during that committee's consideration of the 
treaties, and the other committees' recommendations were 
included in the reports of the Committee on Foreign 
Relations.\16\ More recently, the Armed Services Committee 
received testimony in 1995 on the national security 
implications of U.S. ratification of the START II Treaty before 
the Foreign Relations Committee reported that treaty to the 
Senate. Similarly, the Armed Services Committee received 
testimony on several occasions in 1997 and 1998 on North 
Atlantic Treaty Organization (NATO) expansion, both before and 
after the Foreign Relations Committee completed action on a 
treaty on that subject.\17\
---------------------------------------------------------------------------
    \13\ Ex. Y, 96-1, 96th Cong., 1st Sess. (June 25, 1979), ordered 
returned to the President without the Senate's approval by S. Res. 267, 
106th Cong., 2d Sess. (2000).
    \14\ Military Implications of the Treaty of the Limitation of 
Strategic Offensive Arms and Protocol Thereto (SALT II Treaty). 
Hearings before the Committee on Armed Services, U.S. Senate. 96th 
Cong., 1st Sess., Four Parts, July-October 1979.
    \15\ U.S. Congress. Senate Committee on Armed Services. Report No. 
96-1054, Military Implications of the Proposed SALT II Treaty relating 
to the National Defense. Report of the Hearings on the Military Aspects 
of the Proposed SALT II Treaty (Ex. Y, 96-1), based on hearings held 
before the committee in accordance with its responsibilities under Rule 
XXV(c) of the Standing Rules of the Senate, together with Additional 
Views. December 4, 1980.
    \16\ U.S. Congress. Senate. Committee on Foreign Relations. INF 
Treaty. Exec. Rept. 100-15, pp. 74-79. CFE Treaty. Exec. Rept. 102-22, 
pp. 124-137. START Treaty. Exec. Rept. 102-53, pp. 73-75. Treaty on 
Open Skies. Exec. Rept. 103-5, pp. 9-10, 115, 140.
    \17\ U.S. Congress. Senate. Committee on Armed Services. 
Legislative Calendar, 104th Cong., S. Prt. 104-74, p. 66; U.S. 
Congress. Senate. Committee on Armed Services. Legislative Calendar, 
105th Cong., S. Prt. 105-92, pp. 67-68.
---------------------------------------------------------------------------
    Other Senate and House committees have occasionally 
prepared reports on treaties of particular concern to them. 
Sometimes the Foreign Relations Committee has invited members 
of other committees to participate in its hearings relating to 
treaties, such as the SALT II Treaty, of obvious interest to 
such committees.

              B. Foreign Relations Committee Consideration

    Once referred to the Foreign Relations Committee, each 
treaty is placed on the committee calendar, in a separate 
treaty section and arranged chronologically in order of 
referral date. Committee Rule 9 governs the committee's 
consideration of treaties. It states:
          (a) The Committee is the only committee of the Senate 
        with jurisdiction to review and report to the Senate on 
        treaties submitted by the President for Senate advice 
        and consent. Because the House of Representatives has 
        no role in the approval of treaties, the Committee is 
        therefore the only congressional committee with 
        responsibility for treaties.
          (b) Once submitted by the President for advice and 
        consent, each treaty is referred to the Committee and 
        remains on its calendar from Congress to Congress until 
        the Committee takes action to report it to the Senate 
        or recommend its return to the President, or until the 
        Committee is discharged of the treaty by the Senate.
          (c) In accordance with Senate Rule XXX.2, treaties 
        which have been reported to the Senate but not acted on 
        before the end of a Congress ``shall be resumed at the 
        commencement of the next Congress as if no proceedings 
        had previously been had thereon.''
          (d) Insofar as possible, the Committee should conduct 
        a public hearing on each treaty as soon as possible 
        after its submission by the President. Except in 
        extraordinary circumstances, treaties reported to the 
        Senate shall be accompanied by a written report.\18\
---------------------------------------------------------------------------
    \18\ U.S. Congress. Senate. Committee on Rules and Administration. 
Authority and Rules of Senate Committees, 1999-2000. Sen. Doc. 106-6. 
106th Cong., 1st Sess., 1999; p. 99.

    The decision to hold hearings or take other action on 
particular treaties ordinarily is made by the committee 
chairman, in consultation with the ranking minority member. The 
chairman's decisions in this regard are influenced to an 
important degree by the preferences of the executive branch. At 
the beginning of each Congress, the committee routinely 
requests from the Department of State a written ranking of its 
treaty priorities, which is normally conveyed in several 
general groupings. Although such requests have no formal status 
or procedural consequences, the committee usually gives great 
weight to them in planning its schedule. Such decisions also 
are affected by the overall priorities and time constraints of 
the chairman and other committee members.
    Committee hearings on treaties principally involve 
executive branch, usually State Department, witnesses. Since 
most treaties are noncontroversial, the objective is to develop 
a record explaining the purposes, provisions, and significance 
of the agreement. When a treaty is controversial or 
complicated, however, the hearing process can be extensive, 
involving many witnesses and days of questioning and 
deliberations. Extensive hearings in recent years have included 
those in 1977-1978 on the Panama Canal Treaties, in 1979 on the 
SALT II Treaty, in 1988 on the INF Treaty, and in 1991-1992 on 
the START Treaty. More recently, the committee held hearings on 
the Chemical Weapons Convention on a total of 14 days.
    The chairman of the Foreign Relations Committee generally 
decides on the timing for committee markup of treaties, which 
normally comes soon after the completion of hearings. The 
predominant tendency is for the committee to recommend Senate 
advice and consent without numerous conditions, and the 
committee usually votes on treaties without extended debate or 
discussion. In the case of a controversial treaty, however, or 
when it is clear that particular problems must be resolved to 
assure Senate approval, the chairman may initiate proposals for 
conditions or other specific language to address those 
problems. The types of conditions available are discussed in 
the following section. Whether or not the committee does decide 
to recommend Senate conditions, when it reports out the treaty 
the committee also proposes a ``resolution of ratification,'' 
usually in the following form:
          Resolved, (two-thirds of the Senators present 
        concurring, therein), That the Senate advise and 
        consent to the ratification of [or accession to] the 
        [official treaty title].

    Generally, treaties are considered within a year of their 
transmission, after allowing sufficient time for public notice 
and comment. From time to time, however, the press of other 
business has resulted in backlogs of unreported treaties. 
Particular treaties may languish on the committee's calendar, 
not necessarily because of serious opposition but for want of 
interested advocates with the time to do justice to them. In 
other cases, treaties have been shepherded through with 
dispatch, owing to their importance and timeliness or to the 
interest of the chairman or particular members of the 
committee. Groups of similar treaties frequently have been 
considered en bloc, both in committee and on the Senate floor, 
thereby facilitating comparison and reducing the demands on 
Senators' time.
    If the chairman does expect opposition or difficulty in 
gaining Senate approval of a particular treaty, his decision on 
the nature and timing of committee action becomes more 
problematic. Furthermore, unless the President is clearly in 
support of ratification (and a successor President may not 
always support all treaties submitted prior to his taking 
office), Senate action may be pointless, since the President 
can simply decline to ratify a treaty even after Senate 
approval.
    All treaties remain on the committee's calendar until the 
committee takes action on them. In accordance with Senate Rule 
XXX, paragraph 2, all treaties reported by the committee that 
are not thereafter disposed of by the Senate (either by 
favorable advice and consent or by formal return to the 
President) rest on the Executive Calendar and then, at the end 
of the Congress, automatically are returned, or re-referred, to 
the committee. The committee must then report those treaties 
again during a subsequent Congress if they are to be considered 
on the Senate floor.
    As a consequence, the calendar of the Foreign Relations 
Committee contains some treaties that were transmitted years 
earlier and never finally disposed of by the Senate. The 
Genocide Convention, for instance, remained on the committee 
calendar from 1949 until 1986, when the Senate finally gave its 
advice and consent to ratification; by that time the committee 
had reported the convention favorably five times. In 1996 the 
committee reported the Chemical Weapons Convention that had 
been referred to it in 1993. The Senate debated but did not 
take final action on the convention in 1996, so it was re-
referred to the committee at the end of the 104th Congress. 
During the following year, the committee held additional 
hearings on the convention. The Senate then considered it 
again, after discharging the committee from its further 
consideration, and ultimately consented to its ratification.
    The workload of the committee and the Senate regarding 
treaties varies from Congress to Congress. In the past four 
Congresses, for example, the number of treaties to which the 
Senate gave its advice and consent grew from 27 in the 103d 
Congress (1993-1994) to 37 in the 104th (1995-1996) to 52 in 
each of the 105th (1997-1998) and 106th (1999-2000) 
Congresses.\19\
---------------------------------------------------------------------------
    \19\ See Appendix 8 for a list of all treaties to which the Senate 
gave its advice and consent to ratification during the 100th-106th 
Congresses. During this period, the chairmen of the committee have been 
Claiborne Pell of Rhode Island (100th-103d Congresses) and Jesse Helms 
of North Carolina (104th-106th Congresses).
---------------------------------------------------------------------------

                        C. Conditional Approval

    The Foreign Relations Committee may recommend that the 
Senate approve treaties conditionally, granting its advice and 
consent only subject to certain stipulations that the President 
must accept before proceeding to ratification.\20\ The 
President, of course, also may propose, at the time of a 
treaty's transmission to the Senate or during the Senate's 
consideration of it, that the Senate attach certain conditions 
or stipulations in the course of giving its advice and consent.
---------------------------------------------------------------------------
    \20\ See American Law Institute, Restatement (Third) of the Foreign 
Relations Law of the United States. American Law Institute Publishers, 
1987, Vol. I, Sec. 314, pp. 186-189. During Senate consideration of 
SALT II, the Foreign Relations Committee gave considerable attention to 
the nature and legal effect of Senate conditions and discussed the 
matter extensively in its report on the treaty. See S. Exec. Rept. 96-
14, 96th Cong., 1st Sess. (Nov. 19, 1979). An earlier discussion of 
these issues with several useful illustrations appears in U.S. 
Congress. Senate. The Role of the Senate in Treaty Ratification, A 
Staff Memorandum to the Committee on Foreign Relations. Committee 
Print. 95th Cong., 1st Sess., November 1977, pp. 3-13.
---------------------------------------------------------------------------

                          types of conditions

    Conditions traditionally have been categorized as 
amendments, reservations, understandings, declarations, and 
provisos. Whatever they are called, however, conditions 
generally are binding on the President, and the President 
cannot proceed to ratify a treaty without giving them effect. 
Because not all conditions necessarily affect the substance of 
a treaty, not all are necessarily communicated to the other 
party or parties to an agreement. But whatever name the Senate 
gives to a condition, if the President considers that it alters 
an international obligation under a treaty, he is expected to 
transmit it to the other party or parties. The result may be 
further negotiations or even abandonment of the treaty.
    Both amendments and reservations are proposed revisions in 
the obligations undertaken by the United States pursuant to a 
treaty. Amendments are proposed changes in the actual text of 
the treaty; reservations are specific qualifications or 
stipulations that modify U.S. obligations without necessarily 
changing treaty language.\21\ Both types of revisions amount, 
therefore, to Senate counter offers that alter the original 
deal agreed to by the United States and the other country or 
countries involved. In the case of treaties that represent 
significant trade-offs and compromises, such conditions 
normally require the re-opening of negotiations, assuming the 
other parties are willing to do so. In less delicate 
circumstances, or on secondary issues, such conditions may be 
accepted without extended delay, although that prospect is not 
always easy to evaluate during Senate committee or floor 
deliberations.
---------------------------------------------------------------------------
    \21\ The Vienna Convention on the Law of Treaties, which the U.S. 
has not ratified but which is viewed as codifying customary 
international law in most respects, defines ``reservation'' as follows:
    ``[R]eservation'' means a unilateral statement, however phrased or 
named, made by a State, when signing, ratifying, accepting, approving, 
or acceding to a treaty, whereby it purports to exclude or to modify 
the legal effect of certain provisions of the treaty in their 
application to that State. Vienna Convention, Article 2.
---------------------------------------------------------------------------
    In the case of large, multilateral agreements, amendments 
seldom are realistic; the difficulties in reconvening 
negotiations mean that significant amendments are normally 
taken by the other parties as tantamount to rejection of the 
treaty itself. Reservations on important provisions of the 
treaty can have the same result.
    The Foreign Relations Committee has repeatedly expressed 
concern with the inclusion of a provision in some multilateral 
treaties stating that no reservations may be made. In the 
committee's view, such a provision has the effect of preventing 
the Senate from exercising its constitutional duty to give 
advice and consent to a treaty, and the committee has asserted 
that its approval of a treaty containing such a provision 
should not be construed as a precedent.\22\
---------------------------------------------------------------------------
    \22\ See, for example, the United Nations Framework Convention on 
Climate Change, Exec. Rept. 102-55 to accompany Treaty Doc. 102-38. 
October 1, 1992, p. 15; and the Protocol on Environmental Protection to 
the Antarctic Treaty, Exec. Rept. 102-54, to accompany Treaty Doc. 102-
22. September 22, 1992. More recently, the Senate has begun to 
incorporate such statements in its resolutions of ratification as well 
as in its reports on treaties containing ``no-reservations'' clauses. 
See, for example, the Convention on Protection of Children and 
Cooperation in Respect of Intercountry Adoption, Exec. Rept. 106-14 to 
accompany Treaty Doc. 105-51. April 27, 2000, p. 11; and 146 
Congressional Record, September 20, 2000, p. S8867 (daily ed.). For 
further discussion of this point, see infra Chapter IX.
---------------------------------------------------------------------------
    In the case of bilateral treaties, there is little 
substantive difference between amendments and reservations, 
although there may be a significant diplomatic difference. (As 
discussed below, there also is a procedural difference in the 
Senate's consideration of amendments and reservations under 
Senate Rule XXX.) While it may be politically easier for the 
other country involved to accept a reservation rather than a 
change in the actual language of the treaty text, the legal 
effect is substantively the same: either form of condition 
amounts to a counter offer.
    Understandings, by contrast, are interpretive statements 
that clarify or elaborate, rather than change, the provisions 
of an agreement and that are deemed to be consistent with the 
obligations imposed by the agreement. The actual effect of any 
particular proposed understanding may, of course, be debatable. 
What may seem to the Senate to be a reasonable interpretation, 
and therefore an understanding, might appear to the other 
country or countries involved to be an important modification, 
and therefore a reservation, particularly if it concerns an 
aspect of the agreement that is considered fundamental. If that 
is the conclusion of another party to a treaty, the mere 
characterization of a condition as an understanding rather than 
a reservation will do little to change that conclusion. True 
understandings are commonly used in the ratification of both 
multilateral and bilateral treaties as a means of clarification 
and reassurance rather than revision.
    Declarations are statements of purpose, policy, or position 
related to matters raised by the treaty in question but not 
altering or limiting any of its provisions. The President has 
on occasion interpreted such declarations as falling outside of 
the formal provisions to be incorporated in the instruments 
used in the ratification process,\23\ and the Senate itself has 
at times so directed.\24\ As a consequence, such statements are 
often placed in a separate section of the Senate's resolution 
of ratification. The term ``declaration'' sometimes is used 
interchangeably with the term ``proviso.''
---------------------------------------------------------------------------
    \23\ In the case of the 1976 Treaty of Friendship and Cooperation 
with Spain, the State Department decided that it was inappropriate to 
include the text of a lengthy Senate declaration in the instruments of 
ratification, because the declaration related in part to the 
encouragement of ``free institutions'' in a ``democratic Spain'' and 
was certain to be offensive to Spain. The Department defended its 
position on this point in a memorandum that appears in the 1976 Digest 
of United States Practice in International Law. Eleanor C. McDowell 
ed., State Department pub. 8908, November 1977, pp. 215-217. A number 
of Senators protested however; and ultimately the declaration was 
included as a separate ``annex'' to the U.S. instrument of 
ratification.
    \24\ See, for example, the resolution of ratification on the 
``Inter-American Convention on Serving Criminal Sentences Abroad,'' 146 
Congressional Record, October 18, 2000, p. S10658 (daily ed.).
---------------------------------------------------------------------------
    Provisos often include conditions relating to the process 
of implementing a treaty within the United States. Among the 
conditions attached to the Senate's resolution of ratification 
of the Convention Against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment, for example, was a proviso, 
specifically not to be included in the instrument of 
ratification, that the President of the United States would not 
deposit the instrument of ratification until such time as he 
had notified all parties that nothing in the convention 
required or authorized legislation, or other action, by the 
United States prohibited by the Constitution as interpreted by 
the United States.\25\
---------------------------------------------------------------------------
    \25\ Treaty Doc. 100-20. See 136 Congressional Record, October 27, 
1990, p. S17492 (daily ed.).
---------------------------------------------------------------------------
    The Senate Committee on Foreign Relations gave considerable 
attention to the types of conditions added to treaties and to 
their legal effect during its consideration of the SALT II 
Treaty in 1979.\26\ The committee included a number of 
declarations, understandings, and reservations in the 
resolution of ratification it recommended to the Senate. But, 
concerned that the traditional labels left some ambiguity 
regarding the legal effect of the proposed conditions, it 
grouped them into the following three categories:
---------------------------------------------------------------------------
    \26\ The committee's concern had been stimulated in part by the 
administration's refusal in 1976 to include a Senate declaration in the 
instruments of ratification of a Treaty of Friendship and Cooperation 
with Spain. See n. 22. In addition, during hearings on the SALT II 
Treaty, former Yale Law School Dean Eugene V. Rostow had expressed the 
view that reservations did not have the same legal effect as amendments 
to the treaty itself. A reservation, he argued, ``has the same effect 
as a letter from my mother.'' Testimony of Eugene Rostow, chairman, 
Executive Committee, Committee on the Present Danger, before the Senate 
Foreign Relations Committee, July 19, 1979, in the SALT II Treaty, 
Hearings before the Committee on Foreign Relations, U.S. Senate, 96th 
Cong., 1st Sess., Part 2, p. 393, and subsequently repeated on 
September 6, 1979, Part 4, p. 13.
---------------------------------------------------------------------------
          (I) conditions that did not need to be formally 
        communicated to, or accepted by, the Soviet Union;
          (II) conditions that did need to be formally 
        communicated to, but not necessarily accepted by, the 
        Soviet Union; and
          (III) conditions that required the explicit agreement 
        of the Soviet Union.\27\
---------------------------------------------------------------------------
    \27\ U.S. Congress. Senate. Committee on Foreign Relations. SALT II 
Treaty. S. Exec. Rept. 96-14, November 19, 1979.

    In addition, the committee obtained the prior agreement of 
the administration to this format. Secretary of State Cyrus 
Vance gave assurances to the committee that
          (1) all conditions would be deemed equally binding on 
        the President regardless of the category in which they 
        were placed;
          (2) category II conditions would be conveyed to the 
        Soviet Union by formal diplomatic note prior to the 
        exchange of the instruments of ratification, thus 
        assuring that the Soviet Union understood the U.S. 
        position in advance of the treaty's entry into force, 
        yet not requiring explicit Soviet approval as in the 
        case of a condition conveyed in the instrument of 
        ratification; and
          (3) the executive branch would follow a procedure for 
        securing Soviet agreement to the provisions in category 
        III that would leave no doubt as to the explicit 
        agreement of the Soviet Union. This would probably be 
        done, the Secretary said, by securing explicit Soviet 
        agreement in the ``Protocol of Exchange of Instruments 
        of Ratification'' that is signed by both parties.\28\
---------------------------------------------------------------------------
    \28\ Id., at 29-32 (exchange of letters between the committee and 
the Secretary of State).

    Because of the Soviet Union's intervention in Afghanistan, 
the Senate never voted on the SALT II Resolution of 
Ratification. But it subsequently used these categories in its 
Resolution of Ratification on the INF Treaty. As noted, these 
categories, when used, have supplemented, not replaced, the 
traditional typology.
    The Committee on Foreign Relations re-emphasized its view 
regarding conditions in its 1985 report on the Genocide 
Convention, asserting that all conditions placed by the Senate 
on its advice and consent were to be included in the instrument 
of ratification unless the Senate expressly stated otherwise. 
The report said:
          Unless there is an express statement by the Senate to 
        the contrary, it is the Committee's firm view that all 
        conditions adopted by the Senate are to be included in 
        the instrument of ratification and therefore furnished 
        to all other parties to the treaty. Not only does the 
        Committee believe this to be the law, but it believes 
        it to be essential for practical reasons as well. The 
        Senate's conditions, together with the treaty and its 
        accompanying documents, describe in full the obligation 
        undertaken by the United States in ratifying the 
        treaty. To insure an identity of expectations by all 
        parties concerning the rights and obligations imposed 
        by the treaty, each party should be accorded formal 
        notice of the Senate's conditions. Notification by any 
        method other than inclusion in the instrument of 
        ratification simply increases the possibility of 
        misunderstanding.\29\
---------------------------------------------------------------------------
    \29\ U.S. Congress. Senate. Committee on Foreign Relations. 
Genocide Convention. S. Exec. Rept. 99-2, July 18, 1985. p. 15.

    More recently, the committee has adopted the practice of 
specifying which conditions are to be included in the 
instrument of ratification and which should not be included. It 
also has specified that particular declarations in its 
resolutions of ratification are binding on the President.\30\
---------------------------------------------------------------------------
    \30\ See, for example, the 33 resolutions of ratification to which 
the Senate gave its advice and consent on October 18, 2000. 146 
Congressional Record, October 18, 2000, pp. S10658-S10667 (daily ed.).
---------------------------------------------------------------------------

               condition regarding treaty interpretation

    In the mid-1980s a controversy erupted that has resulted in 
the inclusion of a condition regarding treaty interpretation in 
every resolution of ratification adopted by the Senate. In the 
early 1980s the Reagan Administration initiated a ``Strategic 
Defense Initiative'' (SDI) to develop new means, including 
mobile- and space-based means, of protecting the United States 
against missile attack. Critics immediately charged that SDI 
would violate the 1972 Anti-Ballistic Missile (ABM) Treaty, 
which barred the United States and the Soviet Union from 
deploying ABM systems (except for one fixed site to protect 
either the nation's capital or an offensive missile complex) 
and from developing, testing, or deploying ``ABM systems which 
are sea-based, air-based, space-based, or mobile land-based.'' 
The administration responded that a broader interpretation of 
the treaty allowed the development and testing of ABM systems 
based on different physical principles than those that existed 
in 1972. It said that the text of the treaty was ``ambiguous'' 
in this respect, that the negotiating record of the treaty 
supported the broader interpretation, that the subsequent 
practice of the parties was consistent with the broader 
interpretation, and that as a consequence the President was 
justified in reinterpreting the treaty to more accurately 
reflect what the negotiating record said it meant.\31\
---------------------------------------------------------------------------
    \31\ For exposition of the administration's legal justifications, 
see Sofaer, Abraham, ``The ABM Treaty and the Strategic Defense 
Initiative,'' 99 Harvard Law Review 1972 (1986) and the testimonies of 
Abraham Sofaer, Legal Adviser to the State Department, and Richard 
Perle, Assistant Secretary of Defense for International Security 
Policy, Joint Hearings on the ABM Treaty and the Constitution Before 
the Senate Committee on Foreign Relations and the Senate Committee on 
the Judiciary (1987), at 119-170 and 351-375.
---------------------------------------------------------------------------
    Usually when the Foreign Relations Committee and the Senate 
consider a treaty, they do not have access to the full 
negotiating record, including all the instructions, 
transcripts, correspondence, and other often voluminous 
material relating to it. Instead, they rely on the testimony 
and other formal communications from the executive branch to 
ascertain a treaty's meaning. But in response to the 
administration's claims regarding the ABM Treaty, the Senate, 
at the initiative of Senators Nunn and Levin, sought and gained 
access to the negotiating record of the ABM Treaty.\32\ The 
Foreign Relations Committee and the Judiciary Committee held 
extensive hearings \33\; and Senator Biden submitted, and the 
Foreign Relations Committee reported, a resolution to constrain 
the administration's ability to reinterpret the ABM Treaty.\34\
---------------------------------------------------------------------------
    \32\ Under an access agreement concluded in February, 1988, the 
State Department supplied the documents, and the Senate created an Arms 
Control Treaty Review Support Office to house and provide a system for 
using the documents. After extended study, Senator Nunn, in detailed 
commentaries on the Senate floor, asserted that this record as well as 
the Senate's ratification hearings and debates and the subsequent 
practices of the parties belied the administration's claim. See 133 
Congressional Record 5296-5302 (March 11, 1987), 5582-5587 (March 12, 
1987), 5688-5690 (March 13, 1987), and 13143-13163 (May 20, 1987).
    \33\ Joint Hearings on the ABM Treaty and the Constitution Before 
the Senate Committee on Foreign Relations and the Senate Committee on 
the Judiciary (1987).
    \34\ S. Res. 167, 100th Cong., 1st Sess. (1987), the ``ABM Treaty 
Interpretation Resolution,'' and S. Rept. 100-164, 100th Cong., 1st 
Sess. (1987).
---------------------------------------------------------------------------
    These actions served as precursors to a condition regarding 
treaty interpretation that was added in 1988 to the resolution 
of ratification on the INF Treaty.\35\ That condition 
articulated what it said were the constitutional principles 
that would govern the future interpretation of the treaty. The 
Foreign Relations Committee explained:
---------------------------------------------------------------------------
    \35\ Because of the administration's claims that the negotiating 
record of the ABM Treaty gave a more accurate indication of its meaning 
than administration testimony to the Senate, the Senate also sought and 
gained access to the negotiating record of the INF Treaty. But in its 
report on the INF Treaty, the Foreign Relations Committee took the 
position that Senate review of negotiating records should not become an 
institutionalized procedure, although reference to the record on a 
case-by-case basis sometimes might be useful. In the committee's view, 
``a systematic expectation of Senate perusal of every key treaty's 
negotiating record'' might inhibit candor during future negotiations 
and impose on the Senate ``a considerable task with no clear purpose.'' 
U.S. Congress. Senate. Committee on Foreign Relations. The INF Treaty. 
Report. S. Exec. Rept. 100-15, 100th Cong., 2d Sess., April 14, 1988, 
p. 100.
---------------------------------------------------------------------------
          Both domestic and international law give primacy in 
        treaty interpretation to the text of the treaty. 
        International law requires that a treaty be interpreted 
        in accordance with the ordinary meaning to be given the 
        treaty's terms in light of their context and in light 
        of the treaty's object and purpose. Domestic law does 
        not differ, and is also premised on the assumption that 
        the Executive and the Senate, as co-makers of the 
        treaty for the United States, will share a common 
        understanding of a treaty's text. As a matter of 
        record, that common understanding of the text will be 
        reflected in the Executive's formal presentation of the 
        treaty to the Senate: in formal presentation documents, 
        in prepared testimony, and in verbal and written 
        intercourse regarding the treaty's meaning and 
        effect.\36\
---------------------------------------------------------------------------
    \36\ Id., p. 97. See also the discussion of the Byrd-Biden 
condition in Chapter VIII.

    The ``Biden condition,'' as subsequently modified on the 
Senate floor by amendments by Senators Byrd and Cohen and 
approved by the Senate on May 26, 1988,\37\ became the first 
condition to the INF Treaty and stated as follows:
---------------------------------------------------------------------------
    \37\ The Senate approved the modified Byrd-Biden condition by a 
vote of 72-27 and the resolution of ratification by a vote of 93-5. 134 
Congressional Record 12655 (May 26, 1988) and 12849 (May 27, 1988), 
respectively.
---------------------------------------------------------------------------
          Provided that the Senate's advice and consent to 
        ratification of the INF Treaty is subject to the 
        condition, based on the treaty clauses of the 
        Constitution, that:
                  (1) the United States shall interpret the 
                Treaty in accordance with the common 
                understanding of the Treaty shared by the 
                President and the Senate at the time the Senate 
                gave advice and consent to ratification;
                  (2) such common understanding is based on:
                          (i) first, the text of the Treaty and 
                        the provisions of this resolution of 
                        ratification; and
                          (ii) second, the authoritative 
                        representations that were provided by 
                        the President, and his representatives 
                        to the Senate and its Committees, in 
                        seeking Senate consent to ratification, 
                        insofar as such representations were 
                        directed to the meaning and legal 
                        effect of the text of the Treaty; and
                  (3) the United States shall not agree to or 
                adopt an interpretation different from that 
                common understanding except pursuant to Senate 
                advice and consent to a subsequent treaty or 
                protocol, or the enactment of a statute; and
                  (4) if, subsequent to ratification of the 
                Treaty, a question arises as to the 
                interpretation of a provision of the Treaty on 
                which no common understanding was reached in 
                accordance with paragraph (2), that provision 
                shall be interpreted in accordance with 
                applicable United States law.\38\
---------------------------------------------------------------------------
    \38\ 134 Congressional Record 12849 (May 27, 1988).

President Reagan protested the inclusion of this condition in 
the Senate's resolution of ratification but, nonetheless, 
proceeded to complete the ratification of the INF Treaty.\39\
---------------------------------------------------------------------------
    \39\ Id. 14261 (June 13, 1988) (Message from the President--
Comments with Respect to Senate Positions on the INF Treaty). It might 
be noted that both the Bush and Clinton Administrations subsequently 
expressed their acceptance of the principles stated in the Byrd-Biden 
condition. See START Treaty, S. Hrg. 102-607, Pt. 1, pp. 506-507; Open 
Skies Treaty, Exec. Rept. 103-5, p. 18.
---------------------------------------------------------------------------
     In the following decade, the Senate incorporated the Byrd-
Biden condition to the INF Treaty by reference in its 
resolutions of ratification on all of the major arms control 
agreements: the CFE Treaty in 1991, START I in 1992, the Open 
Skies Treaties in 1993, the START II Treaty in 1996, and the 
Chemical Weapons Convention and the Flank Document Agreement to 
the CFE Treaty in 1997.\40\ In each instance, however, it 
broadened the condition by affirming its applicability not just 
to the treaty under consideration, as it had with the INF 
Treaty, but to all treaties.
---------------------------------------------------------------------------
    \40\ CFE Treaty. Exec. Rept. 102-22, p. 81; START Treaty. Exec. 
Rept. 102-53, pp. 96, 101-102; Open Skies Treaty, Exec. Rept. 103-5, p. 
16; START II, Exec. Rept. 104-10, p. 46; Chemical Weapons Convention, 
143 Congressional Record, April 24, 1997, p. S3656 (daily ed.); and 
Flank Document Agreement, Exec. Rept. 105-1, pp. 22-24.
---------------------------------------------------------------------------
    The Senate added another dimension to the Byrd-Biden 
condition when it gave its advice and consent to the Flank 
Document Agreement to the CFE Treaty in 1997. The Clinton 
Administration had initially wanted to submit the Flank 
Document to both the House and the Senate and to have it 
approved by majority vote in both bodies as a congressionally-
authorized executive agreement. A legal memorandum from the 
Justice Department had concluded that method of approving an 
amendment to a treaty was lawful, and its argument was based in 
part on subsection (1)(C) of the Byrd-Biden condition.\41\ The 
Senate insisted on its prerogatives, however, and the 
administration eventually submitted the Flank Document to the 
Senate for its advice and consent. But to forestall any similar 
construction of the Byrd-Biden condition in the future, the 
Senate, upon the recommendation of the Foreign Relations 
Committee, added the following language to the condition in its 
resolution of ratification on the Flank Document:
---------------------------------------------------------------------------
    \41\ Office of Legal Counsel, Department of Justice, ``Validity of 
Congressional-Executive Agreements That Substantially Modify the United 
States' Obligations Under an Existing Treaty'' (November 25, 1996). The 
memorandum stated in part:
    Finally, in its Resolution of Advice and Consent of 27 May 1988 to 
the U.S.-U.S.S.R. Treaty on the Elimination of Their Intermediate-Range 
and Shorter-Range Missiles (INF Treaty), the Senate adopted the ``Biden 
condition,'' which provides that ``the United States shall interpret 
the Treaty in accordance with the common understanding of the Treaty 
shared by the President and the Senate at the time the Senate gave its 
advice and consent to ratification,'' and that ``the United States 
shall not agree to or adopt an interpretation different from that 
common understanding except pursuant to Senate advice and consent to a 
subsequent treaty or protocol, or the enactment of a statute.'' 134 
Congressional Record 12,849 (1988) (emphasis added). The Senate 
affirmed ``the applicability to all treaties of the constitutionally-
based principles'' in this condition. Resolution of Advice and Consent 
of 25 November 1991 to the Treaty on Conventional Armed Forces in 
Europe (CFE Treaty), 137 Congressional Record, November 23, 1991, pp. 
S17,845, S17,846 (daily ed.), adopted id. at S18,038 (daily ed. Nov. 
25, 1991). Because the Senate took the view that such ``common 
understandings'' of a treaty had the same binding effect as express 
provisions of the treaty for purposes of U.S. law, the Biden condition 
logically supports the proposition that the President may be authorized 
to accept changes in treaty obligations either by further Senate advice 
and consent or by statutory enactment.
---------------------------------------------------------------------------
          (8) Nothing in condition (1) of the resolution of 
        ratification of the INF Treaty, approved by the Senate 
        on May 27, 1988, shall be construed as authorizing the 
        President to obtain legislative approval for 
        modifications or amendments to treaties through 
        majority approval of both Houses.\42\
---------------------------------------------------------------------------
    \42\ 143 Congressional Record, May 14, 1997, p. S4477 (daily ed.).

     Subsequent to that dispute, the Senate has included the 
Byrd-Biden condition, as modified, as a declaration not only in 
its resolutions of ratification on arms control agreements but 
also those on every other treaty it has considered, regardless 
of its subject matter. The condition now is commonly worded as 
follows:
          DECLARATION.--The Senate's advice and consent is 
        subject to the following declaration, which shall be 
        binding upon the President:
                  TREATY INTERPRETATION.--The Senate affirms 
                the applicability to all treaties of the 
                constitutionally based principles of treaty 
                interpretation set forth in Condition (1) of 
                the resolution of ratification of the INF 
                Treaty, approved by the Senate on May 27, 1988, 
                and Condition (8) of the resolution of 
                ratification of the Document Agreed Among the 
                States Parties to the Treaty on Conventional 
                Armed Forces in Europe, approved by the Senate 
                on May 14, 1997.

           condition regarding supremacy of the constitution

     Since the beginning of the 105th Congress in 1997, the 
Senate has routinely included a second condition as well in all 
of its resolutions of ratification. That condition, commonly in 
the form of a proviso, states as follows:
          SUPREMACY OF THE CONSTITUTION.--Nothing in this 
        Treaty requires or authorizes legislation or other 
        action by the United States of America that is 
        prohibited by the Constitution of the United States as 
        interpreted by the United States.

 This condition was first included in the Senate's resolution 
of ratification on the Genocide Convention in 1986. In 
subsequent Congresses the Senate gradually extended its use of 
the condition, first to other human rights treaties and then to 
treaties on narcotics, mutual legal assistance, and 
extradition. In its current form, the proviso sometimes states 
that it is ``binding on the President,'' and sometimes that it 
is ``not [to] be included in the instrument of ratification to 
be signed by the President.'' Sometimes the proviso includes 
both phrases, and sometimes it includes neither.
     Both the merits and the form of the condition have been 
matters of controversy in the Senate. On May 21, 1985, the 
Foreign Relations Committee approved the condition for the 
first time, 9-8, as one of several conditions proposed by 
Senators Helms and Lugar to the Genocide Convention.\43\ The 
committee's report explained that the condition, at that time 
in the form of a reservation to the convention, was desirable 
as a matter of prudence because of ambiguities in some of the 
provisions of the Genocide Convention. It noted that the 
Supreme Court had held the Constitution to be supreme over 
treaties as a matter of domestic law \44\; but, it said, 
international law did not allow ``internal law'' to justify a 
failure to perform the obligations imposed by a treaty. Thus, 
the committee stated, ``[if] a conflict were to arise between 
the requirements of the Constitution and those of the 
Convention, the United States might be found to be in default 
of its international obligation.'' \45\ Two ambiguities in the 
convention were of particular concern, it said. First, it 
stated, it was not clear whether the language directing parties 
to enact legislation to implement the convention ``in 
accordance with their respective Constitutions'' was solely 
procedural or applied to the substance of the legislation as 
well. Second, the committee report commented that there was a 
possible conflict between the free speech clause of the first 
amendment and the convention's requirement that ``direct and 
public incitement to commit genocide'' be punished. The 
committee concluded:
---------------------------------------------------------------------------
    \43\ S. Exec. Rept. 99-2, 99th Cong., 1st Sess. (July 18, 1985), at 
4.
    \44\ Reid v. Covert, 354 U.S. 1 (1957).
    \45\ S. Exec. Rept. 99-2, supra, at 20.
---------------------------------------------------------------------------
          The Committee reservation may never be invoked. 
        Article V may be interpreted to apply to substance as 
        well as form. The other articles may never be construed 
        in a way inconsistent with the U.S. Constitution. 
        Nonetheless, the Committee believes that prudence, as 
        well as due regard for the obligations imposed by 
        international law, recommends the reservation.\46\
---------------------------------------------------------------------------
    \46\ Id. at 21.

     Eight Senators filed ``additional views'' criticizing the 
inclusion of this reservation, however.\47\ First, they 
asserted, ``36 years of detailed legal analysis'' of the 
convention had produced no ``credible contention'' that it was, 
or could be, in conflict with the Constitution. Second, they 
noted that the Supreme Court had repeatedly held the 
Constitution to be supreme over a treaty. Third, they said, it 
created a lack of certitude about the intent of the United 
States to fulfil its obligations under the convention and was 
``disturbing to our allies who have undertaken an unqualified 
acceptance of the treaty's obligations.'' Fourth, they stated 
that the self-serving nature of the reservation suggested that 
the United States ``was not ratifying the * * * Convention in 
good faith.'' Fifth, they claimed, it invited other nations 
``that can easily change their constitutions'' to adopt a 
similar reservation and thus could create major problems in 
enforcing the treaty's obligations. The eight Senators 
concluded:
---------------------------------------------------------------------------
    \47\ Id. at 28-31.
---------------------------------------------------------------------------
          This reservation * * * will seriously compromise the 
        political and moral prestige the United States can 
        otherwise attain in the world community by unqualified 
        ratification of the Genocide Convention. It will hand 
        our adversaries a propaganda tool to use against the 
        United States and invite other nations to attach 
        similar self-judging reservations that could be used to 
        undermine treaty commitments.

 Nonetheless, the reservation remained part of the resolution 
of ratification as approved by the Senate, 83-11, on February 
19, 1986.
     In the 101st Congress the Senate attached the condition 
not only to its resolution of ratification on another human 
rights treaty but also to six mutual legal assistance treaties 
(MLATs) as well as a narcotics convention. The merits of the 
condition continued to be debated, but a consensus gradually 
developed around its form.
     Initially, the Committee on Foreign Relations rejected, by 
votes of 2-15, Senator Helms' proposal to include a 
constitutional supremacy condition as a reservation in the 
resolutions of ratification on six mutual legal assistance 
treaties.\48\ The committee majority and Senator Helms 
articulated their conflicting views on the merits of the 
condition in the committee's reports on the treaties.\49\ But 
on the floor the Senate agreed to a compromise. The compromise 
deleted the words ``as interpreted by the United States'' and 
provided that the condition would be included in the 
instruments of ratification on each treaty as an understanding 
rather than as a reservation. This meant that the other parties 
to the treaties would not have to expressly accept the 
condition in their own ratification processes. As modified, the 
Senate approved the condition by voice vote and then, after one 
other modification, approved the resolutions of ratification on 
the six treaties by votes of 99-0.\50\
---------------------------------------------------------------------------
    \48\ The treaties were with Great Britain (with respect to the 
Cayman Islands), Mexico, Canada, Belgium, the Bahamas, and Thailand See 
Treaty Docs. 100-8 (Aug. 4, 1987), 100-13 (Feb. 16, 1988), 100-14 (Feb. 
22, 1988), 100-16 (March 29, 1988), 100-17 (April 13, 1988), 100-18 
(April 25, 1988), respectively.
    \49\ See S. Exec. Repts. 101-9, 101-10, 101-11, 101-12,101-13, and 
101-8, respectively, all reported on July 31, 1989. (The committee also 
had reported the treaties late in the second session of the 100th 
Congress and had, similarly, rejected Senator Helms' proposal at that 
time. See S. Exec. Rept. 100-26 (Sept. 30, 1988).) In each report the 
majority asserted that the reservation was ``unnecessary'' both because 
the Supreme Court had repeatedly held the Constitution to be supreme 
over treaties and because none of the MLATs authorized or required 
legislation or other action prohibited by the Constitution; that such a 
reservation might lead some ``treaty partners'' to reject the treaties 
or to insist on a reciprocal reservation that could ``limit the 
usefulness of the treaty''; that it would invite defendants and targets 
of investigation ``to interpose specious challenges to MLAT requests'' 
by claiming that their government's investigative methods did not 
comport with our constitutional requirements; that a decade of 
experience under several existing MLATs had not exposed any conflicts 
with our Constitution; and that, unlike the Genocide Convention, the 
MLATs addressed only procedural matters and not the substance of crimes 
for which U.S. citizens might be tried. In ``Additional Views'' in each 
report, Senator Helms argued in response that ``the essential reason 
for such a proviso is the still unanswered question of whether the 
Constitution supersedes a treaty or whether a treaty can be held to be 
of equal force to the Constitution with respect to its provisions.'' 
Court decisions concerning the supremacy of the Constitution over 
treaties, he contended, remained ambiguous and inconclusive. Senator 
Helms also asserted that without the reservation the MLATS would allow 
foreign governments, ``some of which are corrupt,'' to obtain evidence 
on U.S. citizens in the U.S. without necessarily abiding by the 
constitutional requirements that apply to U.S. investigations and ``to 
seek U.S. evidence relating to persons in their own countries just to 
see how much we know''; that the administration's arguments to the 
contrary lacked cogency; and that the MLATs without the reservation 
threatened ``a full scale assault against American liberties.''
    \50\ 135 Congressional Record 25633 and 25637 (October 24, 1989).
---------------------------------------------------------------------------
     In the following month, the Foreign Relations Committee 
reported, and the Senate approved, a resolution of ratification 
on the United Nations Convention Against Illicit Traffic in 
Narcotic Drugs and Psychotropic Substances.\51\ One article of 
the convention obligated the parties to provide mutual legal 
assistance with respect to certain narcotics offenses. Senator 
Helms, as a consequence, proposed that the same understanding 
be added as was added to the previously adopted MLATs. But his 
proposal altered the form of the condition in one respect; it 
specified that the understanding not be included in the 
instruments of ratification on the convention. The committee 
adopted his proposal, along with two other understandings \52\; 
and the Senate approved the resolution of ratification on 
November 21, 1989.\53\
---------------------------------------------------------------------------
    \51\ Treaty Doc. 101-4 (May 20, 1989).
    \52\ S. Exec. Rept. 101-15 (Nov. 14, 1989), pp. 10-11 and 115.
    \53\ 135 Congressional Record 31383 (Nov. 21, 1989).
---------------------------------------------------------------------------
     Finally, the Senate in the 101st Congress further modified 
the form of the constitutional supremacy condition in its 
resolution of ratification on the Convention Against Torture 
and Other Cruel, Inhuman or Degrading Treatment or 
Punishment.\54\ The condition was not formally offered during 
the deliberations of the Senate Committee on Foreign Relations, 
because the minority members were all absent. Nonetheless, the 
committee report articulated the majority's objections to such 
a condition, while the minority members vigorously protested 
their exclusion from the committee's deliberations.\55\ Once 
again, however, a compromise was developed that forestalled a 
contentious floor debate. Although still objecting to the 
condition as unnecessary, the Bush Administration, the chair of 
the committee, Senator Pell, and Senator Helms agreed to add 
four conditions to the resolution of ratification. In this 
compromise the constitutional supremacy condition was stated to 
be a ``proviso, which shall not be included in the instrument 
of ratification to be deposited by the President'' but which 
would be notified to the other parties. It was worded as 
follows:
---------------------------------------------------------------------------
    \54\ Tr. Doc. 100-20, 100th Cong., 2d Sess. (May 23, 1988).
    \55\ S. Exec. Rept. 101-30, 101st Cong., 2d Sess. (Aug. 30, 1990), 
pp. 4-5. Most of the majority's arguments reiterated the concerns that 
had been expressed previously. But the report also asserted that the 
inclusion of the condition in the instruments of ratification on the 
Genocide Convention and the six MLATs had proven ``problematic.'' 
Twelve Western European nations, it said, had filed written objections 
to the reservation on the Genocide Convention, and four of the six 
states with which the MLATs had been negotiated, it stated, had 
``voiced strong concerns about the proviso and/or have taken similar 
reciprocal provisos.''
---------------------------------------------------------------------------
          The President of the United States shall not deposit 
        the instrument of ratification until such time as he 
        has notified all present and prospective ratifying 
        parties to this Convention that nothing in this 
        Convention requires or authorizes legislation, or other 
        action, by the United States of America prohibited by 
        the Constitution of the United States as interpreted by 
        the United States.

     During the floor debate Senator Pell observed that the 
condition was not a reservation and, thus, neither altered the 
obligations of the United States under the convention nor 
allowed other parties to invoke it on a reciprocal basis as a 
means of limiting their own obligations. Senator Helms, terming 
the condition a ``sovereignty proviso,'' reiterated his concern 
that ``other countries be put on notice that our Constitution 
is the supreme law of the land, a law which can never be 
invalidated or modified in any degree by an international 
obligation.'' Although several other Senators expressed 
objections to the proviso, the Senate approved the package of 
conditions and the convention by division votes.\56\
---------------------------------------------------------------------------
    \56\ 136 Congressional Record 36196 and 36198 (October 27, 1990).
---------------------------------------------------------------------------
     In the 102d Congress the proviso gained its current form. 
During the Senate Foreign Relations Committee's consideration 
of another human rights treaty, the International Covenant on 
Civil and Political Rights,\57\ Senator Helms proposed that the 
constitutional supremacy condition be included as a proviso to 
the resolution of ratification and that it state that it 
``shall not be included in the instrument of ratification to be 
deposited by the President.'' The committee adopted the 
proposal by voice vote and explained the proviso in its report 
as follows:
---------------------------------------------------------------------------
    \57\ Ex. E, 95-2, 95th Cong., 2d Sess. (Feb. 23, 1978).
---------------------------------------------------------------------------
          The substantive language of the proviso reflects the 
        Administration's position on the relationship between 
        treaties and the Constitution. Since this relationship 
        is a matter of domestic U.S. law, the proviso is not 
        included in the instrument of ratification. This 
        approach eliminates the potential for confusion at the 
        international level about the nature of the U.S. 
        ratification.\58\
---------------------------------------------------------------------------
    \58\ Id. at 5.

 The proviso elicited no comment in the brief Senate floor 
debate, and the Senate approved the resolution of ratification 
on the covenant by division vote on April 2, 1992.\59\
---------------------------------------------------------------------------
    \59\ 138 Congressional Record 8071 (April 2, 1992).
---------------------------------------------------------------------------
     At Senator Helms' initiative, the committee also approved 
the addition of the same proviso to the resolutions of 
ratification on four mutual legal assistance treaties during 
the 102d Congress \60\; and the Senate, without comment on the 
proviso, approved the resolutions.\61\ In the 103d Congress the 
committee accepted the same proviso as part of the resolution 
of ratification on another human rights treaty, the 
International Convention on the Elimination of All Forms of 
Racial Discrimination \62\; and the Senate, on June 24, 1994, 
again concurred.\63\ In the 104th Congress, the Senate included 
the proviso in its resolutions of ratification on six 
additional MLATs \64\ and also extended its use by applying it 
to seven resolutions relating to extradition treaties.\65\ With 
party control of the Senate having changed, the proviso was 
included in the resolutions of ratification recommended by the 
Foreign Relations Committee without the necessity of amendment, 
either in committee or on the floor. Neither the committee's 
reports or the brief floor debates on either the MLATs or the 
extradition treaties offered any novel comments on, or 
objections to, the proviso.\66\
---------------------------------------------------------------------------
    \60\ The MLATs were with Jamaica, Argentina, Uruguay, and Spain. 
See Treaty Docs. 102-16 (Oct. 25, 1991), 102-18 (Oct. 31, 1991), 102-19 
(Nov. 13, 1991), and 102-21 (Jan. 22, 1992), respectively. The 
committee's reports on these MLATs stated, incorrectly, that the 
proviso was ``identical to understandings approved by the Senate'' with 
respect to the MLATs with the Bahamas, Belgium, Canada, and Mexico in 
1989. See Exec. Repts. 102-32 (May 21, 1992), at 4; 102-33 (May 21, 
1992), at 3-4; 102-34 (May 21, 1992), at 4; and 102-35 (May 21, 1992), 
at 3-4.
    \61\ 138 Congressional Record 17964-65 (July 2, 1992).
    \62\ Exec. C, 95-2, 95th Cong., 2d Sess. (Feb. 23, 1978). In its 
report the committee reiterated the comment it had made previously with 
respect to the International Covenant on Civil and Political Rights: 
``The substantive language of the proviso reflects the Administration's 
position on the relationship between treaties and the U.S. 
Constitution. Since this relationship is a matter of domestic U.S. law, 
the proviso will not be included in the instrument of ratification. The 
Committee agrees with the Administration that this approach eliminates 
the potential for confusion at the international level about the nature 
of the U.S. ratification.'' See S. Exec. Rept. 103-29, 103d Cong., 2d 
Sess. (June 2, 1994), at 4.
    \63\ 140 Congressional Record, June 24, 1994, p. S7634 (daily ed.).
    \64\ The MLATs were with Panama, Austria, Hungary, the Philippines, 
Great Britain, and Korea. See Treaty Docs. 102-15 (Oct. 24, 1991), 104-
21 (Sept. 7, 1995), 104-20 (Sept. 6, 1995), 104-18 (Sept. 5, 1995), 
104-2 (July 30, 1996), and 104-22 (July 30, 1996), respectively.
    \65\ The extradition treaties were with Malaysia, Bolivia, the 
Philippines, Switzerland, Belgium (both a treaty and a supplemental 
treaty), and Hungary. See Treaty Docs. 104-26 (May 17, 1996), 104-22 
(Oct. 10, 1995), 104-16 (Sept. 5, 1995), 104-9 (June 12, 1995), 104-7 
and 104-8 (July 12, 1995), and 104-5, respectively.
    \66\ The reports on the MLATS were, respectively, for Panama, S. 
Exec. Rept. 104-3 (May 5, 1995); for Austria, S. Exec. Rept. 104-24 
(July 30, 1996); for Hungary, S. Exec. Rept. 104-25 (July 30, 1996); 
for the Philippines, S. Exec. Rept. 104-26 (July 30, 1996); for Great 
Britain, S. Exec. Rept. 104-23 (July 30, 1996) and for Korea, S. Exec. 
Rept. 104-22 (July 30, 1996). The reports on the extradition treaties, 
all of which were issued on July 30, 1996, were, for Malaysia, S. Exec. 
Rept. 104-30; for Bolivia, S. Exec. Rept. 104-31; for the Philippines, 
S. Exec. Rept. 104-29; for Switzerland, S. Exec. Rept. 104-32; for 
Belgium, S. Exec. Rept. 104-28; and for Hungary, S. Exec. Rept. 104-27. 
The Senate approved the Panama MLAT on May 16, 1995 (141 Congressional 
Record S 6764) and the rest of the MLATs and all of the extradition 
treaties as a package on August 2, 1996 (142 Congressional Record S 
9661-62) by division votes, without substantive debate. With the 
exception of the committee's report on the MLAT with Panama, the 
reports all stated: ``Bilateral (MLATs/extradition treaties) rely on 
relationships between sovereign countries with unique legal systems. In 
as much as U.S. law is based on the Constitution, this treaty may not 
require legislation prohibited by the Constitution.''
---------------------------------------------------------------------------
     As noted above, since the beginning of the 105th Congress, 
the committee and the Senate have included the condition as a 
proviso in its resolutions of ratification on virtually all 
treaties.\67\
---------------------------------------------------------------------------
    \67\ The 105th and 106th Congresses approved a total of 104 
treaties on such diverse subjects as mutual legal assistance, 
extradition, child labor, taxes, copyright, airline liability, bribery, 
trademarks, plant patents, maritime boundaries, migratory birds, arms 
control, conservation, and adoption. The one treaty approved in the 
106th Congress that did not include the proviso was the Convention on 
Nuclear Safety. Treaty Doc. 104-6 (May 11, 1995); S. Exec. Rept. 105-1 
(March 24, 1999); 145 Congressional Record, March 25, 1999, pp. S3573-
S3577 (daily ed.).
---------------------------------------------------------------------------

                     D. Resolution of Ratification

     When the committee reports a treaty to the Senate, it does 
so with a proposed resolution of ratification. Proposed 
conditions usually are incorporated as provisions of this 
resolution. By contrast, any amendments to the text of the 
treaty, which seldom are proposed, are reported as freestanding 
proposals for the Senate to consider. Technically, neither the 
committee nor the Senate actually amends the text of a treaty; 
rather, the Senate identifies those amendments that would be 
necessary to gain its favorable advice and consent. However, 
the committee initially and the Senate subsequently can amend 
the resolution of ratification. A hypothetical resolution of 
ratification containing each type of condition described above 
would take the following form:
          Resolved (two-thirds of the Senators present 
        concurring therein), That the Senate advise and consent 
        to the ratification of [official treaty title], subject 
        to the following:
          (1) reservation that * * *
          (2) understanding that * * *
          (3) declaration that * * *
        and provided that:
                  (a) * * *
                  (b) * * *

 The conditions included in the last clause are those referred 
to as provisos.

                        E. Senate Floor Procedure

                           executive session

     Once a treaty is reported from the Foreign Relations 
Committee and placed on the Senate's Executive Calendar, it 
must lie over for 1 calendar day before second reading and 
Senate consideration, unless the Senate agrees by unanimous 
consent to waive this requirement. The Majority Leader may 
begin the process of consideration by making a motion to go 
into executive session, as distinguished from legislative 
session, to consider a particular treaty. This motion takes 
precedence over most other motions; it is neither amendable nor 
debatable, but it may be the subject of a roll call vote. 
However, the most common procedure in recent years is for the 
Majority Leader to obtain in advance a unanimous consent 
agreement providing for the Senate to begin consideration of a 
treaty in executive session at a particular day and time.
     Until recently, the Senate's procedures encouraged it to 
consider treaties and nominations in the order in which they 
appeared on the Executive Calendar--that is, the order in which 
they were reported from committee. The Senate would agree to a 
motion that provided only that the Senate go into executive 
session. Once in executive session, the Senate was required to 
take up the first item on the Executive Calendar, whether it 
was a treaty or a nomination, unless it decided otherwise by 
unanimous consent or by motion. The motion to take up a treaty 
out of its order on the Executive Calendar was debatable in 
executive session, and therefore was subject to being 
filibustered. This procedural hurdle to taking up items of 
executive business out of their order on the calendar 
occasionally had consequences for the fate of various 
agreements. The Threshold Test Ban and Peaceful Nuclear 
Explosions Treaties, for example, were ordered reported by the 
Foreign Relations Committee in 1977 but then were recalled, in 
part so as not to be placed on the Executive Calendar ahead of 
the controversial Panama Canal Treaties.\68\ In the following 
year, the Senate rejected an effort to reverse the order in 
which the Senate would consider the two Canal Treaties 
themselves.\69\
---------------------------------------------------------------------------
    \68\ Confirmed in unpublished committee transcripts.
    \69\ On February 22, 1978, by a vote of 67-30, the Senate rejected 
a motion to reverse the order of consideration of the Canal Treaty and 
the Neutrality Treaty.
---------------------------------------------------------------------------
     Since that time, however, the Senate has established the 
precedent that a non-debatable motion to go into executive 
session can provide for the Senate to proceed directly to the 
consideration of any particular item on the Executive Calendar. 
This precedent enables the Senate to agree to a motion, most 
likely made by the Majority Leader, to take up a specific 
treaty that is on the Executive Calendar and that has satisfied 
the layover requirement of Rule XXX.

                       non-controversial treaties

     Once the Senate agrees to take up a treaty, its 
consideration is governed by Senate Rule XXX. The Senate's 
usual practice, however, has been to waive some of the 
procedural requirements of this rule, including the second 
reading of a treaty and consideration of amendments to the 
treaty itself. Instead, the Senate proceeds directly to 
consideration of the resolution of ratification as reported by 
the Foreign Relations Committee. To this end, the Majority 
Leader may ask and obtain unanimous consent that the treaty be 
considered as having passed through all the parliamentary 
stages up to and including presentation of the resolution of 
ratification. Alternatively, there first may be some debate on 
the treaty before the Presiding Officer proposes that the 
Senate turn to the resolution of ratification. The procedure 
followed may resemble the following:
          The PRESIDING OFFICER. The Clerk will report the 
        treaty by title for the information of the Senate.

          [After the Clerk reports the treaty by title, if no 
        one seeks recognition, or after the debate of the 
        treaty has been concluded, and if no one offers an 
        amendment, the Chair takes the initiative and makes the 
        following statement:]
          The PRESIDING OFFICER. The treaty will be considered 
        as having passed through its various parliamentary 
        stages up to and including the presentation of the 
        resolution of ratification, which the Clerk will 
        report.

          [After the Clerk reads the resolution, the Chair 
        should properly state:]
          The PRESIDING OFFICER. Reservations to the resolution 
        of ratification are now in order. If there be no 
        reservations or understandings to be offered to the 
        resolution of ratification, the question is on the 
        adoption of the resolution of ratification.

          [If the yeas and nays have been ordered, the Chair 
        states:]
          The PRESIDING OFFICER. The yeas and nays have been 
        ordered on this question and the Clerk will call the 
        roll.

          [After the roll call vote has been taken and the 
        Clerk gives the tabulation to the Presiding Officer, 
        the Chair states:]
          The PRESIDING OFFICER. On this vote the yeas 
        are______; the nays are______. Two-thirds of the 
        Senators present (a quorum being present) having voted 
        in the affirmative, the resolution of ratification is 
        agreed to.

                                   OR

          On this vote the yeas are______; the nays are______. 
        Two-thirds of the Senators present (a quorum being 
        present) not having voted in the affirmative, the 
        resolution of ratification is not agreed to.

          [After the Chair announces the results on the 
        resolution of ratification, the following action by 
        unanimous consent usually occurs:]
          A SENATOR (usually the Majority Leader or someone 
        acting for him). Mr. President, I ask unanimous consent 
        that the President be immediately notified of the 
        Senate's consent (disapproval) to the resolution of 
        ratification.
          The PRESIDING OFFICER. Without objection, it is so 
        ordered.\70\
---------------------------------------------------------------------------
    \70\ Riddick, Floyd M. and Alan S. Frumin. Riddick's Senate 
Procedure. Sen. Doc. 101-28, 1992. pp. 1557-1558.
---------------------------------------------------------------------------

                         controversial treaties

     The opponents of a treaty may object to setting aside the 
procedures of Rule XXX by unanimous consent and proceeding 
directly to consideration of the resolution of ratification. In 
1978, for example, the late Senator James Allen, of Alabama, 
refused to agree to abbreviating the Senate's procedures for 
considering the Panama Canal Treaties. The procedures of Rule 
XXX govern the Senate unless there is unanimous consent to 
modify them or set them aside. Before 1986 these procedures 
were more complicated than they are today because Rule XXX then 
required that the Senate first consider treaties on the floor 
``as in Committee of the Whole.'' \71\ In 1986, soon after 
approval of the Genocide Convention, Rule XXX was amended to 
eliminate this requirement.\72\
---------------------------------------------------------------------------
    \71\ The Committee of the Whole is a parliamentary device by which 
the entire membership of a legislative body sits as a single committee 
to consider a matter and then makes its recommendations to the body in 
the same way that a standing committee would.
    \72\ Rule XXX was amended as part of S. Res. 28, 99th Cong., 2d 
Sess., February 27, 1986.
---------------------------------------------------------------------------
     When the Senate begins considering a treaty under the 
current Rule XXX procedure, the treaty is to be read for a 
second time. This reading is to be in full and it can be waived 
only by unanimous consent. The text of the treaty itself then 
is open to amendment, although the first hours or days of 
consideration may be devoted to speeches only, either by 
informal arrangement or by a formal unanimous consent 
agreement. If the Foreign Relations Committee has recommended 
any amendments to the treaty, they are the first amendments to 
be considered, and each committee amendment is subject to 
second degree amendments while it is pending. Reservations, 
understandings, and other such statements may not be offered to 
the treaty, nor may they be offered to the resolution of 
ratification while the treaty itself is before the Senate.
     A motion to consider the treaty in secret (``with closed 
doors'') may be made at any time by any Senator and requires 
only a second. Once this motion is made and seconded, in 
accordance with Senate Rule XXI, the Presiding Officer directs 
the galleries to be cleared and the Senate continues its 
business behind closed doors. ``A closed session, under Rule 
XXI, can be invoked simply by a motion and a second, and the 
question is not debatable. Once the Senate goes into closed 
session, it may then determine whether it stays in closed 
session * * *. When in closed session, a motion to return to 
open session is in order and not debatable.'' \73\ On March 29, 
1988, for example, the Senate went into closed session to 
discuss issues raised by the INF Treaty on the day before it 
was ordered reported by the Foreign Relations Committee.\74\
---------------------------------------------------------------------------
    \73\ Riddick, Floyd M. and Alan S. Frumin, Riddick's Senate 
Procedure. Sen. Doc. 101-28, 1992. pp. 278, 280.
    \74\ Congressional Record, March 29, 1988, p. S3204 (daily ed.).
---------------------------------------------------------------------------
     The INF Treaty is an example of a treaty considered under 
the Rule XXX procedures since the rule was amended in 1986. In 
considering that treaty, Majority Leader Robert Byrd, on May 
17, 1988, secured unanimous consent that the second reading 
proceed through the signatures of the parties, at which time 
the Senate would dispense with the reading temporarily. After 
debate, Senator Jesse Helms asked unanimous consent that 
further reading of the attached protocols be suspended, subject 
to the demand of any Senator that the reading of them be 
resumed. Later, further reading was dispensed with.\75\ The 
Senate then voted on and tabled (rejected) an amendment to the 
treaty itself that was offered by Senator Steve Symms; other 
proposed amendments to the treaty were tabled or withdrawn. 
After the Senate proceeded to the consideration of the 
resolution of ratification, it adopted various amendments to 
the resolution as proposed by the Foreign Relations Committee, 
and then agreed to the resolution, as amended, by the required 
two-thirds majority.
---------------------------------------------------------------------------
    \75\ Congressional Record, May 18, 1988, p. S6084 (daily ed.).
---------------------------------------------------------------------------
     It is unusual today for Senators to propose amendments to 
the text of a treaty. Instead, they typically formulate their 
proposals in the form of conditions that they offer as 
amendments to the resolution of ratification. Under Rule XXX, 
after debate on the treaty itself, the next step is for the 
Senate to consider this resolution. If the Senate has agreed to 
any amendments to the text of the treaty, they are incorporated 
in the resolution of ratification, not in the treaty itself. 
The resolution states, in effect, that the Senate gives its 
advice and consent to the ratification of the treaty on the 
condition that the parties to the treaty accept the amendments 
proposed by the Senate and listed in the resolution. Once the 
resolution of ratification is laid before the Senate, no 
further amendments to the text of the treaty may be proposed, 
except by unanimous consent.
    Under Rule XXX, the Senate is not to begin considering the 
resolution of ratification on the same day it completes debate 
on the treaty itself and disposes of any amendments to it, 
unless the Senate by unanimous consent determines otherwise. 
The resolution is prepared by the Executive Clerk and, when 
presented to the Senate, includes any amendments to the text of 
the treaty that the Senate has adopted as well as the texts of 
any conditions recommended by the Committee on Foreign 
Relations. As noted above, the committee now routinely proposes 
at least two conditions, but at times it also has recommended 
multiple conditions of different types. In March 1999, for 
example, the committee reported protocols to the 1980 
Conventional Weapons Convention with 1 reservation, 9 
understandings, and 13 conditions. In July 2000, it reported 
the Inter-American Convention on Sea Turtles with three 
understandings, five declarations, and two provisos.
     The conditions recommended by the Committee on Foreign 
Relations are the first to be considered when the Senate takes 
up the resolution of ratification. Each condition that the 
committee has proposed is debatable and amendable. After the 
Senate acts on the committee's recommended conditions, 
individual Senators can propose their own conditions, which are 
also debatable and amendable.
     The resolution of ratification, like a bill the Senate 
considers in legislative session, is subject to amendment in 
two degrees. Each condition that the committee recommends or 
that a Senator offers is a first degree amendment to the 
resolution and is amendable in the second degree, subject to 
the Senate's established precedents governing the amendment 
process on the floor. It also is in order to offer an amendment 
in the nature of a substitute that proposes to replace the 
entire text of the resolution. Such a complete substitute can 
propose that the Senate withhold its advice and consent. During 
consideration of the resolution of ratification for the second 
Panama Canal Treaty, for example, the Senate considered and 
rejected a substitute proposing that the treaty be returned to 
the President with the advice that negotiations be re-opened 
with the Government of Panama. If the Senate had agreed to this 
substitute, it would have nullified the proposed amendments to 
the treaty to which the Senate already had agreed.
     At any time that the resolution of ratification is before 
the Senate, a motion to recommit the resolution to committee 
may be offered. As with any motion to recommit, the motion may 
be coupled with instructions to the committee, and those 
instructions (such as instructions directing the committee to 
hold additional hearings) are amendable.
     If the Senate agrees to any conditions, they are attached 
to the resolution following any proposed amendments, to which 
the Senate had agreed earlier, to the text of the treaty. After 
action on any proposed reservations, etc., the Senate finally 
votes on a resolution of ratification that may contain both 
amendments proposed to the treaty and amendments (in the form 
of conditions) to the resolution itself. Approving the 
resolution, as it may have been amended, requires a vote of at 
least two-thirds of the Senators present and voting.

                consideration of treaties under cloture

     The cloture provisions of Senate Rule XXII can be applied 
to the consideration of treaties. In the absence of cloture, 
the treaty and its resolution of ratification, and amendments 
to them, are debatable at length, and amendments need not be 
germane. At any time during the Senate's consideration of a 
treaty or resolution, a cloture motion may be filed. To be 
successful, a cloture motion requires the affirmative votes of 
at least ``three-fifths of the Senators duly chosen and 
sworn.'' Cloture, if invoked, applies to floor action on both 
the treaty and the resolution of ratification. The Senate does 
not have to invoke cloture separately on the treaty and then on 
the resolution.
     If cloture is invoked, there is then a total of 30 
additional hours permitted for consideration of the treaty and 
the resolution of ratification, and all amendments to them. The 
time consumed by votes and quorum calls as well as by debate in 
connection with the treaty and the resolution all is included 
within the 30-hour limitation. However, any time that the 
Senate devotes to considering legislative business or other 
executive business does not count against the 30 hours. During 
these 30 hours for post-cloture consideration, each Senator is 
limited to 1 hour of speaking time, except that any Senator who 
has not spoken for, or yielded, at least 10 minutes during the 
30-hour period is permitted up to 10 minutes for debate after 
the 30 hours elapse. Under cloture, a germaneness rule 
governing amendments is in effect, and no Senator may call up 
more than two amendments until every other Senator has had an 
opportunity to do likewise. After the 30 hours expire, Senators 
may not offer additional amendments to either the treaty or the 
resolution of ratification.
     The Senate invoked cloture in 1992 during consideration of 
START I and its related protocol. The Bush Administration 
wanted to obtain the Senate's advice and consent before the 
102d Congress adjourned in October of that year. Senate leaders 
feared a filibuster by opponents, or at least a lengthy debate 
that would delay other business and adjournment. On September 
26, 1992, Senate Majority Leader George Mitchell submitted a 
cloture motion that the Senate adopted on September 29 by a 
vote of 87-6, putting the treaty under the 30-hour limitation 
for post-cloture consideration.\76\
---------------------------------------------------------------------------
    \76\ Treaty Docs. 102-20 and 102-32. Congressional Record, 
September 26, 1992, p. S15336 and September 29, 1992, p. S15504 (daily 
ed.).
---------------------------------------------------------------------------
     In some cases, filing cloture motions appears to have 
expedited Senate consideration of treaties even though cloture 
was not invoked on them. After a week of debate on the INF 
Treaty, for example, Senate Majority Leader Robert Byrd 
submitted a cloture motion on May 24, 1988, with a vote 
scheduled for May 26. With debate on amendments moving 
expeditiously, the vote was deferred on May 26, and on May 27 
Senator Byrd received unanimous consent to set a schedule of 
votes on pending amendments and to vitiate the cloture 
motion.\77\
---------------------------------------------------------------------------
    \77\ Congressional Record, May 27, 1988, p. S12785 (daily ed.).
---------------------------------------------------------------------------

                               final vote

     The final vote on agreeing to the resolution of 
ratification requires a two-thirds majority of those present 
and voting for approval. Almost all other treaty-related 
questions--amendments and procedural matters, for example--are 
decided by simple majority votes. (The one exception is a 
motion to postpone a treaty indefinitely, a rarely offered 
motion, that also requires a two-thirds vote for approval.) The 
Constitution does not require that any treaty-related votes be 
decided by calling the roll. Nevertheless, the Senate 
frequently conducts final treaty votes by roll call at times 
convenient for most Senators, although it sometimes acts on 
noncontroversial treaties by division votes instead. Increased 
use of roll call votes developed as a result of adverse 
publicity in the early 1950s when the Senate approved consular 
conventions with Ireland and the United Kingdom with only two 
Senators present.\78\
---------------------------------------------------------------------------
    \78\ See the account of this incident in Carl Marcy, A Note on 
Treaty Ratification. American Political Science Review 47:4, December 
1953, p. 1130.
---------------------------------------------------------------------------
     In recent years, with the proliferation of roll call votes 
and the increasing number of treaties concluded by the United 
States, the Senate frequently has approved two or more treaties 
en bloc, with a single roll call vote covering all of them. As 
noted, on occasion it also has used the alternative procedure 
of approving treaties by division vote. In those instances the 
Presiding Officer asks the Senators present to indicate their 
position by standing to be counted, and then announces his 
conclusion that at least two-thirds of those present have voted 
in favor of the resolution of ratification. On October 18, 
2000, for instance, the Senate approved 33 treaties on diverse 
subjects by division votes.\79\
---------------------------------------------------------------------------
    \79\ Congressional Record, October 18, 2000, pp. S10658-S10667 
(daily ed.).
---------------------------------------------------------------------------
     When time pressures are severe and the treaties to be 
considered are non-controversial, the Senate may agree, by 
unanimous consent, to consider multiple treaties en bloc and to 
dispense with all the Senate's regular procedures for 
considering them. On October 21, 1998, for example, during the 
closing minutes of the 105th Congress, the Senate cast 1 
division vote by which it gave its advice and consent to the 
ratification of 30 treaties. The Senate acted under the terms 
of the following unanimous consent agreement propounded by 
Senator DeWine on behalf of the Majority Leader:
          Mr. DE WINE. Mr. President, on behalf of the Majority 
        Leader of the Senate, I ask unanimous consent that the 
        Senate proceed to executive session to consider the 
        following treaties on today's Executive Calendar: 
        Numbers 24 through 54.
          The PRESIDING OFFICER. Without objection, it is so 
        ordered.
          Mr. DE WINE. Mr. President, I further ask unanimous 
        consent that the treaties be considered as having 
        passed through their various parliamentary stages up to 
        and including the presentation of the resolution of 
        ratification, that all committee provisos, 
        reservations, understandings, and declarations be 
        considered agreed to.
          I further ask unanimous consent that two technical 
        amendments that are at the desk to treaty documents 
        105-34 and 104-40 be considered as agreed to, that any 
        statements be inserted in the Congressional Record as 
        if read.
          I further ask that there be one vote to count as 
        individual votes on each of the treaties, and further, 
        when the resolutions of ratification are voted upon, 
        the motions to reconsider be laid upon the table, that 
        the President then be notified of the Senate's action, 
        and following the disposition of the treaties, the 
        Senate return to legislative session.
          The PRESIDING OFFICER. Without objection, it is so 
        ordered.\80\
---------------------------------------------------------------------------
    \80\ Congressional Record, October 21, 1998, pp. S12972-S12973 
(daily ed.).

     Once approved, the treaty, with the resolution of 
ratification as agreed to by the Senate and signed by the 
Secretary of the Senate, is transmitted by the Senate's 
Executive Clerk to the White House. The White House then sends 
it to the Department of State where the instruments of 
ratification are prepared for the President's signature. Once a 
resolution of ratification has been transmitted to the White 
House, the Senate is unable to reconsider its actions with 
respect to the treaty unless the President should consent or 
desire to resubmit the treaty for that purpose.\81\
---------------------------------------------------------------------------
    \81\ Resolutions of ratification, like bills, are subject to 
motions to reconsider. If the Senate votes to reconsider the vote by 
which it agreed to a resolution of ratification, there could be another 
vote on the same question in the same Congress. However, the Senate 
cannot reconsider its vote on any matter unless it still has custody of 
it.
---------------------------------------------------------------------------

                 failure to receive two-thirds majority

     If a treaty fails to receive the two-thirds vote necessary 
for Senate advice and consent, the Executive Clerk normally 
prepares a resolution for Senate approval reporting that fact 
to the President. Unless the Senate acts affirmatively by 
resolution to return a rejected treaty to the President, 
however, that treaty is returned to the Senate's Executive 
Calendar. Then, in accordance with paragraph 2 of Rule XXX, it 
automatically is referred back to the Foreign Relations 
Committee at the conclusion of the Congress.
     The last time that the Senate rejected a treaty and 
returned it to the President was in 2000. The Montreal Protocol 
No. 3 would have modified the liability limits of the Warsaw 
Convention for personal injury and death resulting from airline 
accidents. Only four other treaties were defeated and returned 
in the 20th century, the Versailles Peace Treaty of 1919 being 
the most significant of these.\82\
---------------------------------------------------------------------------
    \82\ U.S. Congress. Senate Committee on Foreign Relations. 
Background Information on the Committee on Foreign Relations, United 
States Senate (5th revised edition, June 9, 1982), Document No. 97-30, 
97th Cong., 2d Sess., p. 11.
---------------------------------------------------------------------------
     The Senate has considered some treaties without casting 
final votes on giving its advice and consent to their 
ratification. In such cases, the treaties ultimately are 
returned to the Committee on Foreign Relations where they can 
remain indefinitely on the committee's calendar. In 1972, for 
instance, the Senate debated an international convention on 
civil liability for oil pollution damage. However, the Senate 
did not reach a final vote on the convention, so it was 
returned to the committee at the end of the Congress. 
Similarly, in 1980, the committee reported and the Senate 
debated, but did not vote on, separate maritime boundary 
agreements with Mexico and Cuba. At the final adjournment of 
the Congress later that year, both agreements were returned to 
the committee. The committee took no further action on the 
agreement with Cuba. In 1997, however, the committee again 
reported, and the Senate gave its approval to, the agreement 
with Mexico.
     Some treaties have been voted on and failed to receive the 
required two-thirds majority, but then were returned to the 
Foreign Relations Committee, leaving open the possibility that 
the committee and the Senate could vote on them again. In some 
cases, no further action has been taken. The Optional Dispute 
Settlement Protocol to the Geneva Law of the Sea Treaties 
failed on May 26, 1960. At the end of the Congress, the 
protocol was re-referred to the committee and placed on its 
calendar. (Ex. N, 86-1), where it remained for more than 40 
years.\83\
---------------------------------------------------------------------------
    \83\ A summary of Senate action on this issue appears in Comment, 
Laws and Contemporary Problems 46:2, p. 19.
---------------------------------------------------------------------------
     In other cases, further action did take place. On March 8, 
1983, Ex. B, 95-1, Two Related Protocols to the Warsaw 
Convention on Airline Liability, Concluded at Montreal, failed 
to receive the necessary two-thirds vote and were returned to 
the Foreign Relations Committee calendar. The committee 
reported both protocols again in 1990 and then once again in 
1991; but the Senate took no action. In 1998, because of 
intervening actions resulting in the acceptance by the airline 
industry of higher liability limits for personal injury and 
death, the committee reported Montreal Protocol No. 4 favorably 
but recommended that Montreal Protocol No. 3 be returned to the 
President. Protocol No. 4 concerned liability limits for 
baggage and cargo and had never been particularly 
controversial; it had failed of adoption because it was linked 
with Protocol No. 3, which concerned the controversial issue of 
liability for personal injury and death. Once the political 
situation permitted the two protocols to be separated, Montreal 
Protocol No. 4 was readily approved by the Senate and Protocol 
No. 3 was returned to the President.\84\
---------------------------------------------------------------------------
    \84\ Ex. B, 95-1, submitted January 14, 1977. Exec. Rept. 97-45, 
December 16, 1981. Exec. Rept. 98-1, February 10, 1983; Congressional 
Record, March 8, 1983, p. S2279 (daily ed.); Exec. Rept. 101-21, June 
28, 1990; Exec. Rept. 102-1, February 5, 1991; Congressional Record, 
June 28, 1991, p. S9216 (daily ed.); August 1, 1991, p. S11711; 
November 5, 1991, p. S15875; Exec. Rept. 105-20, August 25, 1998; 
Congressional Record, September 28, 1998, p. S11059 (daily ed.).
---------------------------------------------------------------------------
     In at least one instance, the Senate has approved a treaty 
after rejecting it and then agreeing to a motion to reconsider 
that decision. By a vote of 49-32, the Senate rejected a tax 
convention with the United Kingdom on June 23, 1978. The Senate 
then agreed to reconsider that vote and, 4 days later, approved 
the convention by a vote of 82-5.\85\
---------------------------------------------------------------------------
    \85\ Ex. K, 94-2; Ex. Q, 94-2; Ex. J, 95-1.
---------------------------------------------------------------------------

                         F. Return or Withdrawal

     More often than being disapproved by Senate vote, treaties 
lacking adequate support simply are not reported by the Foreign 
Relations Committee or, if reported, are never voted on by the 
Senate. These treaties may remain pending on the calendar of 
the committee or they may be returned to the President.
     The normal practice for returning treaties has been for 
the committee to report out, and for the Senate to adopt, a 
Senate resolution directing the Secretary of the Senate to 
return a particular treaty or treaties to the President. This 
procedure was used several times in 1981: once to return a 
pending fishing treaty with Canada that lacked Senate support, 
and on two other occasions to return obsolete tax treaties.\86\ 
In 1991, the Senate adopted a resolution to return 1979 and 
1983 Amendments to the 1966 International Convention on Load 
Lines.\87\ President Bush had requested the return of the 
amendments when he submitted the 1988 Protocols Relating to the 
Safety of Life at Sea Convention and the Load Lines Convention, 
which replaced the earlier amendments.\88\ Most recently, the 
Foreign Relations Committee reported S. Res. 267 on March 9, 
2000, proposing that the Secretary of the Senate be directed to 
return to the President a total of 18 treaties, including the 
Law of the Sea Protocol, mentioned earlier, that the Senate had 
received in September 1959, more than 40 years earlier.\89\ On 
October 12, 2000, after deleting one treaty from the list, the 
Senate approved the resolution.\90\
---------------------------------------------------------------------------
    \86\ The vehicle for returning these treaties was an executive 
resolution. Now, however, regular Senate resolutions are employed for 
this purpose.
    \87\ S. Exec. Res. 104, reported April 23, 1991, and agreed to June 
11, 1991. The amendments withdrawn were Treaty Docs. 97-14 and 100-12.
    \88\ Treaty Doc. 102-2, submitted March 19, 1991.
    \89\ Congressional Record, March 9, 2000, pp. S1423-S1424 (daily 
ed.).
    \90\ Id., October 12, 2000, p. S10499 (daily ed.).
---------------------------------------------------------------------------
     The initiative for returning a treaty may come from the 
Foreign Relations Committee itself or the Senate leadership, or 
it may take the form of a request from the President.\91\ The 
President does not have the formal authority to withdraw a 
treaty from Senate consideration without the Senate's 
concurrence. In practice, however, a President can render any 
pending treaty effectively moot, at least for the duration of 
his time in office, simply by declaring his unwillingness to 
ratify it, regardless of whatever action the Senate might take. 
The decision to return one or more treaties usually reflects a 
mutual agreement between the Senate and the President, and 
often is primarily a housecleaning decision to remove obsolete 
or superseded treaties from the committee calendar. As 
discussed earlier, the Senate also can approve a resolution, 
without prior action on it by the Foreign Relations Committee, 
in order to return to the President a treaty that failed to 
obtain the necessary two-thirds vote of approval.
---------------------------------------------------------------------------
    \91\ A Presidential message asking for the return of a treaty is 
transmitted by the Senate Parliamentarian to the Executive Clerk, who 
delivers it to the Foreign Relations Committee.


     VII. PRESIDENTIAL OPTIONS ON TREATIES AFTER SENATE ACTION \1\
---------------------------------------------------------------------------

    \1\ Prepared by Raphael F. Perl, Specialist in International 
Affairs.
---------------------------------------------------------------------------
                              ----------                              

    When a treaty to which the Senate has advised and consented 
in either qualified or unqualified form is returned to the 
President, a number of procedural options are available to 
him.\2\ He may ratify the treaty; resubmit the treaty for 
further consideration at a later date; or simply decide not to 
ratify the treaty.\3\ If he resubmits the treaty, he may do so 
in its original form, or he may do so in a form which has been 
modified as a result of further negotiations. If he decides not 
to ratify the treaty, he may so indicate in a formal 
announcement, or he may do nothing. The President may also 
request withdrawal of a treaty from Senate consideration.\4\
---------------------------------------------------------------------------
    \2\ In some instances the Senate has also rejected a treaty. See 
Collier, E., U.S. Senate Rejection of Treaties, a Brief Survey of Past 
Instances. March 30, 1987, Congressional Research Service Report 87-
305F. The Comprehensive Nuclear Test-Ban Treaty is the most recent 
example. Senate Treaty Doc. 105-28.
    \3\ See Whiteman, M., Digest of International Law, Washington, 
D.C., U.S. Government Printing Office, 1970, v. 14, p. 61 and Crandall, 
Treaties, Their Making and Enforcement, pp. 98-101. (2d ed. 1916).
    \4\ Presidential withdrawal of a treaty while that treaty is under 
consideration by the Senate is discussed in Chapter VI.
---------------------------------------------------------------------------
    This chapter discusses the options available to the 
President when a treaty is returned to him together with the 
Senate's resolution of advice and consent to ratification. It 
also briefly examines options available to the President if 
other nations (after Senate consideration) subsequently attach 
conditions to a treaty which may affect its meaning.

                            A. Ratification

                       ratification of the treaty

    When the Senate gives its advice on and consent to a treaty 
and returns the treaty to the White House, the President is 
then free to ratify the treaty if he so chooses. Ratification 
is a formal act on the instrumental plane expressing the 
consent of a state to be bound by a treaty.\5\ There is no 
legal obligation for a nation to ratify a treaty signed on its 
behalf.\6\
---------------------------------------------------------------------------
    \5\ cf. Whiteman, M., Digest of International Law, v. 14, pp. 45-
48.
    \6\ Ibid., p. 50.
---------------------------------------------------------------------------
    A nation generally confirms its willingness to be bound in 
a formal document. Such documents are generally referred to as 
instruments of ratification. However, when the treaty so 
provides, they may take the form of instruments of acceptance, 
instruments of approval, or instruments of accession.\7\
---------------------------------------------------------------------------
    \7\ Vienna Convention on the Law of Treaties, S. Exec. Doc. L, 
Article 16. S. Exec. Doc. L, 92d Cong., 1st Sess. (1971). See Appendix 
5 (hereafter cited as Vienna Convention).
---------------------------------------------------------------------------
    A treaty may specifically provide that it is to be ratified 
by the President by and with the advice and consent of the 
Senate.\8\ However, this full formulation is not required. A 
treaty may provide language, in more general terms, to the 
effect that ``consent * * * shall be expressed by means of 
ratification,'' or that it is signed ``subject to 
ratification,'' or ``subject to ratification by signatory 
States in accordance with their respective constitutional 
procedures.'' \9\ The more neutral language is usually used to 
indicate that a treaty is not binding.
---------------------------------------------------------------------------
    \8\ Treaty of Amity, Commerce, and Navigation. (Jay Treaty with 
Great Britain) signed November 19, 1794. TS105; 12 Bevans 13. 
Ratification advised by the Senate with amendment, June 24, 1795.
    \9\ Article 14 of the Vienna Convention discusses consent to be 
bound expressed by ratification, but does not address the issue of 
whether ratification is required if an agreement is silent on this 
topic. Modern treaties generally do not fail to address this matter. 
See Restatement (Third) of the Foreign Relations Law of the United 
States, sec. 312, Reporters' Note 2.
---------------------------------------------------------------------------
    Ratification itself is a national act.\10\ In order for a 
nation to be bound internationally, treaties generally require 
international action such as the exchange or deposit of 
instruments of ratification.\11\ It is this international 
exchange or deposit of instruments of ratification which is 
ordinarily associated with the entry into force of a 
treaty.\12\ Bilateral treaties commonly specify entry into 
force upon exchange of instruments of ratification, or a 
certain time after such an exchange; multilateral treaties 
sometimes require that a certain number of instruments of 
ratification be deposited in order for the treaty to enter into 
force, either upon deposit of the requisite number or a certain 
time thereafter.
---------------------------------------------------------------------------
    \10\ Whiteman, Digest of International Law, v. 14, p. 62.
    \11\ Article 2 of the Vienna Convention defines ``ratification,'' 
``acceptance,'' ``approval,'' and ``accession'' as ``international acts 
whereby a state establishes on the international plane its consent to 
be bound by a treaty.''
    \12\ Whiteman, Digest of International Law, v. 14, p. 62.
---------------------------------------------------------------------------
    As ratification is a national process, it is determined by 
domestic procedures and requirements that differ between 
nations. For example, one state's law may require approval by 
the national legislature as a step in the ratification process 
while another's may not.\13\ In U.S. practice, after the Senate 
gives its advice and consent to ratification of a treaty, the 
Secretary of the Senate attests to the resolution of advice and 
consent, and transmits it together with the treaty to the White 
House for transmittal to the Secretary of State. The Secretary 
then prepares an instrument of ratification for the President's 
signature.\14\
---------------------------------------------------------------------------
    \13\ In the case of a bilateral executive agreement between the 
United States and another country, the law of the other country might 
require ratification there even though U.S. procedure might not include 
ratification in such a case.
    \14\ Whiteman, Digest of International Law, v. 14, pp. 46-47.
---------------------------------------------------------------------------
    The instrument of ratification includes the title of the 
treaty and the date of signature. It also contains a summary of 
action taken by the Senate together with conditions or 
amendments proposed by the Senate.\15\ The instrument will 
include a recitation of any reservations by the Senate, and may 
also include understandings or declarations contained in the 
Senate's resolution of advice and consent. Sometimes the Senate 
specifies or the Department of State determines that a proviso 
or statement need not be included in the instrument of 
ratification, particularly if its substance relates only to 
domestic affairs. The instrument of ratification is normally 
prepared in duplicate: one original is deposited or exchanged, 
the other is stored for the archival record along with the 
original treaty or, in the case of a multilateral treaty, a 
certified copy provided by the depositary.
---------------------------------------------------------------------------
    \15\ The President may also include in the instrument a statement 
or understanding which reflects the Senate's understanding of a treaty, 
even if the Senate did not choose to reduce its interpretation to a 
formal reservation or understanding. In such instances the record would 
reflect that the Senate attached a particular meaning to the treaty.
---------------------------------------------------------------------------
    Once prepared, the instrument of ratification, in 
duplicate, is sent to the President for signature. The 
President signs both duplicates of the instrument and returns 
both to the Secretary of State who, in attestation of the 
President's ratification, countersigns them and affixes to them 
the official Seal of the United States. At this point, 
ratification is complete on the national level and the 
instrument of ratification is ready for international exchange 
or deposit.\16\
---------------------------------------------------------------------------
    \16\ U.S. Department of State, Digest of United States Practice in 
International Law, 1974, p. 217. For an example of an instrument of 
ratification, see Appendix 9.
---------------------------------------------------------------------------

 exchange or deposit of instruments of ratification (entry into force)

    Treaties generally require the parties to take 
international action before an agreement formally enters into 
force. Thus, once a President has ratified a treaty, he would 
normally direct that the United States take the action 
necessary to effect the treaty's entry into force. In the case 
of bilateral treaties this action most often involves an 
exchange of instruments of ratification. Hence, a bilateral 
treaty usually enters into force upon such exchange or at a 
time after such an exchange, as provided in the treaty. In the 
case of multilateral treaties, such agreements generally enter 
into force after the deposit of a specified number of 
instruments of ratification at a specified location. Exchange 
or deposit, therefore, has been characterized as ``the key to 
entry into force.'' \17\
---------------------------------------------------------------------------
    \17\ Whiteman, Digest of International Law, v. 14, p. 62, and 
Digest of United States Practice in International Law, 1976, p. 217. A 
detailed examination of exchange procedures may be found in Volume 11 
of the Department of State's Foreign-Affairs Manual [Circular 175] at 
secs. 734 and 746, text reproduced in Appendix 4. International 
exchange or deposit of instruments of ratification is not always 
necessary in order for an international agreement to enter into force. 
For example, an executive agreement may provide that it comes into 
effect upon signature, or that its entry into force is dependent on a 
specified event.
---------------------------------------------------------------------------
    In the case of the Chemical Weapons Convention (CWC), for 
example, the Senate's resolution of advice and consent required 
the President to issue a certification before the U.S. 
instrument of ratification could be deposited.
    The Panama Canal Treaty \18\ and the Vienna Convention on 
the Law of Treaties \19\ are illustrative of requirements for 
expressing consent to be bound to bilateral and multilateral 
treaties, respectively. The Panama Canal Treaty provided that:
---------------------------------------------------------------------------
    \18\ Panama Canal Treaty Between the United States of America and 
Panama, signed at Washington, September 7, 1977, TIAS 10030, Article 
II, Sec. 1. The treaty terminated by its terms December 31, 1999.
    \19\ Articles 82-84.
---------------------------------------------------------------------------
          This Treaty shall be subject to ratification in 
        accordance with the constitutional procedures of the 
        two Parties. The instruments of ratification of this 
        Treaty shall be exchanged at Panama * * * \20\
---------------------------------------------------------------------------
    \20\ Article II, Sec. 1.

    Similarly, the Vienna Convention on the Law of Treaties 
reads:
          1. The present Convention shall enter into force on 
        the thirtieth day following the date of deposit of the 
        thirty-fifth instrument of ratification or accession.
          2. For each State ratifying or acceding to the 
        Convention after the deposit of the thirty-fifth 
        instrument of ratification or accession, the Convention 
        shall enter into force on the thirtieth day after the 
        deposit by such State of its instrument of ratification 
        or accession.\21\
---------------------------------------------------------------------------
    \21\ Vienna Convention, Article 84.

    When the necessary exchange or deposit of instruments of 
ratification of a treaty has been completed and the treaty has 
entered into force, the treaty text is prepared for publication 
by the Department of State in United States Treaties and Other 
International Acts Series,\22\ and registration for publication 
with the U.N. Secretariat pursuant to Article 102 of the U.N. 
Charter.\23\ The United States no longer has a practice of 
proclaiming treaties unless specific circumstances require 
proclamation.\24\
---------------------------------------------------------------------------
    \22\ 1 U.S.C. Sec. 112(a). Slip or pamphlet treaty texts are 
published in the Treaties and Other International Acts Series (TIAS). 
See 1 U.S.C. Sec. 113. See also Chapter X and section, Guide to 
Resources on Treaties, in the annotated bibliography contained in 
Appendix 1.
    \23\ Although Article 102 of the U.N. Charter specifies that a 
treaty must be registered before it can be invoked before any organ of 
the United Nations, this provision has not always been followed in 
practice.
    \24\ The proclamation of a treaty is a national act by which the 
text of a ratified treaty is publicized. Whiteman, Digest of 
International Law, v. 14, p. 113. For an example of a proclamation, see 
Appendix 9. There are no constitutional or statutory provisions in the 
United States which require proclamation of a treaty as such. However, 
if a treaty changes tariffs, the tariffs must be proclaimed. Most 
agreements do not specifically require proclamation, and because 
proclamation is a national act, the absence of a proclamation does not 
affect the international obligation of a treaty. Whiteman, Digest of 
International Law, v. 14, p. 114.
---------------------------------------------------------------------------

        B. Resubmission of the Treaty or Submission of Protocol

    The President may also resubmit a rejected or modified 
treaty to the Senate for reconsideration at any time prior to 
its ratification although the general practice is to submit a 
protocol or supplemental agreement setting out amendments. The 
option of resubmitting the entire treaty permits the 
flexibility of delaying ratification of a treaty if, for 
example, the President expects an imminent change in the 
fundamental circumstances which gave rise to the agreement. It 
also permits him, in instances in which the Senate has rejected 
a treaty or attached reservations he opposed to a treaty, to 
wait for more favorable circumstances and resubmit the 
treaty.\25\ The President may also resubmit a treaty in a 
renegotiated form should a Senate understanding, declaration, 
or reservation alter or restrict its meaning to such a degree 
that it was unacceptable to him or to the other party to the 
agreement.
---------------------------------------------------------------------------
    \25\ For example, the Senate might be more receptive to unqualified 
advice and consent to a multilateral treaty which is resubmitted after 
100 other signatories have ratified it, instead of just a few at the 
time it was originally submitted.
---------------------------------------------------------------------------
    Generally, renegotiation of a treaty will be achieved by 
negotiation of a protocol or supplement to the original 
agreement.\26\ A common motive for such Presidential action is 
to enable the Senate to give advice and consent to ratification 
without reservations, or to avoid outright Senate rejection of 
a treaty. In such circumstances, the executive branch usually 
attempts to negotiate a protocol or supplement to the treaty 
which eliminates objections raised or clarifies provisions 
questioned by the Senate.\27\ Any such instrument is then 
submitted to the Senate for consideration together with the 
original treaty. Such was the case, for example, with the 
United Nations Convention on the Law of the Sea, which was done 
in 1982. The United States did not sign the convention at that 
time because of flaws in the convention's seabed mining regime. 
An Agreement Relating to the Implementation of Part XI of the 
United Nations Convention on the Law of the Sea was transmitted 
to the Senate in 1994, along with the original convention. The 
Letter of Submittal from the Secretary of State states that the 
agreement ``contains legally binding changes to that part of 
the Convention dealing with the mining of the seabed * * * and 
is to be applied and interpreted together with the Convention 
as a single instrument.'' \28\ The agreement itself deals 
principally with the renegotiated seabed mining provisions; by 
correcting those defects in the chief convention, however, it 
``promotes universal adherence to the Convention by removing 
obstacles to acceptance of the Convention by * * * the United 
States.'' \29\
---------------------------------------------------------------------------
    \26\ For example, the U.S.-U.K. Supplementary Treaty to the 
Extradition Treaty of June 8, 1972, with annex. TIAS 12050.
    \27\ Whiteman, Digest of International Law, v. 14, p. 58.
    \28\ Senate Treaty Doc. 103-39, p. v.
    \29\ Ibid.
---------------------------------------------------------------------------
    However, in instances where a clarification is sought, the 
executive branch may be able to satisfy the Senate with 
assurances that specified provisions of a treaty will be 
administered in a certain way. In such instances, negotiation 
of a protocol would not be necessary.\30\
---------------------------------------------------------------------------
    \30\ Whiteman, Digest of International Law, v. 14, p. 58.
---------------------------------------------------------------------------
    Another variant is presented by the 1974 Threshold Test Ban 
and 1976 Peaceful Nuclear Explosion Treaties. It was not until 
protocols relating to verification of both treaties were 
concluded in 1990 that the Senate gave advice and consent to 
ratification of the two treaties and their related protocols. 
The most recent example of close linkage between a treaty and a 
protocol to it is the Inter-American Convention on Mutual 
Assistance in Criminal Matters, done in 1992, and its optional 
protocol, done in 1993, which were transmitted and treated by 
the Senate as a single package; the Senate gave its advice and 
consent to ratification of both instruments on October 18, 
2000.\31\
---------------------------------------------------------------------------
    \31\ Senate Treaty Doc. 105-25, S. Exec. Rept. 106-24.
---------------------------------------------------------------------------
    A treaty may also be formally resubmitted to the Senate, 
after full advice and consent have been granted, but before the 
treaty has been ratified by the President or entered into 
force. Such instances may occur when restrictive provisions 
added in order to obtain the Senate's advice and consent are 
not accepted by the other signatory(s) to the treaty. With the 
passage of time, the Executive may believe the Senate will be 
less inclined to impose restrictions, or the other government 
may be more receptive to accepting the wishes of the Senate.
    An often cited historical example of such a situation 
involves a naturalization convention between the United States 
and Turkey concluded at Constantinople, August 11, 1874. The 
Senate, on January 22, 1875, granted advice and consent to this 
agreement with amendments which were not fully accepted by the 
Turkish Government, and the treaty was not ratified by the 
President. Fourteen years later, the Turkish Government decided 
to accept the agreement as amended, but because of the passage 
of time, President Cleveland again gave the Senate the 
opportunity to act. The Senate, by a resolution dated February 
28, 1889, advised the President to ratify but added a new 
understanding as a condition. A new agreement which 
incorporated all of the Senate amendments was finally 
negotiated and signed by the President in 1908. This agreement 
was then submitted to the Senate and subsequently ratified.\32\
---------------------------------------------------------------------------
    \32\ Crandall, Treaties, Their Making and Enforcement, pp. 101-102. 
However, once the Senate has given advice and consent to a treaty, it 
does not appear that the President is under any constitutional 
obligation to resubmit the treaty as was done in the above cited 
example. Ibid., p. 101.
---------------------------------------------------------------------------

                    C. Inaction or Refusal to Ratify

    U.S. law does not impose any legal obligation on the 
President to ratify a treaty after the Senate has given its 
advice and consent.\33\
---------------------------------------------------------------------------
    \33\ Restatement (Third) of the Foreign Relations Law of the United 
States, sec. 303, Comment d and Reporters' Note 3. This power, although 
not expressly given to the President by the Constitution, has been 
characterized as a ``power which inheres in the executive power 
conferred upon him to conduct our foreign relations'' See Statement of 
John C. Spooner before the U.S. Senate of January 23, 1906. 
Congressional Record, 59th Cong., 1st Sess., p. 1419.
---------------------------------------------------------------------------
    It is also generally conceded that international law does 
not require a state to ratify a treaty until it chooses to 
become a party to the treaty by the means specified in the 
treaty.\34\ The President therefore, is free to ratify, or not 
to ratify a treaty as he sees fit.
---------------------------------------------------------------------------
    \34\ Whiteman, Digest of International Law, v. 14, p. 50.
---------------------------------------------------------------------------
    As ratification requires an affirmative act on the part of 
a President, a failure of the President to ratify means that a 
treaty cannot enter into force for the United States. In most 
cases, Presidential delay of ratification is because 
implementing legislation for the treaty has not yet been 
enacted by the Congress. Presidential inaction is usually 
temporary, as was the case with ratification of the 1958 United 
Nations Convention on the Recognition and Enforcement of 
Foreign Arbitral Awards.\35\ The Senate granted its advice and 
consent to ratification of this convention in 1968, but 
implementing legislation (Public Law 91-360) was not approved 
until July 1970. The President then ratified the convention in 
September 1970.\36\
---------------------------------------------------------------------------
    \35\ 21 U.S.T. 2517, TIAS 6997, 330 UNTS 38.
    \36\ Another more recent example is the treaty with Mexico on the 
Execution of Penal Sentences [28 U.S.T. 7399, TIAS 8718]. The treaty 
was signed on November 25, 1976. Senate advice and consent was given on 
July 21, 1977, and implementing legislation (Public Law 95-144) was 
approved on October 28, 1977. Instruments of ratification were 
exchanged with Mexico 3 days later on October 31, 1977. See also 
Restatement (Third) of the Foreign Relations Law of the United States, 
sec. 303, Reporters' Note 3.
---------------------------------------------------------------------------
    Numerous historical examples of Presidential non-
ratification have been cited by scholarly sources.\37\ One was 
a treaty of amity, commerce, and extradition with Venezuela 
signed July 10, 1856. The Senate gave advice and consent to 
ratification of the treaty with an amendment, but the President 
decided not to ratify the treaty and instead renegotiated it in 
order to effect other changes. The re-negotiated treaty was 
eventually signed, submitted to the Senate, and ratified.\38\
---------------------------------------------------------------------------
    \37\ See Crandall, Treaties, Their Making and Enforcement. pp. 97-
99.
    \38\ Ibid., p. 98. For a list of 38 treaties that were approved by 
the Senate with reservations, but which did not enter into force as a 
result of the reservations, see Collier, E., U.S. Senate Rejection of 
Treaties [Congressional Research Service Multilith 79-149 F.] (July 16, 
1979.) This list, however, does not distinguish treaties unratified 
because Senate reservations were unacceptable to the President, from 
those not ratified because reservations were unacceptable to other 
parties.
---------------------------------------------------------------------------
    Non-ratification, after Senate advice and consent is given 
to a treaty, serves as a final option for a President who does 
not want to ratify a particular treaty. In practice, however, 
Presidential dissatisfaction will be expressed at earlier 
stages of the treaty's consideration, and as Presidents and 
their policies may differ, one President may be reluctant to 
ratify a treaty signed under a previous administration.
    For example, the Eisenhower Administration took the formal 
position that the ``United States will not * * * become a party 
to the covenants on human rights, the convention on the 
political rights of women and certain other proposed 
multilateral agreements.'' \39\ Presumably, this statement 
included the Genocide Convention, signed by a previous 
administration on December 11, 1948, but which had been 
awaiting the advice and consent of the Senate since 1949.\40\ 
Eisenhower's policy was reversed by the Kennedy Administration 
which sent to the Senate human rights conventions on slavery, 
forced labor, and political rights of women,\41\ and by the 
Nixon Administration which renewed the earlier request for 
Senate advice and consent to the Genocide Convention.\42\
---------------------------------------------------------------------------
    \39\ U.S. Department of State Bulletin, vol. 32, p. 822 (1955).
    \40\ See Henkin, Foreign Affairs and the Constitution (1972), p. 
394 n. 71.
    \41\ 113 Congressional Record 8332 (1967).
    \42\ S. Exec. Rept. 92-6, 92d Cong., 1st Sess. (1971).
---------------------------------------------------------------------------
    Another more recent example, albeit involving 
administration opposition to ratification prior to a formal 
vote by the full Senate, is found in the Vienna Convention on 
the Law of Treaties. The Foreign Relations Committee ordered 
reported out a resolution of advice and consent to the treaty 
on September 7, 1972, that contained an understanding and 
interpretation which the executive branch [through the 
Department of State] opposed. As a result of negotiations 
between the executive branch and the Senate, the convention was 
not voted upon by the full Senate and has since remained in 
committee, thereby relieving the President of the possibility 
of being presented with an ``advised and consented'' treaty in 
a form not acceptable to him.\43\
---------------------------------------------------------------------------
    \43\ See Digest of United States Practice in International Law, 
1974, pp. 195-198. For further discussion of Senate action on the 
Vienna Convention, see Chapter III. For subsequent consideration, see 
Nash (Leich), Cumulative Digest of United States Practice in 
International Law 1981-1988, pp. 1228-1239.
---------------------------------------------------------------------------

           procedure when other nations attach new conditions

    Unless prohibited by the agreement itself, a state may 
attach conditions to an agreement only at signature or 
ratification. If such expressions are attached to the treaty as 
formal statements which limit or modify its substance, they are 
known as ``reservations.'' \44\ A reservation is a formal 
declaration by a state that excludes or modifies the legal 
effect of certain treaty provisions as between that state and 
other parties.\45\ If a foreign state, or in the case of the 
United States, a President, adds a reservation to a bilateral 
treaty after the Senate has given advice and consent, the 
President must submit the new reservation to the Senate for its 
advice and consent prior to his ratification of the treaty.\46\
---------------------------------------------------------------------------
    \44\ Whiteman, Digest of International Law, v. 14, p. 137.
    \45\ Ibid. Cf. also Vienna Convention on the Law of Treaties, 
Article 2(1)(d).
    \46\ Henkin, Foreign Affairs and the Constitution (1972), p. 379. 
However, in the case of multilateral treaties this is generally not the 
practice followed. See discussion which follows.
---------------------------------------------------------------------------
    As a practical matter, however, reservations to 
multilateral treaties made by other nations after Senate advice 
and consent are generally not submitted to the Senate. This is 
often the case with multilateral agreements where the executive 
branch has developed a practice of dealing with new 
reservations of other states, after Senate advice and consent 
to a multilateral treaty, without seeking Senate advice and 
consent on the new reservation. This development owes its 
origin in large part to the greatly accelerated pace and 
increased volume of U.S. treatymaking that has been the rule 
following the Second World War, and which has prompted the 
Department of State, since then, not to refer to the Senate for 
advice and consent new reservations made by other states to 
multilateral treaties previously approved by the Senate.\47\
---------------------------------------------------------------------------
    \47\ A letter of March 1, 1966, on file in the Office of the Legal 
Adviser, Department of State, addressed U.S. practice in this regard 
over the preceding 20 years. The text of the letter is reproduced in 
the American Journal of International Law, v. 60 (1966) p. 563.
---------------------------------------------------------------------------
    The rationale for such State Department action has been 
characterized by some sources as apparently being based on a 
doctrine of implied or tacit consent by the Senate to such 
reservations,\48\ and a Department of State letter on this 
issue \49\ maintains that the ``reservations made during this 
period have been such that they were not regarded as requiring 
Senate consideration.'' The letter cited a number of factors 
leading to this conclusion including the existence of 
``reservations'' which were not true reservations (that is, 
reservations by title only and not by substance), repetition by 
states of reservations identical to, or patterned on those of 
other states to which the Senate had originally consented, and 
policies unique to some multilateral agreements which permit 
reservations without referral to other states, or which make 
them subject to majority approval by the other nations--a 
process to which the Senate had originally given its advice and 
consent.\50\
---------------------------------------------------------------------------
    \48\ Restatement (Third) of the Foreign Relations Law of the United 
States, sec. 314, Comment c. See also discussion of tacit amendment in 
section on amendments in Chapter IX.
    \49\ Letter of March 1, 1966, American Journal of International 
Law, v. 60 (1966), p. 563.
    \50\ The letter cites the 1954 Convention concerning Customs 
Facilities for Touring [TIAS 3879] as an example of an agreement 
requiring majority approval of reservations. It has been suggested that 
in such cases * * * ``perhaps * * * the Executive concluded that, 
knowing the practice, the Senate had waived the need for its consent. 
Or that he could accept these modifications on his own authority.'' 
Henkin, Foreign Affairs and the Constitution, p. 379, n. 21. Note that 
the practice of attaching reservations to multilateral treaties which 
are not formally renegotiated, is often a controversial one. It, in 
effect, permits a state to depart from the terms of the treaty in 
contrast to the general agreement of the parties to be equally bound by 
the terms of the document. Thus, the practice of permitting 
reservations to multilateral treaties has the effect of making it 
attractive for states to express objections to a document, and at the 
same time, to become parties to it. The end result, however, is often a 
less homogenous document.
---------------------------------------------------------------------------
    States may also issue clarifications or explanations which 
do not substantively modify a treaty. Such statements may be 
titled ``declaration,'' ``understanding,'' or any other 
descriptive term a party desires. However, whether in fact a 
particular statement is a reservation or merely a non-
substantive addition to an agreement is determined by its 
content and not by its title. This distinction between 
reservations and other non-substantive conditions is important 
because non-substantive understandings, declarations, and 
statements made by other states after Senate advice and consent 
to ratification of a treaty are considered by the Department of 
State not to require new advice and consent.\51\
---------------------------------------------------------------------------
    \51\ Such statements may be regarded as nothing more than a 
clarifying statement. See Whiteman, Digest of International Law, v. 14, 
p. 188.
---------------------------------------------------------------------------
    The issue of whether or not a particular statement was 
indeed a non-substantive statement, not a reservation, was 
raised in regard to a communique issued by the Foreign Ministry 
of Panama on April 25, 1978.\52\ The communique in question 
concerned the Senate's reservations to the Panama Canal Treaty, 
and Senator Jesse Helms, in a letter to President Carter, 
stated that the Panamanian interpretation either rejected or 
repudiated ``key'' Senate changes.\53\ The response from the 
White House was that the communique in question had no legal 
effect as it merely contained a point-by-point description of 
items of Senate action together with a commentary thereon. The 
response stressed the State Department's view that the formal 
instruments of ratification of both the United States and 
Panama would contain the full texts of the amendments, 
conditions, reservations, and understandings which the Senate 
had approved along with the Panama Canal Treaties and that 
these items would be contained in the formal protocol of 
exchange. These were, it noted, the documents by which the 
parties would be bound.\54\
---------------------------------------------------------------------------
    \52\ See Digest of United States Practice in International Law, 
1978, pp. 729-731. The U.S. Senate adopted a resolution of advice and 
consent to the treaty with amendments, reservations and understandings 
earlier on March 16, 1978.
    \53\ Ibid., p. 729. For a text of the lengthy Panamanian 
communique, see Congressional Record, vol. 124, pt. 12 (June 4, 1978), 
pp. S16156-S16163. It is interesting to note that a Panamanian 
plebiscite, held in accordance with that country's constitution, 
approved the treaty as formulated prior to the issuance of this 
communique, just as the United States had.
    \54\ Letter of June 14, 1979, from Assistant Secretary of State for 
Congressional Relations Douglas J. Bennett, Jr., text partially 
reproduced in Digest of United States Practice in International Law, 
1978, p. 730.
---------------------------------------------------------------------------
     The White House position was, therefore, that because the 
Panamanian communique did not constitute a reservation in the 
opinion of the executive branch, the President was not required 
to submit it to the Senate for advice and consent. The Panama 
Canal Treaty subsequently entered into force on October 1, 
1979, without Presidential submittal of the Panamanian 
communique to the Senate for its advice and consent.\55\
---------------------------------------------------------------------------
    \55\ Ibid., See also U.S. Department of State, Treaties in Force, 
p. 225 (2000). Note that the day before ratification of the treaty, 
Panama inserted three new paragraphs in its ratification provision and 
the issue of whether these were non-substantive statements was again 
raised. See Congressional Record of June 15, 1978, v. 124, pt. 14. pp. 
17790-17793 for objections raised and the administration's response.
---------------------------------------------------------------------------
    The issue of whether or not certain statements of the 
Panamanian Government were reservations or not was again raised 
in hearings before the Senate Judiciary Committee's 
Subcommittee on Separation of Powers in June 1983.\56\ In the 
words of committee witness Dr. Charles H. Breecher:
---------------------------------------------------------------------------
    \56\ U.S. Congress. Senate. Committee on the Judiciary. Hearings 
before the Subcommittee on Separation of Powers. The Panama Canal 
Treaty--Constitutional and Legal Aspects of the Ratification Process, 
98th Cong., 1st Sess., June 23, 1983.
---------------------------------------------------------------------------
          [The] Panama Canal treaties have not--I repeat, not 
        been ratified in international law, and they therefore 
        did not go into effect on the 1st of October 1979, and 
        are not in effect now.
          The reason is very simple. In their respective 
        instruments of ratification, the United States and 
        Panama did not agree to the same text of the treaties. 
        Instead, Panama first agreed to the treaties as the 
        President of the United States had ratified them, 
        pursuant to Senate advice and consent, and then added 
        in both its instruments of ratification, unilaterally, 
        something they called an understanding, on which Panama 
        made its agreement to the treaties contingent.
          This Panamanian understanding--in reality, a counter-
        reservation to both treaties, three paragraphs long--
        would, had it been accepted by the United States, have 
        nullified the so-called DeConcini reservation under 
        which the United States has permanently * * * the right 
        to use independently * * * without Panamanian consent, 
        or even against Panamanian opposition, military force 
        in Panama to keep the Canal open and operating. Since 
        the United States has not accepted this Panamanian so-
        called understanding, there are no treaties in 
        international law.\57\
---------------------------------------------------------------------------
    \57\ Ibid., pp. 4-5.

    As part of his response to these assertions, Robert E. 
Dalton, Assistant Legal Adviser for Treaty Affairs at the 
Department of State, expressed the following viewpoint:
          It is indeed true that an amendment or reservation 
        added to a treaty after Senate ratification may require 
        Senate approval. This is based on the notion that the 
        constitutional mandate of Senate advice and consent to 
        a treaty should not be undercut by subsequent changes 
        to the document which the Senate has approved. However, 
        the flaw in the application of these principles to the 
        three-paragraph Panamanian statement is that the 
        Panamanian statement is not an amendment or reservation 
        either in form or substance.

                                 * * *

          In the present case, the first two Panamanian 
        paragraphs are quite clearly labeled 
        ``understandings,'' and the third is a ``declaration.'' 
        On their face, then, they are not statements that would 
        seem to require submission to the Senate. Of course, 
        the definition in the Vienna Convention says, quite 
        rightly, that the label is not necessarily controlling; 
        it is the substance which determines whether a 
        statement is a true reservation. An analysis of the 
        three Panamanian paragraphs makes clear that they are 
        what they are labeled. None purports to exclude or 
        modify the DeConcini condition or any other provision 
        of the treaties, as advised and consented to by the 
        Senate. None is a true reservation.\58\
---------------------------------------------------------------------------
    \58\ Ibid., pp. 102-103.

    It must be stressed, in conclusion, that the issue of 
seemingly non-substantive statements raises an important 
question for the Senate. U.S. practice is such that when a 
treaty has once been sent to the Senate for advice and consent, 
it is the executive branch that determines whether a subsequent 
statement is a substantive modification or not. It is therefore 
up to the executive branch, in exercising its discretion not to 
submit such a statement to the Senate for its advice and 
consent, to proceed in a manner that does not trammel the 
Senate's constitutional role in the treatymaking process.


 VIII. DISPUTE SETTLEMENT, RULES OF INTERPRETATION, AND OBLIGATION TO 
                             IMPLEMENT \1\
---------------------------------------------------------------------------

    \1\ Prepared by Jeanne J. Grimmett, Legislative Attorney.
---------------------------------------------------------------------------
                              ----------                              

    Once a treaty has entered into force, states may differ in 
the interpretation of their obligations and disputes may arise. 
Most disputes are settled by consultation or negotiation. 
However, when these measures fail, states may resort to more 
formal dispute settlement procedures. This chapter examines the 
formal procedural options available to states that want to 
resolve treaty disputes peacefully when negotiations have 
failed. The most frequently used options are conciliation, 
arbitration, and judicial settlement. In the past, the U.S. 
Senate has sometimes attached conditions to its acceptance of 
compulsory judicial settlement procedures of the International 
Court of Justice in treaty disputes. As certain dispute 
settlement procedures in the Vienna Convention are similar to 
those previously approved with conditions--or in the case of 
the Law of the Sea Treaty Optional Protocol--rejected by the 
Senate \2\--particular attention is given to those procedures 
in the Vienna Convention which mandate compulsory jurisdiction 
of the International Court.
---------------------------------------------------------------------------
    \2\ Ex. N, 86-1, rejected May 27, 1960; motion to reconsider 
entered but not taken up. The Optional Protocol was returned to the 
President by S. Res. 267, 106th Cong., 2d Sess., adopted October 12, 
2000. 146 Congressional Record, October 12, 2000, p. S10499 (daily 
ed.).
---------------------------------------------------------------------------
    International law applies to disputes between nations. The 
rules of international law on treaty interpretation as 
specified in the Vienna Convention on the Law of Treaties 
parallel the traditional international rules of treaty 
interpretation. However, the rules governing treaty 
interpretation set forth by the Vienna Convention differ in 
some important respects from the rules of treaty interpretation 
applied by U.S. courts in determining a treaty's effect as 
domestic law. This chapter examines briefly the criteria for a 
treaty interpretation applied by these two systems. Finally, as 
disputes generally arise out of questions relating to a party's 
implementation of a treaty, the question of the obligation of 
Congress to implement an international agreement is also 
discussed.

                         A. Dispute Settlement

    If a dispute arises between states concerning a treaty's 
implementation, it may be possible for the parties involved to 
consult and negotiate a mutually acceptable solution. If 
negotiation does not resolve the dispute, the parties may 
resort to more formal remedies such as conciliation, 
arbitration and judicial settlement.

                              conciliation

    Conciliation is a non-binding process whereby the parties 
to a dispute submit to the efforts of an international body or 
commission of persons to bring about a friendly settlement of a 
dispute. The Vienna Convention provides that in certain 
disputes, if not otherwise settled \3\ within 12 months, a 
party to the dispute may request the Secretary General of the 
United Nations to set into motion an advisory conciliation 
procedure. Under this procedure, the Secretary General shall 
maintain a list of conciliators consisting of qualified jurists 
for prospective appointment to a commission which ``* * * shall 
hear the parties, examine the claims and objections, and make 
proposals to the parties with a view to reaching an amicable 
settlement of the dispute.'' \4\ The Commission is initially 
composed of an even number of members. Each state party to the 
dispute has 60 days to designate one commission member from the 
list who is not of its nationality, and one additional member--
not necessarily from the list--of its own nationality. The four 
conciliators then have an additional 60 days to choose a fifth 
conciliator as chairperson, but if they cannot agree within 
that time, the Secretary General chooses that person.\5\
---------------------------------------------------------------------------
    \3\ Or submitted to the International Court of Justice or to 
arbitration.
    \4\ Vienna Convention, Annex, Secs. 1, 5. Note that conciliation is 
also accorded recognition in article 33 of U.N. Charter to which the 
United States is a party.
    \5\ Ibid., Sec. 2.
---------------------------------------------------------------------------
    The commission may only hear a narrow range of disputes 
relating to validity, termination, withdrawal from or 
suspension of the operation of a treaty.\6\ It may not hear 
disputes relating to implementation, and it may not hear 
disputes relating to jus cogens (superior law). Any party to 
the convention, however, may submit a jus cogens dispute to the 
International Courts.\7\
---------------------------------------------------------------------------
    \6\ Vienna Convention, Arts. 65-66.
    \7\ Vienna Convention, Art. 66(a). For a discussion of jus cogens 
see Chapter III, Section D, supra. Jus cogens refers to the existence 
of a superior law or peremptory norm of international law which holds a 
special status internationally and which cannot be violated by a 
treaty. A dispute relating to jus cogens would center on the issue of 
whether a particular international rule is so universally accepted and 
exalted by the international community that no derogation is permitted 
from it. Parties to a treaty would not be legally permitted, even by 
choice, to violate such a rule. An example of such an agreement would 
be an aggression pact by two nations against a third. Such an agreement 
would violate the U.N. Charter prohibition against the use of force for 
the settlement of disputes, which is often cited as an example of jus 
cogens.
---------------------------------------------------------------------------
    Numerous bilateral agreements also provide for the 
establishment of conciliation commissions or boards. The 
Agreement Between the United States and Poland Regarding 
Fisheries in the Western Region of the Middle Atlantic Ocean 
\8\ is an example of a bilateral agreement of this type. 
Article 10 of the agreement provides for the creation of a 
conciliation board composed of four members, two appointed by 
each government. The governments undertake to encourage 
settlement of claims in accordance with the board's findings, 
but the parties involved are not bound to do so. If one of the 
parties refuses to settle in accordance with the board's 
findings, the board is to encourage the parties to submit to 
binding arbitration.
---------------------------------------------------------------------------
    \8\ Entered into force July 1, 1975, 26 U.S.T. 1117, Treaties and 
Other International Acts (TIAS) 8099.
---------------------------------------------------------------------------
    During two periods, 1913-1915 and 1928-1930, the United 
States entered into more than 40 bilateral conciliation 
treaties.\9\ The earlier of these treaties, the ``Bryan'' 
Treaties, provided for the establishment of commissions of 
inquiry on a permanent basis. Recourse to these commissions is 
binding, although the commission's reports are not binding on 
the parties. Senate consent, in these instances, was limited to 
the original treaties, the terms of which did not require 
subsequent Senate consent to specific appointments to the 
commission, or to the choice of its rules of procedure.\10\
---------------------------------------------------------------------------
    \9\ The so-called ``Bryan'' Treaties and ``Kellogg Conciliation 
Treaties.'' See Whiteman, Marjorie, Digest of International Law, v. 12, 
1971, pp. 948-950 (hereafter cited as Whiteman), for a list of 
countries and citations. The United States also signed a conciliation 
treaty with Liberia on August 21, 1939 (T.S. 968) and a multilateral 
Inter-American Convention on Conciliation in 1933 (T.S. 887).
    \10\ See, for example, the Treaty with Bolivia of Jan. 22, 1914, 38 
Stat. 1868, 5 Bevans 740.
---------------------------------------------------------------------------

                              arbitration

    Arbitration is ``the settlement of disputes between states 
by judges of their own choice, and on the basis of respect for 
law.'' \11\ Arbitration is procedurally similar to non-binding 
conciliation but differs from conciliation in that parties to 
arbitral proceedings agree to accept and to carry out the award 
of the tribunal in good faith. Individual treaties frequently 
contain an arbitration clause by which the parties agree to 
create special tribunals and to submit to them any disputes 
regarding the treaty's application or interpretation.\12\ Thus, 
the Treaty of Peace with Italy of February 10, 1947 provided 
that:
---------------------------------------------------------------------------
    \11\ Schwarzenberger, G. A Manual of International Law. 1967, p. 
241 (hereafter cited as Schwarzenberger). Arbitration is accorded 
special recognition by the Vienna Convention, which provides that a 
dispute relating to a jus cogens (superior law) not otherwise settled 
within 12 months, may be submitted to arbitration by consent of the 
parties instead of to the International Court of Justice. Vienna 
Convention, Art. 66(a).
    \12\ A treaty provision which grants a tribunal automatic 
jurisdiction over disputes regarding the application or interpretation 
of a treaty is known as a ``compromissory clause.'' Bishop, William W., 
Jr. International Law. 3d ed. 1971, pp. 68-69. Under international law 
a state may not be compelled to enter into third-party dispute 
settlement and must thus consent to its use. A compromissory clause is 
a means of giving such consent. American Law Institute, Restatement 
(Third) of the Foreign Relations Law of the United States. 1987, 
Sec. 902, Comment e (hereafter cited as Rest. 3d). For a discussion of 
U.S. treaty practice involving compromissory clauses, see Noyes, John 
E. The Functions of Compromissory Clauses in U.S. Treaties. Virginia 
Journal of International Law, v. 34, 1994, p. 831 (hereafter cited as 
Noyes).
---------------------------------------------------------------------------
          Any disputes which may arise in giving effect to * * 
        * the present Treaty shall be referred to a 
        Conciliation Commission consisting of one 
        representative of the Government of the United Nation 
        concerned and one representative of the Government of 
        Italy, having equal status.
          [Provisions for appointment of a third member 
        omitted]
          * * * The decision of the majority of the members of 
        the Commission * * * shall be accepted by the parties 
        as definitive and binding.\13\
---------------------------------------------------------------------------
    \13\ Treaty of Peace with Italy, signed Feb. 10, 1947, Art. 83, 
Sec. 6, TIAS 1648, 4 Bevans 311. Details of augmented Commission 
membership and procedures in the event the initial two members are 
unable to agree have been omitted.

    During the period 1928-1930, the United States concluded a 
series of at least 25 bilateral arbitration treaties with 
foreign nations. The text of these treaties generally specified 
that special agreements would provide for the organization of 
special tribunals, define their powers, state questions at 
issue, and settle the terms of reference, and that the special 
agreements would require the advice and consent of the 
Senate.\14\ On the other hand, there have been numerous 
instances in which the Senate has approved treaties providing 
for submission of specific matters to arbitration and has left 
it to the President to manage appointment of the arbitrators 
and to determine the scope and form of the arbitration.\15\
---------------------------------------------------------------------------
    \14\ See, for example, the Arbitration Agreement with Norway of 
Feb. 20, 1929, 46 Stat. 2278, 10 Bevans 488. A list of 25 countries 
with citations to U.S. Arbitration treaties with them is provided in 
Whiteman, v. 12, 1970, pp. 1044 and 1045.
    \15\ For a list of 39 such instances, see Willoughby, W. The 
Constitutional Law of the United States. 2d ed. 1929, p. 543. Note also 
that the United States is a party to the Convention on the Recognition 
and Enforcement of Foreign Arbitral Awards, 21 U.S.T. 2517, TIAS 6997. 
The Senate gave its advice and consent to this agreement with 
declarations on Oct. 4, 1968.
---------------------------------------------------------------------------
    In addition, a recent program of bilateral investment 
treaties has included an investor-state disputes mechanism that 
gives U.S. investors the right to binding arbitration against a 
host state without involvement of the U.S. Government, through 
the International Center for the Settlement of Investment 
Disputes.\16\ Binding investor-state arbitration is also 
provided for in the investment chapter of the trilateral North 
American Free Trade Agreement (NAFTA).\17\
---------------------------------------------------------------------------
    \16\ For a discussion of investment treaties, see Chapter XI.
    \17\ North American Free Trade Agreement, entered into force Jan. 
1, 1994, Arts. 1115-1138, H.R. Doc. 103-159, v. 1, 103d Cong., 1st 
Sess., 1993, pp. 1109-1121.
---------------------------------------------------------------------------
    The World Trade Organization (WTO) Understanding on Rules 
and Procedures Governing the Settlement of Disputes,\18\ which 
provides for the resolution of disputes arising under WTO 
agreements \19\ and operates through a system of ad hoc 
panels,\20\ incorporates binding arbitration at two points in 
the dispute process. In the understanding, WTO Members agree to 
submit to binding arbitration in the following situations: (1) 
to determine the length of time within which a Member must 
comply with an adopted panel (and any Appellate Body) report, 
in the event the time period proposed by the Member is 
unacceptable and the disputing parties cannot otherwise agree 
on a deadline, and (2) to determine the level of trade 
retaliation, in the event a defending party has not complied 
with its obligations with the agreed-upon compliance period, 
the WTO has authorized the prevailing party to retaliate, and 
the defending party objects to the level of suspension of trade 
concessions or obligations proposed by the prevailing party or 
claims that certain principles and procedures in the Dispute 
Settlement Understanding were not followed.\21\ In the latter 
proceeding, the arbitrator is to determine whether the level of 
the suspended WTO concessions or other obligations is 
equivalent to the level of nullification or impairment of WTO 
benefits. The Dispute Settlement Understanding also allows WTO 
Members to submit a dispute to arbitration upon mutual 
agreement of the disputing parties.\22\
---------------------------------------------------------------------------
    \18\ Understanding on Rules and Procedures Governing the Settlement 
of Disputes (Dispute Settlement Understanding), entered into force Jan. 
1, 1995, H.R. Doc. 103-316, v. 1, 103d Cong., 2d Sess., 1994, pp. 1654-
1678. Congress approved the Dispute Settlement Understanding in sec. 
101 of the Uruguay Round Agreements Act, Public Law 103-365, 108 Stat. 
4814.
    \19\ All WTO Members must be a party to the Dispute Settlement 
Understanding and are under an obligation ``to have recourse to, and 
abide by, the rules and procedures'' of the Understanding when they 
seek redress of WTO violations and other nullification and impairment 
of benefits, and not to take certain unilateral measures in WTO-related 
trade disputes. Dispute Settlement Understanding, Arts. 1:1, 23. WTO 
Members ``recognize that [the Understanding] * * * serves to preserve 
the rights and obligations of Members under the covered agreements, and 
to clarify the existing provisions of those agreements in accordance 
with customary rules of interpretation of public international law.'' 
Ibid., Art. 3:2. See generally Noyes, at 883-890.
    \20\ A panel is to issue a report on the disputed measure, which is 
subject to appeal by a disputing party to a standing Appellate Body. 
Once the panel, and any Appellate Body report is adopted by the WTO 
Members, the losing party must present a compliance plan to the WTO and 
is expected to comply with its obligations within a reasonable period 
of time; if the losing party does not do so, it is required to enter 
into negotiations over compensation with the prevailing party, if the 
latter so requests, or it may be subject to retaliation. The 
Understanding contains a negative consensus rule for certain decisions 
made by the WTO during a dispute proceeding aimed at strengthening the 
process and facilitating compliance with WTO obligations. The rule 
applies to the establishment of panels, the adoption of panel and 
Appellate Body Reports, and where compliance with adopted reports is 
not forthcoming and, if requested by the prevailing party in the 
dispute, authorization for that party to retaliate (that is, withdraw a 
WTO-covered trade concession or obligation owed the defending party). 
Under the rule, the WTO will take the proposed action unless all WTO 
Members present the meeting at which it is being considered vote not to 
do so. Ibid., Arts. 6, 12, 16-17, 21-22.
    \21\ Ibid., Arts. 21:3(c), 22:6.
    \22\ Ibid., Art. 25.
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                          judicial settlement

    Judicial settlement, as a mechanism for settling treaty 
disputes, differs from arbitration in the method of selecting 
the members of the judicial organ involved. In arbitration 
proceedings, the panel of judges is chosen by agreement of the 
parties, while ``judicial settlement presupposes the existence 
of a standing tribunal with its own bench of judges and its own 
rules of procedure which parties to a dispute must accept.'' 
\23\
---------------------------------------------------------------------------
    \23\ Schwarzenberger, p. 241.
---------------------------------------------------------------------------
    An example of a U.S. decision to submit a dispute to 
binding judicial settlement is found in the 1979 United States-
Canadian Maritime Boundary Dispute Settlement Agreement.\24\ 
Under the terms of this treaty, the parties agreed to submit 
their boundary dispute over delimitation of the Gulf of Maine 
Area to a chamber of the International Court of Justice 
pursuant to Article 40 of the Statute of the Court. The Senate 
granted its advice and consent to this agreement with 
amendments, and the treaty was proclaimed by President Reagan 
on February 15, 1982. The dispute was then submitted, and the 
chamber rendered a decision on October 12, 1984.
---------------------------------------------------------------------------
    \24\ United States-Canada Maritime Boundary; Dispute Settlement 
Treaty with Agreements, signed March 29, 1979, 33 U.S.T. 2797, TIAS 
10204.
---------------------------------------------------------------------------
    The Vienna Convention on the Law of Treaties provides for 
recourse to judicial settlement in treaty disputes relating to 
whether or not a particular norm of international law is 
superior or peremptory in character ( jus cogens). If 
resolution of such disputes is not reached within 12 months 
after formal notification of the dispute to the other party, 
any party may invoke the jurisdiction of the International 
Court of Justice unless the parties agree to submit to 
arbitration.\25\ If the Court subsequently reaches a decision, 
the parties are required by the U.N. Charter \26\ to comply 
with it. However, the ability of the Court to have its 
decisions enforced is limited to enforcement by the Security 
Council.\27\ The U.N. Charter leaves enforcement of the Court's 
decisions in such instances to a political decision of the 
council, which is subject to veto by any of the five permanent 
members, including the United States.\28\
---------------------------------------------------------------------------
    \25\ Vienna Convention, Art. 66(a).
    \26\ U.N. Charter, Art. 94.
    \27\ Ibid., Arts. 39-52.
    \28\ Ibid., Arts. 39-52, 23, 27.
---------------------------------------------------------------------------
    Nations may also agree to submit disputes relating to 
treaty interpretation to the jurisdiction of the International 
Court of Justice before specific disputes actually arise. The 
Statute of the International Court (to which the United States 
became a party ipso facto when it became a member of the United 
Nations) provides that states may at any time declare, under 
Article 36(2) of the Statute, that they recognize the 
compulsory jurisdiction of the court in legal disputes in a 
variety of areas including ``the interpretation of a treaty.'' 
In practice, numerous treaties to which the United States is a 
party and to which the Senate has consented contain provisions 
for submission of disputes to the International Court of 
Justice.\29\ In addition, prior to 1985, when the United States 
terminated its Article 36(2)(b) declaration,\30\ the United 
States subscribed to the Court's compulsory jurisdiction 
subject to a Senate reservation known as the ``Connally 
amendment.'' The Connally amendment exempted from the Court's 
compulsory jurisdiction any matter ``essentially within the 
domestic jurisdiction of the United States of America as 
determined by the United States of America.'' \31\
---------------------------------------------------------------------------
    \29\ Examples include the 1969 Consular Convention with Belgium 
(Art. 46), 25 U.S.T. 41, TIAS 7775, and the 1971 Convention on 
Psychotropic Substances (Art. 31), which entered into force for the 
United States on July 15, 1980. TIAS 9725. As of April 8, 1992, the 
Senate had approved 42 multilateral treaties containing provisions for 
submission of disputes to the International Court of Justice. U.S. 
Senate. Consular Conventions, Extradition Treaties, and Treaties 
Relating to Mutual Legal Assistance in Criminal Matters (MLATS), April 
8, 1992, S. Hrg. 102-674, p. 17. In some cases, the Senate has added a 
condition concerning submissions of disputes to the International 
Court. As noted by one commentator, however, the United States ``is 
party to very few treaties entering into force for the United States 
since 1980 that contain compromissory clauses referring disputes to the 
ICJ.'' Noyes, p. 869, n. 170.
    \30\ The United States withdrew its declaration accepting the 
Court's compulsory jurisdiction on October 7, 1985, in response to the 
Court's decision to adjudicate Nicaragua's suit against the United 
States. Letter from Secretary of State George P. Shultz to U.N. 
Secretary, October 7, 1985. International Legal Materials, v. 24, 1985, 
p. 1742.
    \31\ The Connally amendment is a condition of ratification to U.S. 
acceptance of the International Court's compulsory jurisdiction. It is 
contained in the Senate's resolution of advice and consent on the U.S. 
declaration of adherence to the Court's jurisdiction. See S. Res. 196, 
79th Cong., 2d Sess., Congressional Record, v. 92, Aug. 1-2, 1946, pp. 
10621, 10692, 10705-10706, for the text of S. Res. 196 as finally 
adopted. For the text of the Presidential declaration incorporating S. 
Res. 196, of Aug. 2, 1946, see 61 Stat. 1218, TIAS No. 1598 (1946). S. 
Res. 196 was agreed to by a vote of 60 yeas, 2 nays and 34 not voting.
---------------------------------------------------------------------------
    The Connally amendment further qualified U.S. acceptance of 
the Court's compulsory jurisdiction in certain instances when 
disputes involving multilateral treaties were involved. Under 
the provisions of the amendment, U.S. unqualified acceptance of 
the Court's compulsory jurisdiction did not apply to:
          (c) Disputes arising under a multilateral treaty, 
        unless, (1) all Parties to the treaty, affected by the 
        decision are also parties to the case before the Court, 
        or (2) the United States of America specifically agrees 
        to jurisdiction.\32\
---------------------------------------------------------------------------
    \32\ S. Res. 196, supra note 30. This is referred to as the 
``Vandenberg amendment,'' but it is generally included when the term 
``Connally amendment'' is used.

    This Senate condition of ratification may be important in 
relation to the Vienna Convention because the convention 
provides that disputes involving peremptory norms of 
international law be submitted to the compulsory jurisdiction 
of the International Court. In contrast, the Connally amendment 
specifically reserved for the United States the option of not 
submitting treaty interpretation disputes to the International 
Court insofar as such disputes might involve matters 
essentially within the domestic jurisdiction of the United 
States as determined by the United States.
    The Vienna Convention has not yet been ratified by the 
United States and remains pending before the Senate Foreign 
Relations Committee. But should the Senate give its advice and 
consent, unqualified Senate approval of its dispute settlement 
mechanisms would thus appear to broaden significantly U.S. 
acceptance of the Court's jurisdiction. Some might consider 
this to be contrary to the spirit of the Connally Reservation 
which specifically attempted to preserve for the United States 
the option of disputes concerning ``the interpretation of a 
treaty'' insofar involve ``matters which are essentially within 
the domestic jurisdiction in any further consideration of the 
Vienna Convention.\33\
---------------------------------------------------------------------------
    \33\ The Connally amendment has been the subject of much 
controversy. On May 20, 1974, the Senate passed a sense of the Senate 
resolution which bears on the Connally amendment. The resolution, 
advisory in nature, expressed the sense of the Senate that the 
President should undertake negotiations with other countries that have 
qualified their acceptance of the compulsory jurisdiction of the 
International Court to have each party agree to accept the Court's 
jurisdiction without reservation. See Rague, M. The Reservation of 
Power and the Connally Amendment. New York University Journal of 
International Law and Politics, v. 11, 1978, pp. 350-355. The executive 
branch position on the Connally Reservation has been that ``[t]he 
Department of State is on record that the Reservation does not provide 
the United States with any substantial benefit, and every 
Administration since that of President Eisenhower has urged its 
repeal.'' U.S. Department of State. Reform and Restructuring of the 
U.N. System, Selected Documents No. 8, 1978, pp. 13-16, and U.S. 
Department of State. Digest of United States Practice in International 
Law 1978. 1980, p. 1567.
---------------------------------------------------------------------------
    In giving its advice and consent to the Genocide Convention 
providing for the submission of disputes to the International 
Court of Justice, the Senate added a condition requiring the 
specific consent of the United States. The condition specified:
          (1) That with reference to Article IX of the 
        Convention, before any dispute to which the United 
        States is a party may be submitted to the jurisdiction 
        of the International Court of Justice under this 
        article, the specific consent of the United States is 
        required in each case.\34\
---------------------------------------------------------------------------
    \34\ Congressional Record, v. 132, Feb. 19, 1986, p. 2349.
---------------------------------------------------------------------------

                       B. Rules of Interpretation

    The dispute settlement procedures established by the Vienna 
Convention also raise another issue of importance to the 
Senate, namely, that the Vienna Convention provides rules for 
treaty interpretation which differ from those traditionally 
applied by the U.S. courts. This may be important to the extent 
that the Connally Reservation may have been intended not only 
to qualify compulsory U.S. submission to an international 
tribunal (that is, to foreign judges), but also to avoid 
compulsory submission to that tribunal's law.\35\
---------------------------------------------------------------------------
    \35\ Note that the issue of whether or not to submit to foreign 
law, as well as to foreign judges, was one of the main issues in 
contentions against repeal of the Connally amendment. See Stromberg, 
Ruth, and Zafren, Daniel Hill. The Connally Amendment: The United 
States' Self-Judging Reservation to the Compulsory Jurisdiction of the 
International Court of Justice. Library of Congress, Legislative 
Reference Service, Oct. 31, 1968, p. 8.
---------------------------------------------------------------------------
    The Vienna Convention codifies existing international rules 
of treaty interpretation,\36\ which differ from the rules of 
treaty interpretation as applied by U.S. courts.\37\ In 
essence, the convention stresses ``the dominant position of the 
text itself in the interpretative process,'' \38\ whereas U.S. 
courts are more apt to permit supplementary means of 
interpretation if necessary.\39\
---------------------------------------------------------------------------
    \36\ Vienna Convention, Arts. 31-32.
    \37\ Rest. 3d, Sec. 325, Comment g.
    \38\ Rosenne, Shabtai. Interpretation of Treaties in the 
Restatement and the International Law Commission's Draft Articles: A 
Comparison. Columbia Journal of Transnational Law, v. 5, 1966, p. 221.
    \39\ Rest. 3d, Sec. 325, Comment g and Reporters' Note 1.
---------------------------------------------------------------------------
    The Vienna Convention provides that a treaty be 
``interpreted in good faith in accordance with the ordinary 
meaning to be given to the terms of the treaty in their context 
and in the light of its object and purpose.'' \40\ The context 
of the treaty for interpretation purposes is generally limited 
to preambles, annexes, agreements relating to the agreement, 
and subsequent agreements which relate to the interpretation of 
the treaty, or subsequent practice which establishes agreement 
of the parties regarding interpretations.\41\ Supplementary 
means of interpretation (such as the preparatory work of the 
treaty) are not allowed under the convention unless application 
of the earlier rule would lead to a manifestly absurd or 
unreasonable result.\42\ Thus, except for unusual 
circumstances, the convention would exclude as aids to 
interpretation such items as the preparatory work of the treaty 
and the circumstances of its conclusion.\43\
---------------------------------------------------------------------------
    \40\ Vienna Convention, Art. 31.
    \41\ Ibid.
    \42\ Ibid., Art. 32.
    \43\ See Kearney, Richard D. and Dalton, Robert E. The Treaty on 
Treaties. American Journal of International Law, v. 64, 1970, p. 520.
---------------------------------------------------------------------------
    In contrast, current U.S. application of international law 
in treaty interpretation aims at ascertaining the meaning 
intended by the parties in the light of all relevant factors. 
Consequently, U.S. courts have not been hesitant to react to 
travaux preparatoires.\44\
---------------------------------------------------------------------------
    \44\ Rest. 3d, Sec. 325, Reporters' Note 1.
---------------------------------------------------------------------------
    Relevant factors may include the ordinary meaning of words 
in context, the title of the agreement and statements of 
purpose, the circumstances of negotiation, negotiating history, 
unilateral statements of understanding, subsequent practice, 
change of circumstances, compatibility with international law 
and general principles of law, and differences between 
languages.\45\
---------------------------------------------------------------------------
    \45\ Ibid., Sec. 325, Comments and Reporters' Notes.
---------------------------------------------------------------------------
    Furthermore, when interpreting a treaty under domestic law, 
U.S. courts include as relevant matters indications of U.S. 
intent in making the agreement,\46\ as well as the executive 
branch's interpretation of the agreement's meaning.\47\ U.S. 
courts generally assign ``great weight'' to such executive 
branch interpretation of an international agreement.\48\ Thus, 
for example, in 1933, the U.S. Supreme Court in deciding 
whether a particular offense was extraditable under the 
Extradition Convention with Great Britain of 1899, noted the 
treaty's construction by the executive branch as a factor to be 
considered in reaching its decision to extradite the 
appellant.\49\ The U.S. Supreme Court noted, similarly, in 1961 
that ``while courts interpret treaties for themselves, the 
meaning given them by the departments of government 
particularly charged with their negotiation and enforcement is 
given great weight.'' \50\
---------------------------------------------------------------------------
    \46\ For example, the legislative history of a Senate reservation 
to a treaty might be considered in ascertaining its intent.
    \47\ Rest. 3d, Sec. 326(2).
    \48\ Ibid., Sec. 326(2), Reporters' Note 4.
    \49\ Factor v. Laubenheimer, 290 U.S. 276, 294-295 (1933).
    \50\ Kolovrat v. Oregon, 336 U.S. 187 (1961). For recent examples 
of judicial treaty interpretation, see El Al Israel Airlines, Ltd. v. 
Tsui Yuan Tseng, 525 U.S. 155, 167-174 (1999); Zicherman v. Korean Air 
Lines Co. Ltd., 516 U.S. 217, 226-228 (1996), Sale v. Haitian Centers 
Council, Inc., 509 U.S. 155, 177-188 (1993), Itel Containers 
International Corp. v. Huddleston, 507 U.S. 60, 64-69 (1993), and 
United States v. Stuart, 489 U.S. 353 (1989).
---------------------------------------------------------------------------
    The issue of treaty re-interpretation by the executive 
branch after Senate advice and consent and subsequent 
ratification by the parties has been an item of recent interest 
to the Senate. The Antiballistic Missile (ABM) Treaty between 
the United States and the former Soviet Union was approved by 
the Senate in 1972 and subsequently ratified. The treaty 
restricted the parties' use of ABM systems. Subsequently, in 
1985, the Reagan Administration sought to ``reinterpret'' the 
treaty to permit the development of mobile space-based 
antiballistic systems.\51\ The Senate Foreign Relations 
Committee responded by proposing S. Res. 167, the ABM Treaty 
Interpretation Resolution.\52\ Although never acted on by the 
Senate, the resolution focused attention on the problem of 
reinterpretation. In effect, it concluded that the only 
interpretation of a treaty that is valid and constitutional is 
that understood by the Senate at the time of its formal 
approval. Specifically, Section (2) of the Resolution provided 
as follows:
---------------------------------------------------------------------------
    \51\ The Clinton Administration announced in 1993 that it had 
returned to the traditional interpretation that the ABM Treaty 
prohibits the development, testing, and deployment of sea-based, space-
based, and mobile land-based ABM systems and components without regard 
for technology utilized. Letter of July 13, 1993, from Thomas Graham, 
Jr., Acting Director of the U.S. Arms Control and Disarmament Agency, 
to Senator Pell. See Appendix 10.
    \52\ See U.S. Senate. Committee on Foreign Relations. The ABM 
Interpretation Resolution. S. Rept. 100-164, 100th Cong., 1st Sess., 
1987.
---------------------------------------------------------------------------
          (2) Under the United States Constitution--
                  (A) a treaty is properly interpreted in good 
                faith in accordance with the ordinary meaning 
                to be given its terms in light of their context 
                and in light of its object and purpose;
                  (B) the meaning is to be determined in light 
                of what the Senate understands the treaty to 
                mean when it gives its advice and consent;
                  (C) the understanding of the Senate is 
                manifested by any formal expression of 
                understanding by the Senate, as well as by 
                other evidence of what the Senate understood 
                the treaty to mean, including Senate approval 
                or acceptance of, or Senate acquiescence in, 
                interpretations of the treaty by the Executive 
                branch communicated to the Senate;
                  (D) the Senate's understanding of a treaty 
                cannot be informed by other matters of which it 
                is not aware, such as private statements made 
                during the negotiations that were not 
                communicated to the Senate; and
                  (E) any subsequent practice between the 
                Parties in the application of the treaty is to 
                be taken into account in interpreting the 
                treaty.

    Subsequently, in a 1988 move designed to preempt any future 
administration reinterpretation of the INF Treaty,\53\ the 
Senate attached conditions to the resolution of ratification 
designed to bind the President to the interpretation understood 
by the Senate of the provisions of the treaty at the time of 
its consent. The text of the relevant condition stated:
---------------------------------------------------------------------------
    \53\ Treaty Between the United States of America and the Union of 
Soviet Socialist Republics on the Elimination of Intermediate-Range and 
Shorter-Range Missiles, Treaty Doc. 100-11.
---------------------------------------------------------------------------
          (1) Provided, that the Senate's advice and consent to 
        ratification of the INF Treaty is subject to the 
        condition, based on the Treaty Clauses of the 
        Constitution, that--
                  (A) the United States shall interpret the 
                Treaty in accordance with the common 
                understanding of the Treaty shared by the 
                President and the Senate at the time the Senate 
                gave its advice and consent to ratification;
                  (B) such common understanding is based on:
                          (i) first, the text of the Treaty and 
                        the provisions of this resolution of 
                        ratification, and
                          (ii) second, the authoritative 
                        representations which were provided by 
                        the President and his representatives 
                        to the Senate and its Committees, in 
                        seeking Senate consent to ratification, 
                        insofar as such representations were 
                        directed to the meaning and legal 
                        effect of the text of the Treaty; and
                  (C) the United States shall not agree to or 
                adopt an interpretation different from that 
                common understanding except pursuant to Senate 
                advice and consent to a subsequent treaty or 
                protocol, or the enactment of a statute; and
                  (D) if, subsequent to ratification of the 
                Treaty, a question arises as to the 
                interpretation of a provision of the Treaty on 
                which no common understanding was reached in 
                accordance with paragraph (2), that provision 
                shall be interpreted in accordance with 
                applicable United States law.\54\
---------------------------------------------------------------------------
    \54\ Congressional Record, v. 134, May 27, 1988, p. 12849. See also 
discussion of treaty interpretation in Chapter VI.

    The Senate affirmed ``the applicability to all treaties of 
the constitutionally-based principles of treaty interpretation 
set forth in condition (1) in the resolution of ratification 
approved by the Senate on May 27, 1988, with respect to the INF 
Treaty'' in declarations in the Resolutions of Ratification of 
the Treaty on Conventional Armed Forces in Europe (CFE) in 
1991, the START I Treaty in 1992, the Open Skies Treaty in 
1993, the Start II Treaty in 1996, and the Chemical Weapons 
Convention and the Flank Document Agreement to the CFE Treaty 
in 1997.\55\ Since 1997, the Senate has added a modified 
version of this condition to its resolution of ratification on 
all treaties that have come before it.\56\
---------------------------------------------------------------------------
    \55\ CFE Treaty, Exec. Rept. 102-22, p. 81; START I Treaty, Exec. 
Rept. 102-53, pp. 96, 101-102; Open Skies Treaty, Exec. Rept. 103-5, p. 
16; START II Treaty, Exec. Rept. 104-10, p. 46; Chemical Weapons 
Convention, 143 Congressional Record, April 24, 1997, p. S3656 (daily 
ed.); and Flank Document Agreement, Exec Rept. 105-1, pp. 22-24.
    \56\ For further discussion, see Chapter VI, under ``Condition 
Regarding Treaty Interpretation.''
---------------------------------------------------------------------------

                       C. Obligation to Implement

    Disputes involving treaties commonly center on questions 
relating to a party's implementation of its obligations. A 
question that may be raised under U.S. law is whether or not 
Congress has a duty to implement a treaty which is in force 
internationally, but which requires additional legislation or 
implementation or an appropriation of funds to give effect to 
obligations assumed internationally by the United States.
    When implementation of a treaty requires domestic 
legislation or an appropriation of funds, only the Congress can 
provide them.\57\ The issue of the extent of the obligation of 
Congress to appropriate money arose with debate on the Jay 
Treaty, the first treaty concluded under the Constitution. In 
the 1796 debates on appropriations for the treaty, Treasury 
Secretary Hamilton argued that as treaties are the law of the 
land, Congress was obligated to appropriate the money to 
implement them. Members of Congress, notably James Madison, 
maintained that the House was free to decide whether or not to 
approve appropriations regardless of any treaty obligations. 
The House eventually approved the request for funds, but 
appended to its approval a stipulation that it was free not to 
approve such requests in the future.\58\ The House manual notes 
subsequent occasions when the House maintained the position 
that a treaty must depend on a law for its execution of 
stipulations that relate to subjects constitutionally entrusted 
to Congress.\59\
---------------------------------------------------------------------------
    \57\ Article I, Section 9 of the U.S. Constitution provides that 
``no money shall be drawn from the Treasury, but in consequence of 
appropriations made by law.''
    \58\ Byrd, Elbert M. Jr. Treaties and Executive Agreements in the 
United States: Their Separate Roles and Limitations. 1960, pp. 35-39.
    \59\ U.S. Congress. House. Constitution, Jefferson's Manual, and 
Rules of the House of Representatives of the United States. H.R. Doc. 
104-272, Sec. 596, 104th Cong., 2d Sess.
---------------------------------------------------------------------------
    Although the Congress has usually insisted on the right of 
choice not to appropriate funds to implement a perfected 
treaty, historically the funds have generally been forthcoming. 
Exceptions do exist, however, notably past congressional 
reluctance to appropriate the full amounts of money assessed 
for U.S. contributions to the United Nations.\60\
---------------------------------------------------------------------------
    \60\ See generally Bite, Vita. U.S. Withholding and Arrearages to 
the United Nations Regular Budget: Issues for Congress. Congressional 
Research Service Report 91-515F, June 19, 1991; and Bite, Vita. U.N. 
System Funding: Congressional Issues. Congressional Research Service 
Issue Brief for Congress IB86116 (updated December 14, 2000).
---------------------------------------------------------------------------
    The extent of congressional obligation to implement a 
treaty under U.S. law has not been resolved in principle.\61\ 
According to an often-cited authority, Congress has generally 
responded ``to a sense of duty to carry out what the treaty-
makers promised, to a reluctance to defy and confront the 
President (especially after he can no longer retreat), to an 
unwillingness to make the U.S. system appear undependable, even 
ludicrous. But the independence of the legislative power 
(subject only to the Presidential veto as provided in the 
constitution) has given Congress opportunities to interpret the 
need for implementation and to shape and limit it in important 
details; Congress has not always given the President exactly 
the laws he asked for or as much money as he said a treaty 
required.'' \62\
---------------------------------------------------------------------------
    \61\ Henkin, Louis. Foreign Affairs and the United States 
Constitution. 2d ed. 1996, p. 205 (hereafter cited as Henkin). However, 
failure to implement an internationally perfected treaty would 
constitute a violation of obligations assumed by the United States 
under international law. See Memorandum of April 12, 1976, by Monroe 
Leigh, Legal Adviser, Department of State, as quoted in U.S. Department 
of State. Digest of U.S. Practice in International Law 1976. 1977, p. 
221.
    \62\ Henkin, pp. 205-206.
---------------------------------------------------------------------------
    With regard to funding U.S. international obligations, 
Congress, since 1971, has made a number of cuts in 
appropriations for the multilateral development banks. In 1971, 
the administration requested $912.85 million and received only 
$455 million. Although the level of such cuts has varied, they 
have occurred consistently on an annual basis. For fiscal year 
1993, the administration requested $1,785.5 million, the 
Congress appropriated only $1,583.5 million.\63\ This included 
contributions which were less than the administration had 
requested for some multilateral programs and more than the 
administration had requested for others.\64\
---------------------------------------------------------------------------
    \63\ Public Law 102-266, signed April 2, 1992. For a table and 
breakdown of the cuts see Sanford, Jonathan E. U.S. Foreign Policy and 
Multilateral Development Banks. 1982, pp. 126-129 (hereafter cited as 
Sanford 1982).
    \64\ See Sanford, Jonathan E. Multilateral Development Banks: U.S. 
Contributions FY 1990-2001. CRS Report for Congress RS 20792.
---------------------------------------------------------------------------
    Among other things, these events may be seen as evidence of 
the Congress' desire to make clear its right and power to 
specify commitment levels and to make appropriations cuts even 
after approving international agreements.\65\ For example, in 
1974 Congress enacted legislation authorizing the Secretary of 
the Treasury ``to pledge on behalf of the United States to 
pay'' $1.5 billion in four equal annual installments, as the 
U.S. share of the fourth replenishment to the International 
Development Association. In a letter to Treasury Secretary 
William Simon, however, the Senate Appropriations Committee 
stressed that Congress ``was not committed to any given funding 
level until that figure is actually appropriated.'' After the 
administration nonetheless filed papers with the World Bank 
formally committing the United States to an agreement to pay 
this amount,\66\ Congress responded by cutting by $55 million 
the first U.S. payment to the International Development 
Association in what reportedly was an attempt by Congress to 
make clear its dissatisfaction over the commitment issue.\67\ 
Beginning in 1977, Congress had stipulated in its authorization 
acts that the U.S. Government could not make any formal 
commitment until the necessary appropriations legislation was 
enacted. As a recent example, Congress in 1997 required the 
Secretary of the Treasury to obtain the appropriation prior to 
making final commitment for the contribution to the financial 
institution for its eleventh replenishment on behalf of the 
United States.\68\
---------------------------------------------------------------------------
    \65\ For a discussion of the commitment issue generally, see 
Sanford 1982, pp. 152-179.
    \66\ Sanford 1982, p. 171. For the text of the Appropriations 
Committee letter, see U.S. Senate. Foreign Assistance and Related 
Programs Appropriation Bill, 1976. S. Rept. 94-704, 94th Cong., 2d 
Sess., 1976, pp. 165-167.
    \67\ U.S. Congress, House, Foreign Assistance and Related Programs 
Appropriations Bill, 1976, H. Rept. 94-857, 94th Cong., 2d Sess., 1976, 
pp. 50-51. The last portion of the $55 million was ultimately restored 
in fiscal year 1981, well after the schedule provided for in the 
original commitment.
    \68\ Public Law 105-118, Sec. 560(a), 111 Stat. 2425, 22 U.S.C. 
Sec. 284s note (Supp. IV 1999). In 1999, however, Congress, without 
using the appropriations condition employed in earlier years, 
authorized the Secretary of the Treasury, in order ``to fulfill 
commitments of the United States * * * [to] contribute on behalf of the 
United States * * * to the twelfth replenishment of the International 
Development Association''; at the same time, Congress authorized an 
appropriation of $2.41 billion for this purpose. Public Law 106-113, 
Appendix B--H.R. 3422, Sec. 594, 113 Stat. 1501A-122. In 1998, Congress 
added an appropriations condition to authority granted to the United 
States Governor of the International Monetary Fund to consent to an 
increase in the U.S. quota in the Fund equivalent to 10,622,500,000 
Special Drawing Rights. 22 U.S.C. Sec. 286e-1m (Supp. IV 1999), as 
added by Public Law 105-277, Div. A, Sec. 101(d) [title VI, Sec. 608], 
112 Stat. 2681-224.
---------------------------------------------------------------------------
    The Senate may also use its advice and consent to a treaty 
as an opportunity to make clear that appropriation of funds 
will be made subject to the appropriations process on a year-
to-year schedule. In the case of the Treaty of Friendship and 
Cooperation Between the United States and Spain,\69\ the 
President had promised security assistance to Spain over a 5-
year period in exchange for U.S. base rights. The Senate, 
however, conditioned its advice and consent to the treaty on a 
declaration intended to emphasize that appropriation of the 
promised funds could only be done by statutory authorization 
and not by treaty alone.\70\ The pertinent language of the 
Senate declaration involved reads:
---------------------------------------------------------------------------
    \69\ Treaty of Friendship and Cooperation between the United States 
and Spain, signed Jan. 24, 1976, entered into force Sept. 21, 1976, 27 
U.S.T. 3005, TIAS 8360.
    \70\ U.S. Congress, Senate, Treaty of Friendship and Cooperation 
with Spain, S. Exec. Rept. 94-25, 94th Cong., 2d Sess., p. 7. The 
language in this report specified that the committee intends ``to make 
it clear that funds will be made available to carry out the Treaty from 
year to year through the normal appropriations process, including prior 
authorizations procedures'' and * * * ``intends to deal with funding of 
the Treaty commitments for foreign assistance and military sales in the 
regular foreign assistance authorization and appropriation and 
legislation.'' Excerpts from the committee report are also found in 
U.S. Department of State. Digest of United States Practice in 
International Law 1976. 1977, pp. 232-233.
---------------------------------------------------------------------------
        the sums referred to in * * * the Treaty, shall be made 
        available for obligation through the normal procedures 
        of the Congress, including the process of prior 
        authorization, and annual appropriations shall be 
        provided to Spain in accordance with the provisions of 
        foreign assistance and related legislation.\71\
---------------------------------------------------------------------------
    \71\ See S. Exec. Rept. 94-25, and Digest of United States Practice 
in International Law 1976. 1977, p. 232.

    Congress, in the exercise of its appropriation power, can 
also earmark funds for a specific purpose, thereby preventing 
their use for other purposes. The record suggests, however, 
that this has often been held impermissible under the rules of 
multilateral agencies. One example involving funds to implement 
a treaty is found in the 1975 fiscal year appropriations for 
the Inter-American Development Bank. In that year, Congress 
earmarked $50 million of the bank's concessional aid 
specifically for loans to cooperative institutions. The bank, 
however, refused to accept the funds on the ground that its 
charter prohibits acceptance of conditional contributions to 
its regular loan accounts. Congress subsequently rescinded the 
earmarking requirements in its 1976 fiscal year appropriations 
legislation.\72\ In another instance, legislation in October 
1978 prohibited the use of U.S. assessed contributions to the 
United Nations for financing of technical assistance to other 
countries.\73\ President Carter, when signing the bill into 
law, voiced a strong opposition to those restrictions saying 
that ``if allowed to stand, this [congressional] action would 
cause the United States to violate its treaty obligations to 
support the organizations of the United Nations system.'' \74\
---------------------------------------------------------------------------
    \72\ U.S. Congress. Senate. Foreign Assistance and Related Agencies 
Appropriations Bill, 1975. S. Rept. 94-39, 94th Cong., 1st Sess., 1975, 
pp. 151-155 and U.S. Congress. Senate, Foreign Assistance and Related 
Agencies Appropriations Bill, 1976. S. Rept. 94-704, 94th Cong., 2d 
Sess. 1976, pp. 161-162. See also Sanford, Jonathan. U.S. Policy toward 
the Multilateral Development Banks: The Role of Congress. George 
Washington Journal of International Law and Economics, v. 22, 1988, pp. 
49-57.
    \73\ The Department of State, Justice and Commerce, the Judiciary, 
and Related Agencies Appropriations Act, 1979, Public Law 95-431, 92 
Stat. 1021.
    \74\ For the text of the President's statements, see U.S. 
Department of State. Digest of United States Practice in International 
Law 1978. pp. 136-137.
---------------------------------------------------------------------------
    Another method by which Congress has attempted to use the 
appropriations power to influence treaty implementation is 
through sense of the Congress resolutions. Congress has used 
such resolutions to indicate its views about reasonable funding 
required to give effect to a treaty. In 1977 and 1978, Congress 
passed legislation specifying the U.S. share in future 
multilateral development bank funding plans.\75\ In such 
instances, by specifying in advance the limits of its intent to 
commit funds, the Congress hoped to reduce the possibility of 
future congressional-executive branch friction over the issue.
---------------------------------------------------------------------------
    \75\ See Foreign Assistance and Related Programs Appropriations 
Act, 1978, Public Law 95-148, 91 Stat. 1238, for the sense of the 
Senate on future U.S. contributions to the international financial 
institutions. (22 U.S.C. 262c note). See Foreign Assistance and Related 
Programs Appropriations Act, 1979, Public Law 95-481, 92 Stat. 1591, 
for the sense of the Congress on such funding. Note that it is not 
unusual for the executive branch to negotiate and sign agreements 
``subject to the availability of funds.''
---------------------------------------------------------------------------
    More recently, Congress has called for legislative-
executive consultation prior to and during international 
negotiations leading up to agreements involving funds. In 1981, 
Congress added Title XII to the International Financial 
Institutions Act, which states:
        Title XII--Congressional Consultations \76\
---------------------------------------------------------------------------
    \76\ 22 U.S.C. 262g-3. International Financial Institutions Act, 
Public Law 95-118, as amended. Title XII was added by sec. 1361(b) of 
Public Law 97-35.
---------------------------------------------------------------------------
        Sec. 1201. The Secretary of the Treasury or his 
        designee shall consult with the Chairman and the 
        Ranking Minority Member of--
                  (1) the Committee on Banking, Finance, and 
                Urban Affairs of the House of Representatives, 
                the Committee on Appropriations of the House of 
                Representatives, and the appropriate 
                subcommittee of each such committee, and
                  (2) the Committee on Foreign Relations of the 
                Senate, the Committee on Appropriations of the 
                Senate, and the appropriate subcommittee of 
                each such committee, for the purpose of 
                discussing the position of the executive branch 
                and the views of the Congress with respect to 
                any international negotiations being held to 
                consider future replenishments or capital 
                expansions of any multilateral development bank 
                which may involve an increased contribution or 
                subscription by the United States. Such 
                consultation shall be made (A) not later than 
                30 days before the initiation of such 
                international negotiations, (B) during the 
                period in which such negotiations are being 
                held, in a frequent and timely manner, and (C) 
                before a session of such negotiations is held 
                at which the United States representatives may 
                agree to such a replenishment or capital 
                expansion.

    Similarly, the Foreign Operations Appropriation Act for 
Fiscal Year 1993 called for consultation prior to negotiations 
of agreements on funding multilateral financial institutions, 
stating the following:
        Prior Consultations on IFI Replenishments \77\
---------------------------------------------------------------------------
    \77\ Foreign Operations, Export Financing, and Related Programs 
Appropriations Act, 1993, Public Law 102-391.
---------------------------------------------------------------------------
          Sec. 537. Prior to entering into formal negotiations 
        on any replenishment for any international financial 
        institution or multilateral development bank, the 
        Secretary of the Treasury shall consult with the 
        Committees on Appropriations and appropriate 
        authorizing committees on the United States position 
        entering those negotiations.


 IX. AMENDMENT OR MODIFICATION, EXTENSION, SUSPENSION, AND TERMINATION 
           OF TREATIES AND OTHER INTERNATIONAL AGREEMENTS \1\
---------------------------------------------------------------------------

    \1\ Prepared by David M. Ackerman, Legislative Attorney.
---------------------------------------------------------------------------
                              ----------                              


                          A. Introduction \2\
---------------------------------------------------------------------------

    \2\ In determining the legal framework governing the subjects of 
this chapter, considerable reliance has been placed on the Vienna 
Convention on the Law of Treaties and the American Law Institute's 
Restatement (Third) of the Foreign Relations Law of the United States 
(1987). Some use has also been made of the edition of the Restatement 
published in 1965 and, on occasion, a tentative draft Restatement which 
contained the ALI's study drafts leading up to the revisions that 
appear in the Restatement (Third). Other major sources of information 
have been the various editions of the Department of State's Digest of 
International Law, notably the Hackworth, Whiteman, and Nash (Leich) 
editions, supplemented by the annual volumes that appeared from 1973-
1980 and the post-1988 notes on the ``Contemporary Practice of the 
United States Relating to International Law'' that appear in the 
quarterly American Journal of International Law. Reference has also 
been made to such treatises as Butler, Charles Henry. The Treaty-Making 
Power of the United States Senate. New York. The Banks Law Publishing 
Company, 1902; Crandall, Samuel B. Treaties: Their Making and 
Enforcement. Washington, D.C., John Byrne & Company, 1916; and Henkin, 
Louis. Foreign Affairs and the United States Constitution (2d ed.). 
Oxford. Clarendon Press, 1996. The Senate Foreign Relations Committee's 
biennial reports of its legislative activities have in recent years 
also provided helpful information with respect to legislative, 
principally Senate, developments. For summaries of the committee's 
activities in the 101st, 102d, 103d, and 104th Congresses, see S. Rept. 
102-30 (1991); S. Rept. 103-35 (1993); S. Rept. 104-21 (1995); and S. 
Rept. 105-8 (1997), respectively.
---------------------------------------------------------------------------
    The Constitution in clear and unmistakable terms settles 
only three matters with respect to treaties: \3\ it establishes 
the treaty power and identifies the treatymaking principals; 
\4\ it provides that self-executing treaties together with the 
Constitution and Federal laws constitute the supreme law of the 
land; \5\ and it withholds from the several states of the 
United States authority to enter into any treaty.\6\ On a whole 
range of concerns affecting the subject of treaties, including 
amendment or modification, extension, suspension, and 
termination, the Constitution is silent. More than 200 years of 
practice and judicial decisions have filled some of the 
mentioned and other gaps,\7\ but a number of treaty-related 
issues persist without definitive resolution.
---------------------------------------------------------------------------
    \3\ International law does not distinguish between agreements 
designated as treaties and other international agreements; all such 
agreements are denominated as treaties. In domestic law, however, the 
word ``treaty'' means an international agreement made by the President 
with the advice and consent of the Senate, two-thirds of the Senators 
present concurring. Other international agreements, also from a purely 
domestic perspective, include executive agreements pursuant to treaty, 
congressionally-authorized executive agreements, and sole executive 
agreements or executive agreements more or less exclusively based on 
Presidential powers. See Chapters III and IV.
    \4\ Article II, sec. 2, Clause 2.
    \5\ Article VI, sec. 2.
    \6\ Article I, sec. 10, Clause 1.
    \7\ For example, a treaty may not appropriate funds. Turner v. 
American Baptist Missionary Union, 24 F. Cas. 344 (No. 14, 251) (C.C. 
Mich. 1852). A treaty may not enact criminal law. Compare United States 
v. Hudson & Goodwin, 7 Cranch (11 U.S.) 32 (1812); United States v. 
Coolidge, 1 Wheat. (14 U.S.) 415 (1816); cf. The Estrella, 4 Wheat. (17 
U.S.) 298 (1819).
---------------------------------------------------------------------------
    Neither the records of the Proceedings at the 
Constitutional Convention \8\ nor those of the ratifying 
conventions in the states \9\ indicate the reasons for these 
glaring omissions. It may be, as one commentator has suggested 
in discussing treaty termination, that ``perhaps the Framers 
were concerned only to check the President in `entangling' the 
United States; `disentangling' is less risky and may have to be 
done quickly, and is often done piecemeal, or ad hoc, by 
various means and acts.'' \10\
---------------------------------------------------------------------------
    \8\ See, generally, Farrand, Max. The Records of Convention of 1787 
(4 vols.), Yale University Press (1966).
    \9\ See, generally, Elliot, Jonathan. The Debates in the Several 
State Conventions on the Adoption of the Federal Constitution (5 
vols.), Burt Franklin, New York (1888 ed.)
    \10\ Henkin, Louis. Foreign Affairs and the United States 
Constitution (2d ed.), Clarendon Press (1996), p. 212 (hereafter cited 
as Henkin).
---------------------------------------------------------------------------
    The constitutional treatment of other kinds of 
international agreements, designated executive agreements, is 
even more sparse than that of treaties. The Constitution does 
not expressly authorize the making of international agreements 
other than treaties, but executive agreements on a variety of 
subjects and of varying degrees of importance have been common 
from the earliest of times under the Constitution.\11\
---------------------------------------------------------------------------
    \11\ See Chapters III and IV.
---------------------------------------------------------------------------
    Although these domestic legal matters are of more than 
passing interest, they have not prevented the United States 
from amending or modifying, extending, suspending, and 
terminating international agreements. As a state in the 
international community of states, the United States is subject 
to international law, the law that governs relations between 
states.\12\ Accordingly, the United States, constitutional 
silence notwithstanding, is invested with powers which belong 
to all independent nations. In a celebrated passage from a 
landmark Supreme Court decision, this idea was expressed as 
follows:
---------------------------------------------------------------------------
    \12\ American Law Institute, Restatement (Third) of the Foreign 
Relations Law of the United States, vol. 1, American Law Institute 
Publishers (1987), Sec. 1 (hereafter cited as Restatement (Third) or 
Rest. 3d).
---------------------------------------------------------------------------
          It results that the investment of the Federal 
        government with the powers of external sovereignty did 
        not depend upon the affirmative grants of the 
        Constitution. The powers to declare and wage war, to 
        conclude peace, to make treaties, to maintain 
        diplomatic relations with other sovereignties, if they 
        had never been mentioned in the Constitution, would 
        have vested in the Federal government as necessary 
        concomitants of nationality. * * * As a member of the 
        family of nations, the right and power of the United 
        States in that field are equal to the right and power 
        of other members of the international family. 
        Otherwise, the United States is not completely 
        sovereign. The  power  to  acquire  territory  by  
        discovery  and  occupation * * *, the power to expel 
        undesirable aliens * * *, the power to make such 
        international agreements as do not constitute treaties 
        in the constitutional sense * * *, none of which is 
        expressly affirmed by the Constitution, nevertheless 
        exist as inherently inseparable from the conception of 
        nationality. This the court recognized, and * * * found 
        the warrant for its conclusions not in the provisions 
        of the Constitution, but in the law of nations.\13\
---------------------------------------------------------------------------
    \13\ United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 
318 (1936) (emphasis added).

    As a general rule, international law and domestic law 
regarding the amendment or modification, extension, suspension, 
and termination of treaties and other international agreements 
are in substantial harmony. International law recognizes the 
power to accomplish each of these ends in the proper 
circumstances and allows and accommodates adherence to domestic 
legal procedures relating to the manner of their execution. 
However, as the fundamental rule of treaties is that they are 
to be observed,\14\ provisions of internal law are generally 
not available as a justification for the failure of a party to 
carry out a treaty.\15\
---------------------------------------------------------------------------
    \14\ Pacta sunt servanda or ``agreements must be kept'' is a 
fundamental rule of international law. Article 26 of the Vienna 
Convention on the Law of Treaties, Senate. Ex. L, 92d Cong., 1st Sess. 
(April 24, 1970), states the rule as follows: ``Every treaty in force 
is binding upon the parties to it and must be performed by them in good 
faith.''
    \15\ With regard to internal law and the observance of treaties, 
Article 27 of the Vienna Convention on the Law of Treaties provides, in 
part, as follows: ``A party may not invoke the provisions of its 
internal law as justification for its failure to perform a treaty.'' 
However, an exception is allowed under Article 46 of the Convention in 
one specific circumstance, namely, where the violation of internal law 
``was manifest and concerned a rule of * * * internal law of 
fundamental importance.''
---------------------------------------------------------------------------
    It can be argued that amendment or modification, extension, 
suspension, and termination of a treaty are essentially the 
forging of new agreements and that, therefore, each is subject 
to the same rules as apply to the making of a treaty, that is, 
conjoint action by the President and the Senate. However, that 
conclusion is not established by an unbroken line of consistent 
practice. By and large the participation of the Senate with 
respect to amendment or modification and extension of treaties 
seems fairly well established; suspension seems largely left to 
Presidential determination; termination has happened in such a 
variety of ways that it has been said that ``[n]o settled rule 
or procedure has been followed.'' \16\ But even the supposed 
iron-clad domestic rule that the amendment or modification of a 
treaty has to be accomplished by an instrument of equal dignity 
which is subject to Senate approval has been departed from on 
at least a pair of notable occasions. ``For example, both the 
Italian and Japanese peace treaties have been altered by 
executive agreements not subject to Senate approval.'' \17\ 
Moreover, to the extent that congressionally-authorized 
executive agreements have become the legal equivalent of 
treaties,\18\ it can be contended that the amendment or 
modification and extension of a treaty could be accomplished by 
such an executive agreement, although this does not appear to 
have happened in practice.
---------------------------------------------------------------------------
    \16\ Whiteman, Marjorie. Digest of International Law, 1970. v. 14, 
460 (hereafter cited as 14 Whiteman). Compare S. Rept. 97, 34th Cong., 
1st Sess. See, generally, U.S. Congress. Senate. Committee on Foreign 
Relations. Termination of Treaties: The Constitutional Allocation of 
Power. Committee Print. 95th Cong., 2d Sess. (1978).
    \17\ U.S. Congress. Senate. Committee on Foreign Relations. 
International Agreements: An Analysis of Executive Regulations and 
Practices. Committee Print. 95th Cong., 1st Sess., 10, n. 16 (1977).
    \18\ Rest. 3d, supra, note 12, Sec. 303, Comment e, p. 161: ``The 
prevailing view is that the Congressional-Executive agreement can be 
used as an alternative to the treaty method in every instance.''
---------------------------------------------------------------------------
    Judged as a purely domestic legal matter, the amendment or 
modification, extension, suspension, and termination of an 
executive agreement concluded by the President can be 
accomplished by the President alone.\19\ This conclusion seems 
to be invariably true in the case of executive agreements 
concluded by virtue of exclusive Presidential authority and 
frequently but not always true with respect to executive 
agreements authorized by statute or treaty.\20\ In the two last 
mentioned circumstances, the authorizing statute or treaty may 
conceivably condition amendment or modification, extension, 
suspension, and termination on senatorial or congressional 
approval.\21\
---------------------------------------------------------------------------
    \19\ Ibid., Sec. 339, Reporters' Note 2.
    \20\ ``No one has questioned the President's authority to terminate 
sole executive agreements. Where the Constitution lodges the power to 
terminate * * * a congressional-executive agreement has been an issue 
at various times in the history of the United States. Practice has 
varied, the President sometimes terminating an agreement on his own 
authority, sometimes when requested to do so by Congress or by the 
Senate alone.'' Ibid. See also Hackworth, Green Haywood. Digest of 
International Law, 1927. v. V, p. 429 (hereafter cited as V Hackworth).
    \21\ ``Congress could impose such a condition in authorizing the 
President to conclude an agreement that depended on Congressional 
authority.'' Restatement of the Law: Foreign Relations Law of the 
United States (Revised) (Tentative Draft No. 1, 1980), p. 193 
(hereafter cited as Draft Restatement).
---------------------------------------------------------------------------
    Finally, treaties and executive agreements generally may 
both be superseded by an act of Congress in so far as their 
domestic consequences are concerned.\22\ However, legislation 
alone does not affect the international obligation of the 
United States under a treaty or executive agreement.
---------------------------------------------------------------------------
    \22\ Head Money Cases, 112 U.S. 580 (1884); Whitney v. Robertson, 
124 U.S. 581 (1888); The Chinese Exclusion Case, 130 U.S. 581 (1889). 
The fact that this results in a violation of international law by the 
United States does not appear to be of any constitutional significance. 
Henkin, supra, note 2, p. 485, note 130.
---------------------------------------------------------------------------
    Several post-World War II developments have impacted the 
Senate's role with respect to international agreements. One of 
these developments has been the shift to executive agreements 
and away from treaties, a subject documented elsewhere in this 
volume. That shift, arguably, has diminished the role of the 
Senate and given greater prominence to Presidential initiative 
and, in the case of congressionally-authorized executive 
agreements, to the House of Representatives. As previously 
noted, executive agreements have been used in at least two 
instances to modify treaties.
    The emergence and growth in multiparty or multilateral 
international agreements seems also to have had a decided 
impact on Senate consideration of amendments and modifications. 
For instance, in discussing other countries' reservations to 
treaties with the United States at a time when bilateral 
treaties were the norm, the Solicitor of the Department of 
State wrote some years ago that ``[i]f after the ratification 
of an international treaty, by the United States, this 
Government should be asked to agree to reservations on the part 
of some other nation, I think that the Executive could not give 
such agreement without the consent of the Senate.'' \23\ But 
that does not appear to be the case with respect to 
reservations to multilateral agreements. ``[I]n 1966, the 
Office of the Legal Adviser to the Department of State asserted 
flatly that since 1946 not a single reservation to a 
multilateral treaty had been submitted to the Senate for 
approval.'' \24\ The Restatement (Third) similarly observes:
---------------------------------------------------------------------------
    \23\ Wildhaber, Luzius. Treaty-Making Power and the Constitution. 
Basel and Stattgart, Helbing & Lichtenhahn, 1971, p. 67.
    \24\ Ibid.
---------------------------------------------------------------------------
          If another party formulates a reservation to a treaty 
        to which the United States is a party, the reservation 
        cannot become effective as to the United States, 
        through acceptance or failure to object, unless the 
        Senate has given its consent. In multilateral 
        agreements, however, the Executive Branch has developed 
        the practice of accepting or acquiescing in 
        reservations by another state, entered after United 
        States adherence to the treaty, without seeking Senate 
        consent * * *.\25\
---------------------------------------------------------------------------
    \25\ Rest. 3d, supra, note 12, Sec. 314, Comment c.

    This practice is due, perhaps, to the large number of 
signatories frequently involved in multilateral agreements and 
the sometimes technical and complex nature of their subject 
matter.
    A related practice that has begun to occur with increasing 
frequency is the inclusion in some multilateral agreements of 
provisions barring reservations.\26\ The Senate Committee on 
Foreign Relations has protested that no-reservations clauses 
intrude on the Senate's constitutional prerogatives but, 
nonetheless, has given its advice and consent to a number of 
such treaties.\27\
---------------------------------------------------------------------------
    \26\ See, for example, Article 24 of the United Nations Framework 
Convention on Climate Change, TIAS ____ (1994); Article 24 of the 
Protocol on Environmental Protection to the Antarctic Treaty, TIAS ____ 
(1998); Article 25 of the Kyoto Protocol to the United Nations 
Framework Convention on Climate Change, FCCC/CP/L.7/Add.1 (1997) (not 
yet submitted to the Senate); Article 18 of the Vienna Convention for 
the Protection of the Ozone Layer, TIAS 11097 (1988); Article 309 of 
the United Nations Convention on the Law of the Sea, Tr. Doc. 103-39 
(submitted to the Senate on October 7, 1994); Article 10 of the South 
Pacific Regional Environment Programme Agreement, Tr. Doc. 105-32 
(November 7, 1997); United Nations Convention To Combat Desertification 
in Countries Experiencing Drought, Particularly in Africa, With 
Annexes, Tr. Doc. 104-29 (approved by the Senate on October 18, 2000); 
and Article 23 of the Inter-American Convention on Sea Turtles, Tr. 
Doc. 105-48 (approved by the Senate on September 20, 2000).
    \27\ The Senate Committee on Foreign Relations has generally voiced 
its objection to no-reservations clauses in its reports on the treaties 
which contain them. Typical is its report recommending Senate advice 
and consent to the Protocol on Environmental Protection to the 
Antarctic Treaty, which stated as follows: ``* * * [T]he Senate's 
approval of these treaties should not be construed as a precedent for 
such clauses in future agreements with other nations requiring the 
Senate's advice and consent * * *. The President's agreement to such a 
prohibition can not constrain the Senate's advice and consent to a 
treaty subject to any reservation it might determine is required by the 
national interest.'' S. Exec. Rept. 102-54 (September 22, 1992), at 7.
    More recently, however, the committee has expressed its objection 
in the form of declarations included in the Senate's resolutions of 
ratification. A declaration in the resolution of ratification on the 
Inter-American Convention on Sea Turtles, which was approved by the 
Senate on September 20, 2000, stated as follows: ``* * * [I]t is the 
sense of the Senate that this `no reservations' provision has the 
effect of inhibiting the Senate in its exercise of its constitutional 
duty to give advice and consent to ratification of a treaty, and the 
Senate's approval of these treaties should not be construed as a 
precedent for acquiescence to future treaties containing such 
provisions.'' S. Exec. Rept. 106-18 (September 5, 2000), at 5.
    The Senate had previously included a similar declaration in its 
resolution of ratification on the United Nations Convention Relating to 
the Conservation and Management of Straddling Fish Stocks and Highly 
Migratory Fish Stocks when it gave its advice and consent to the 
convention on June 27, 1996. See 142 Congressional Record, June 27, 
1996, p. S7210 (daily ed.). The Senate also included a sense of the 
Senate declaration in its resolution of ratification on the CWC, 
approved on April 24, 1997, which stated as follows: ``SENSE OF THE 
SENATE.--It is the sense of the Senate that--(i) the advice and consent 
given by the Senate in the past to ratification of treaties containing 
provisions which prohibit amendments or reservations should not be 
construed as a precedent for such provisions in future treaties; (ii) 
United States negotiators to a treaty should not agree to any provision 
that has the effect of inhibiting the Senate from attaching 
reservations or offering amendments to the treaty; and (iii) the Senate 
should not consent in the future to any article or other provision of 
any treaty that would prohibit the Senate from giving its advice and 
consent to ratification of the treaty subject to amendment or 
reservation.'' 143 Congressional Record, April 24, 1997, p. S3656 
(daily ed.).
---------------------------------------------------------------------------
    Another development that has had implications for the 
Senate's role with respect to multilateral agreements is the 
evolving practice of tacit amendment. The practice takes 
various forms--Presidential acquiescence, nonsubmission of 
reservations by other parties, implementing bodies with the 
authority to make changes, and amendment by fewer than all of 
the parties--and has not escaped the Senate Foreign Relations 
Committee's attention. The committee has at times sought to 
establish some rough ground rules to ensure committee oversight 
of such practices (as distinguished from formal Senate approval 
by two-thirds vote) while not unduly delaying the amending 
process.\28\ But the practice developed under these ground 
rules and committee experience associated with them apparently 
have not been rigorously analyzed.
---------------------------------------------------------------------------
    \28\ S. Exec. Rept. 96-36, 96th Cong., 2d Sess. (1980), p. 2. See 
also discussion of tacit acceptance of reservations in Chapter VII.
---------------------------------------------------------------------------
    Thus, theory and past practice regarding the necessity for 
conjoint action by the President and the Senate on treaty-
related matters are not always clear or consistent. As the 
Senate Committee on Foreign Relations indicated in 1979, these 
developments are largely the result of expediency and the press 
of time and circumstances.\29\ They also illustrate once again 
that
---------------------------------------------------------------------------
    \29\ S. Rept. 96-119, 96th Cong., 1st Sess. (1979), p. 5.
---------------------------------------------------------------------------
          The actual art of governing under our Constitution 
        does not and cannot conform to * * * definitions * * * 
        based on isolated clauses or even single Articles torn 
        from context.\30\ * * * [I]t is doubtless both futile 
        and perhaps dangerous to find any epigrammatical 
        explanation of how this country has been governed.\31\
---------------------------------------------------------------------------
    \30\ Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 
(1952) (Jackson, J., concurring).
    \31\ Dames & Moore v. Regan, 453 U.S. 654, 660 (1981).
---------------------------------------------------------------------------

                   B. Amendment and Modification \32\
---------------------------------------------------------------------------

    \32\ The Vienna Convention on the Law of Treaties uses the word 
``amendment'' to denote changes in an international agreement 
applicable to all of the parties and the word ``modification'' to refer 
to changes in an international agreement applicable to only some of the 
parties. Arts. 40 and 41. The distinction has implications only with 
respect to multilateral agreements, not bilateral ones.
---------------------------------------------------------------------------

                                treaties

    The amendment of a binding international agreement may be 
accomplished in a variety of ways including, among others, in 
accordance with provisions included for that purpose in the 
agreement, by the consent of the parties, and by entry into 
force of a new, subsequent agreement on the same subject 
involving the same parties.
    The inclusion in international agreements of provisions for 
their modification is a fairly common practice. It reflects the 
commonsense view that the conditions which prevail at the time 
the parties negotiate an agreement may change and that a 
procedure to adjust to new conditions is the height of prudence 
and wisdom.
    Amendment or modification of an international agreement by 
consent of the parties is recognition of the fact that consent 
is the foundation of international agreements. Accordingly, the 
parties are at liberty to change an international agreement 
regardless of its terms. For similar reasons a later agreement 
on the same subject involving the same parties that expressly 
or by implication modifies an earlier agreement will be 
regarded as effecting the resulting change.
    The Vienna Convention on the Law of Treaties embraces these 
broad principles in Article 39 of Part IV, captioned ``General 
rule regarding the amendment of treaties.'' It provides that
          [a] treaty may be amended by agreement between the 
        parties. The rules laid down in Part II [relating, 
        among other things, to the conclusion of treaties] 
        apply to such an agreement except in so far as the 
        treaty may otherwise provide.

    This general principle applies to the amendment of 
bilateral and multilateral treaties alike.
    Article 40, in turn, sets out both procedural and 
substantive rules for the amendment of a multilateral treaty in 
the strict Vienna Convention sense of a revision that applies 
to all of the parties. Article 40 provides that, unless the 
treaty in question provides otherwise, the following four 
considerations apply to an amendment:
          (1) Notice of any proposal to amend a multilateral 
        treaty as between all the parties has to be 
        communicated to every party, and each party has the 
        right to take part in the decision as to the action in 
        regard to the proposal and to take part in the 
        negotiation and conclusion of any agreement to amend 
        the treaty.
          (2) Every state entitled to become a party to the 
        treaty is also entitled to become a party to the treaty 
        as amended.
          (3) An amending agreement does not bind a party to 
        the treaty which does not become a party to the 
        amending agreement; the unamended treaty continues to 
        govern the mutual rights and obligations as between 
        parties one of which is not and one of which is bound 
        by the amending agreement.\33\
---------------------------------------------------------------------------
    \33\ Article 40 references Article 30(4)(b), which provides that in 
instances when one state is a party to both an original treaty and a 
subsequent treaty that alters the first and another state is a party 
only to the first treaty, their mutual rights and obligations are 
governed by the treaty to which they both are parties.
---------------------------------------------------------------------------
          (4) In the absence of an expression to the contrary, 
        a state which becomes a party after the amending 
        agreement has come into force is to be considered as 
        (a) a party to the treaty as amended and (b) a party 
        also to the unamended treaty in its relations with any 
        party which is not bound by the amending agreement.

    Finally, Article 41 deals with the modification of a 
multilateral treaty in the strict Vienna Convention sense of a 
change that is intended to apply to fewer than all of the 
parties to an international agreement. It provides that two or 
more parties to a multilateral treaty inter se may modify it 
and bind themselves if the treaty allows such a modification. 
If the treaty does not specifically allow such a modification 
but does not prohibit it, Article 41 states that a modification 
of this nature is still permitted provided that the 
modification does not affect the enjoyment of the rights or the 
performance of obligations of the other parties to the treaty 
and does not relate to a provision derogation from which is 
incompatible with the effective execution of the object and 
purpose of the treaty as a whole. Unless the inter se agreement 
is one provided for by the treaty, the parties to it must 
notify the other parties of their intention to conclude the 
agreement and of the modifications for which it provides.
    The Restatement (Third) states a rule for the conduct of 
the United States with respect to amendment or modification of 
an international agreement that is generally in conformity with 
the just described international law on the subject. Section 
334, thus, provides that:
          (1) An international agreement may be amended by 
        agreement between the parties.
          (2) Unless it provides otherwise, a multilateral 
        agreement may be amended, with effect as between those 
        states that become parties to the amending agreement, 
        if all the contracting states were given an opportunity 
        to take part in the negotiations and to become parties 
        to the agreement as amended.
          (3) Two or more of the parties to a multilateral 
        agreement may agree to modify the agreement as between 
        themselves alone if such modification is provided for 
        by the agreement or it is not prohibited by it and 
        would not be incompatible with the rights of the other 
        parties to the agreement or with its object and 
        purpose.\34\
---------------------------------------------------------------------------
    \34\ Rest. 3d, supra, Sec. 334.

    As previously indicated, amendments or modifications to a 
treaty or international agreement generally have entailed the 
same procedure as the original agreement unless otherwise 
specified in the original agreement. Thus, the Hackworth 
edition of the Digest of International Law states that ``the 
modification of [an] existing treaty * * * involves the 
conjoint action of the treatymaking powers in a variety of 
circumstances,'' \35\ and the Whiteman edition reiterates that 
``it is a general rule that a treaty cannot be modified except 
by an instrument brought into force through the treaty 
processes.'' \36\ Consequently, the advice and consent of the 
Senate has generally been sought for amendments to treaties. 
The Whiteman edition of the Digest of International Law 
describes one such instance, as follows:
---------------------------------------------------------------------------
    \35\ V Hackworth, supra, p. 333.
    \36\ 14 Whiteman, supra, p. 441.
---------------------------------------------------------------------------
          * * * At the 29th session of the General Conference 
        of the International Labor Organization (ILO), 
        Montreal, October 9, 1946, there were adopted an 
        instrument for the amendment of the ILO Constitution * 
        * * and a Final Articles Revision Convention, 1946 * * 
        * In transmitting to the Congress a draft of a joint 
        resolution providing for acceptance of the United 
        States of the revised Constitution, the following 
        statement was made in a document accompanying the 
        letter from the Secretary of State:
                  ``The Final Articles Revision Convention, 
                which is printed in the same document, is to be 
                discussed in a separate memorandum. It is 
                intended that this convention will be submitted 
                to the Senate for its advice and consent 
                inasmuch as its intended effect is to change 
                the language of conventions which have been 
                ratified with the advice and consent of the 
                Senate or are pending before that body.'' \37\
---------------------------------------------------------------------------
    \37\ Ibid., pp. 59-60.

    Similarly, the Senate on October 1, 1992, without fanfare 
or protracted debate, gave its advice and consent to 
Presidential ratification of the Strategic Arms Reduction 
Treaty (START) along with an amending protocol. START, a 
product of 10 years of frequently difficult negotiations 
between the United States and the former Soviet Union, reduced 
rather than simply placed a cap on weapons systems possessed by 
the rival Cold War superpowers. Signed July 31, 1991, by 
President Bush and then-Soviet President Mikhail S. Gorbachev, 
the treaty became caught up in the events that led to the 
dissolution of the Soviet Union and the emergence of more than 
a dozen new states on its territory. Accordingly, the Bush 
Administration negotiated an amendatory protocol providing that 
four of the new succeeding states which had strategic offensive 
weapons within their borders (Russia, Belarus, Ukraine and 
Kazakhstan) would assume the former Soviet Union's obligations 
under the treaty as originally drafted. The administration 
submitted the protocol to the Senate, and the Senate then 
approved both START and the amendatory protocol at the same 
time.\38\
---------------------------------------------------------------------------
    \38\ The protocol was submitted to the Senate on June 23, 1992. See 
Senate Treaty Doc. 102-32, 102d Cong., 2d Sess. (1992).
---------------------------------------------------------------------------
    More recently, the Senate has forcefully insisted on its 
right to advise and consent on amendments to treaties. One of 
the treaty issues that emerged in the aftermath of the 
dissolution of the Soviet Union concerned the definition of 
what states were to be deemed its successor states for purposes 
of allocating its rights and obligations under the Anti-
Ballistic Missile (ABM) Treaty. After lengthy negotiations a 
Memorandum of Understanding on Succession (MOUS) was concluded 
in September 1997, which designated Belarus, Kazakhstan, 
Russia, and Ukraine as the successor parties to the treaty and 
allocated to them specified rights and obligations. The Clinton 
Administration had contended that the determination of the 
successor states did not constitute an amendment to the ABM 
Treaty but was an exercise of the President's constitutional 
prerogatives to determine state succession issues for purposes 
of treaty continuity.\39\ But a number of Senators disagreed 
with that perspective; and prior to the signing of the MOUS the 
Senate included the following condition in its resolution of 
ratification on an unrelated agreement, the Conventional Forces 
in Europe Flank Document: \40\
---------------------------------------------------------------------------
    \39\ See Letter from William C. Danvers, Special Assistant to the 
President, to Al Gore, President of the United States Senate 
transmitting the ``Report on the Livingston ABM Amendment'' (November 
29, 1996), reported as filed in the Senate at 143 Congressional Record, 
January 7, 1997, p. S87 (daily ed.) (No. EC 175). The Livingston 
amendment, Sec. 406 of the Department of State and Related Agencies 
Appropriations Act for Fiscal 1997, required the President to report to 
Congress on whether the MOUS and the Agreed Statement on Demarcation 
(ASD) constituted ``substantive changes'' to the ABM Treaty and whether 
they ``require the advice and consent of the Senate.''
    \40\ TIAS ____ (May 15, 1997).
---------------------------------------------------------------------------
          (9) SENATE PREROGATIVES ON MULTILATERALIZATION OF THE 
        ABM TREATY.--
                  (A) * * *
                  (B) CERTIFICATION REQUIRED.--Prior to the 
                deposit of the United States instrument of 
                ratification, the President shall certify to 
                the Senate that he will submit for Senate 
                advice and consent to ratification any 
                international agreement--
                          (i) that would add one or more 
                        countries as States Parties to the ABM 
                        Treaty, or otherwise convert the ABM 
                        Treaty from a bilateral treaty to a 
                        multilateral treaty; or
                          (ii) that would change the geographic 
                        scope or coverage of the ABM Treaty, or 
                        otherwise modify the meaning of the 
                        term ``national territory'' as used in 
                        Article VI and Article IX of the ABM 
                        Treaty.
                  (C) * * *.\41\
---------------------------------------------------------------------------
    \41\ For the text of the Senate's resolution of ratification on the 
CFE Flank Document, see 143 Congressional Record, May 14, 1997, p. 
S4477 (daily ed.).
---------------------------------------------------------------------------
    President Clinton protested that this condition invaded ``a 
matter reserved to the President under the Constitution'' and 
was substantively unrelated to the CFE Flank Document but, 
nonetheless, certified that he would submit ``any agreement 
concluded on ABM Treaty succession'' to the Senate for its 
advice and consent.\42\
---------------------------------------------------------------------------
    \42\ 143 Congressional Record, May 15, 1997, pp. S4587-S4588 (daily 
ed.) (Report on the CFE Flank Document--Message from the President).
---------------------------------------------------------------------------
    The Senate's advice and consent on the CFE Flank Document 
was itself the result of Senate insistence on its prerogatives. 
The 1990 Treaty on Conventional Forces in Europe (CFE) was an 
arms control agreement between the 22 nations of the North 
Atlantic Treaty Organization (NATO) and the Warsaw Pact placing 
alliancewide, regional, and national ceilings on specific major 
categories of conventional military equipment. The purpose of 
the pact was to stabilize the military situation in Europe and 
to reduce tensions. But the dissolution of the Warsaw Pact and 
the breakup of the Soviet Union necessitated measures to adapt 
the provisions of the CFE to the changed circumstances. One of 
the resulting agreements was the CFE Flank Document, which 
allowed Russia to maintain a higher level of certain categories 
of military equipment in the Caucasus and Baltic regions of its 
territory than would otherwise have been allowed. The Clinton 
Administration initially sought to gain approval of the 
agreement by means of a statute to be adopted by the House and 
the Senate. But the Senate rebuffed that effort; and in 
negotiations on whether the Senate would take up the Chemical 
Weapons Convention (CWC), the Senate leadership obtained the 
administration's commitment to submit the CFE Flank Document to 
the Senate for its advice and consent. The administration did 
so; \43\ and, as noted above, the Senate gave its approval on 
May 14, 1997.
---------------------------------------------------------------------------
    \43\ Treaty Doc. 105-5, 105th Cong., 1st Sess. (April 7, 1997).
---------------------------------------------------------------------------
    The Clinton Administration had also sought to have another 
agreement relating to the ABM Treaty approved by means of a 
statute rather than by submission to the Senate for its advice 
and consent. U.S. interest in developing a theater missile 
defense system led the administration to pursue negotiations 
with several of the successor states to the Soviet Union on a 
``clarification'' of the ABM Treaty to establish a demarcation 
line between ballistic missile defense systems restricted by 
the treaty and theater missile defense systems that were 
allowable. Ultimately the negotiations succeeded in concluding 
an Agreed Statement Regarding Demarcation (ASD) in June 1996, 
which was subsequently elaborated and signed by the United 
States, Russia, Belarus, Kazakhstan, and the Ukraine in 
September 1997.\44\ The administration agreed that the ASD 
constituted a ``substantive modification of the obligations we 
would otherwise have under the Treaty,'' but it contended that 
the change could be approved by Congress by statute and that it 
did not need to be submitted for the Senate's advice and 
consent.\45\ Nonetheless, bargaining over the Senate's 
willingness to consider the CWC caused the administration to 
agree to submit the ASD to the Senate for its advice and 
consent.\46\
---------------------------------------------------------------------------
    \44\ The texts of these agreements can be found on the State 
Department's Web site at www.state.gov/www/global/arms/bureau__ac/
missile.
    \45\ See letter from William C. Danvers, Special Assistant to the 
President, to Al Gore, President of the United States Senate, supra, n. 
39, and Office of Legal Counsel, Department of Justice, ``Validity of 
Congressional-Executive Agreements That Substantially Modify the United 
States' Obligations Under an Existing Treaty'' (November 25, 1996).
    \46\ As of November 2000, however, neither the ASD nor the MOUS had 
yet been sent to the Senate.
---------------------------------------------------------------------------
    Senate advice and consent may not be required, however, 
when an agreement is effectively amended or modified by a later 
agreement or when an act of Congress affects a treaty in some 
vital regard. Thus, when the United States and another country 
were parties to a bilateral treaty but then became parties to a 
multilateral convention covering the same subject matter (in 
part), the convention was judicially declared to modify 
conflicting provisions in the bilateral agreement and to 
control the proceeding.\47\ Similarly, when an earlier 
convention was merely suspended by the terms of a later 
agreement on the same subject, the expiration of the latter 
automatically caused the former to resume operation and effect 
``without further action of Congress.'' \48\ Moreover, in an 
instance when an act of Congress authorized the President to 
suspend the exercise of judicial functions by American 
diplomatic and consular officials in Egypt, the President was 
advised by the State Department that he could give ``practical 
effect'' to a convention providing for termination of 
extraterritorial rights in Egypt granted by previous treaties 
pending formal ratification of the convention by the United 
States.\49\ Likewise, when American consular officers were 
authorized to exercise judicial functions by virtue both of an 
act of Congress and a treaty, Secretary of State Lansing 
indicated that ``the appropriate method under the American 
system of Government of divesting the Consuls of this authority 
is either by a repeal of the act or by conclusion of [another] 
treaty * * *.'' \50\
---------------------------------------------------------------------------
    \47\ Fotochrome Inc. v. Copal Company Ltd., 517 F. 2d 512 (2d Cir. 
1975), note 4.
    \48\ V Hackworth, supra, p. 338.
    \49\ Ibid., at 341-342.
    \50\ Ibid., at 334.
---------------------------------------------------------------------------
    Senate advice and consent may also not be required if 
treaties are amended by means of tacit agreement. While 
acknowledging that ``[t]he President is * * * without 
authority, except by and with the advice and consent of the 
Senate, to modify a treaty provision,'' Hackworth states that 
there have been ``instances in which he [the President], acting 
through the Secretary of State, has tacitly acquiesced in 
actions by foreign Governments which had the effect of 
modifying stipulations in our treaties.'' \51\ Examples of 
change in the strict terms of an international agreement by 
tacit acquiescence documented by Hackworth involved 
multilateral arrangements accepted by all the parties and 
temporary departures during periods of abnormal conditions such 
as war or pending action on a new treaty.\52\
---------------------------------------------------------------------------
    \51\ Ibid., at 340.
    \52\ Ibid., at 339-341.
---------------------------------------------------------------------------
    Moreover, as previously noted, notwithstanding the general 
rule regarding the need for Senate approval, the Department of 
State in the post-World War II period has not been sending to 
the Senate reservations on the part of other nations to 
multilateral treaties ratified by the United States.\53\ The 
Restatement (Third) takes note of the practice and concludes 
with this observation:
---------------------------------------------------------------------------
    \53\ See note 23 and accompanying text.
---------------------------------------------------------------------------
          Constitutionally, that practice must depend on an 
        assumption that the Senate, aware of Executive practice 
        and acquiescing in it, in giving consent to the treaty 
        also tacitly gives its consent to later acceptance by 
        the Executive of reservations by other states.\54\
---------------------------------------------------------------------------
    \54\ Rest. 3d, supra, Sec. 314, Comment c.

    The tacit amendment process may also occur pursuant to the 
explicit provisions of some treaties. Due, perhaps, to their 
complexity and technical specificity, a number of arms control 
and environmental agreements establish processes for their own 
modification which do not require further Senate involvement. 
The modifications allowed typically are described as not rising 
to the level of an amendment of the treaties; but, nonetheless, 
the processes permit the treaty regime to evolve in some 
respects without reference to the Senate. The INF Treaty, for 
instance, created a Special Verification Commission with the 
authority to modify the verification procedures used under the 
treaty and, in the case of the Inspections Protocol, to ``agree 
upon such measures as may be necessary to improve the viability 
and effectiveness of this Protocol.'' \55\ The CFE Treaty, in 
turn, created a Joint Consultative Group with the authority to 
agree to improvements of a technical or administrative 
nature.\56\ The START agreement includes a number of provisions 
that allow the Joint Compliance and Inspection Commission to 
``agree upon such additional measures as may be necessary to 
improve the viability and effectiveness of the Treaty.'' \57\ 
The United States-Japan Convention for the Protection of 
Migratory Birds allows the parties to modify the list of birds 
protected by diplomatic note.\58\ The Montreal Protocol on 
Substances that Deplete the Ozone Layer allows the parties to 
restrict the production and consumption of substances specified 
in the annexes as depleting atmospheric ozone as well as the 
timetable by which such adjustments must be made.\59\ Some 
agreements explicitly permit modifications to become effective 
for all parties even absent unanimous agreement. The Montreal 
Protocol on Substances that Deplete the Ozone Layer, for 
instance, encourages consensus but as a last resort allows 
decisions regarding the production and consumption of ozone-
depleting substances which are binding on all parties to be 
made by a two-thirds majority vote.\60\ The International 
Convention on Safety of Life at Sea permits amendments to enter 
into force automatically after a specified time period has 
elapsed, absent objection by a quorum of parties.\61\ The U.N. 
Charter, in Article 108, provides that an amendment comes into 
force for all members if it is approved by two-thirds of the 
members of the General Assembly and ratified by two-thirds of 
the member states including all permanent members of the 
Security Council.
---------------------------------------------------------------------------
    \55\ INF Treaty, TIAS ____, 27 ILM 84 (1988), Articles XI and XIII.
    \56\ CFE Treaty, TIAS ____, 30 ILM 1 (1991), Article XVI.
    \57\ START, TIAS ____ (1994). For a description and critical 
discussion of the tacit amendment processes in these and a number of 
other arms control agreements, see Koplow, David A. When Is an 
Amendment Not an Amendment: Modification of Arms Control Agreements 
Without the Senate. University of Chicago Law Review, v. 59, 1992, p. 
981.
    \58\ 25 UST 3329 (1972).
    \59\ TIAS ____ (1987), Article 2(9).
    \60\ Ibid.
    \61\ 32 UST 47 (1980), Article VIII.
---------------------------------------------------------------------------
    The Senate, in giving its advice and consent to the 
treaties which contain these various processes for 
modification, presumably has also given its consent in advance 
to the modifications adopted pursuant to those processes. 
Nonetheless, the tacit amendment process has given the Senate 
some concern, and it has at times requested or required the 
executive branch to advise the Senate of such amendments prior 
to their entry into force. In its report recommending the 
approval of the Convention on the Prevention of Maritime 
Pollution by Dumping of Wastes and other Matter as modified by 
a 1978 protocol,\62\ the Senate Foreign Relations Committee 
tried to balance the need to prevent undue delay with its 
oversight responsibility. It said:
---------------------------------------------------------------------------
    \62\ 26 UST 2403; TIAS 8165.
---------------------------------------------------------------------------
          It should be noted that the 1973 parent convention 
        contains a provision (Article 16) which provides for a 
        tacit amendment process. The Committee recognizes the 
        need for an expedited process for highly technical 
        treaties of this nature. However, the Committee will 
        approve this procedure only on a case-by-case basis and 
        only with respect to technical provisions. The 
        Committee expects the Administration to inform it of 
        any proposed amendments subject to this procedure prior 
        to the time for tacit acceptance. This will enable the 
        Committee to voice an objection to tacit acceptance in 
        appropriate cases, before the issue becomes moot.\63\
---------------------------------------------------------------------------
    \63\ S. Exec. Rept. 96-36, 96th Cong., 2d Sess. (1980), p. 2 
(emphasis added).

    While the reasons behind the committee's attempt to bridge 
efficiency and presumed constitutional requirements in this 
manner are readily understood, the procedure raises various 
fundamental questions. Notably, whether the committee, on its 
own motion, may tacitly consent for two-thirds of the Senate or 
whether the Congress by law or the Senate by rule could 
authorize the committee to act in this manner are unresolved 
issues.\64\
---------------------------------------------------------------------------
    \64\ See INS v. Chadha, 462 U.S. 919 (1983) (one house veto held 
unconstitutional); Consumer Union v. FTC, 691 F. 2d 575 (D.C. Cir. 
1982), affd. sub nom, Process Gas Consumers Group v. Consumer Energy 
Council, 463 U.S. 1216 (1983) (two house veto held unconstitutional); 
American Federation of Government Employees v. Pierce, 697 F. 2d 303 
(D.C. Cir. 1982) (committee veto held unconstitutional).
---------------------------------------------------------------------------

                          executive agreements

    As ``[t]he Constitution of the United States nowhere makes 
explicit provision for the President to conclude international 
agreements other than treaties,'' \65\ it follows that the 
Constitution offers no guidance regarding the amendment of 
executive agreements.\66\ Furthermore, authoritative texts and 
secondary writings to all appearances fail to shed any 
significant light on the actual practice of amending executive 
agreements.
---------------------------------------------------------------------------
    \65\ 14 Whiteman, supra, p. 194. See Chapter IV.
    \66\ The power of the President to make executive agreements has 
been recognized by the Supreme Court, United States v. Curtiss-Wright 
Export Corp., 299 U.S. 304 (1936); United States v. Pink, 315 U.S. 203 
(1942). ``A treaty signifies `a compact made between two or more 
independent nations with a view to the public welfare.' * * * But an 
international compact is not always a treaty which requires the 
participation of the Senate. There are many such compacts, of which a 
protocol, a modus vivendi, a postal convention, and agreements 
[assigning foreign assets] * * * are illustrations.'' United States v. 
Belmont, 301 U.S. at 330-331.
---------------------------------------------------------------------------
    As previously noted, the general rule is that the amendment 
or modification of an international agreement to which the 
United States is a party is subject to the same rules as apply 
to the making of an agreement. Accordingly, since agreements of 
this nature concluded by the President are not submitted to the 
Senate or Congress for approval, amendments to such agreements 
ordinarily do not require Senate or congressional approval. It 
seems clear that in the case of an executive agreement based on 
the sole authority of the President, modifications to such an 
agreement are a matter of Presidential discretion.\67\ As a 
general matter, the same conclusion applies to modifications of 
executive agreements pursuant to either a treaty or an act of 
Congress.\68\ It would appear that so long as the amendment of 
an executive agreement is consonant with the underlying treaty 
or law which authorized the agreement in the first instance, 
that is, the agreement carries out their purposes, the 
President would be within his rights to make such an amendment.
---------------------------------------------------------------------------
    \67\ See note 20. ``* * * the President, on his own authority, may 
make an international agreement dealing with any matter that falls 
within his independent powers under the Constitution.'' Rest. 3d, 
supra, Sec. 303(4).
    \68\ ``* * * (2) the President, with the authorization or approval 
of Congress, may make an international agreement dealing with any 
matter that falls within the powers of Congress and of the President 
under the Constitution; (3) the President may make an international 
agreement as authorized by treaty of the United States.'' Ibid.
---------------------------------------------------------------------------
    However, Congress may impose limitations on agreements it 
authorizes to be made.\69\ Notably in the fields of 
international trade and nuclear energy Congress has authorized 
the President to conclude international agreements but has 
required him to submit them for congressional scrutiny and 
possible disapproval.\70\ Moreover, the Senate may condition 
approval of a treaty which authorizes the conclusion of an 
agreement upon submission of the agreement for approval by the 
Senate or Congress.\71\ Similarly, an act of Congress or treaty 
could require Senate or congressional approval of amendments or 
modifications to international agreements that they authorize 
the President to conclude.\72\
---------------------------------------------------------------------------
    \69\ Ibid., at 223.
    \70\ For example, Trade Act of 1974, 88 Stat. 1982 (1975); 19 
U.S.C. 2112. Nuclear Non-Proliferation Act of 1978, 92 Stat. 120 
(1978); 42 U.S.C. 2153(d), 2155(b), 2157(b), and 2160(f).
    \71\ ``The treaty of inter-American arbitration signed at 
Washington, on January 5, 1929, was submitted to the Senate by 
President Coolidge on January 26, 1929. The Senate, on January 19, 
1932, advised and consented to its ratification with reservations, 
which were regarded by the Executive as highly objectionable. In 1934, 
President Roosevelt resubmitted the treaty to the Senate, and, in 1935, 
it gave its advice and consent to ratification, without certain of the 
reservations previously insisted upon, although it did so with the 
understanding that the special agreements to arbitrate should, in each 
instance, be subject to approval by the Senate. The President ratified 
the treaty with this understanding, and the ratification was deposited 
on April 16, 1935.'' V Hackworth, supra, p. 93.
    ``The Senate often has given its consent subject to conditions * * 
* The Senate may * * * give its consent on conditions that do not 
require change in the treaty but relate to domestic application, e.g., 
* * * that agreements * * * made in implementation of the treaty shall 
require the Senate's advice and consent.'' Rest. 3d, supra, Sec. 303, 
Comment d.
    \72\ For example, Section 33 of the Arms Control and Disarmament 
Act, 75 Stat. 634 (1961); 22 U.S.C. 2573, provides that no ``action'' 
shall be taken that obligates the United States to disarm or reduce or 
limit the Armed Forces of the United States unless pursuant to treaty 
or unless authorized by legislation.
---------------------------------------------------------------------------

                              C. Extension

                                treaties

    The Vienna Convention on the Law of Treaties deals 
implicitly rather than explicitly with the subject of treaty 
extension. Extension of an international agreement to all 
intents and purposes is the execution of a new agreement (or 
re-execution) and, therefore, is subject to the convention's 
overall requirements for treaties, including conclusion, 
amendment and modification, suspension, and termination.
    As an agreement to extend a treaty for many, if not most, 
purposes is considered a treaty modification, general U.S. 
practice is to submit an extension to the Senate for its advice 
and consent. Accordingly, when France gave 6-months' notice of 
termination as provided in Article VII of the Commercial 
Convention of 1822 but requested tacit extension for 3-month 
periods after the termination date until it was replaced by a 
new treaty, the Department of State replied:
          * * * [T]he Government of the United States is not in 
        a position to agree to the proposals * * *. The 
        suggestion of the French government amounts * * * in my 
        opinion to a proposal to modify the terms of the 
        treaty, a proposal which is not susceptible of 
        execution on the part of the Government in the manner 
        suggested.\73\
---------------------------------------------------------------------------
    \73\ V Hackworth, supra, p. 334.

    Instead, the Department proposed a new treaty modifying 
Article VII to allow for termination upon 3-months' notice as 
the best means of complying with the French request. The latter 
accepted this suggestion and after the new agreement went into 
effect, the United States and France, in an exchange of notes, 
agreed that the new treaty amounted to a withdrawal of the 
French notice of termination.\74\ Similar replies were given to 
requests for postponement of termination of treaties made by 
Norway, Spain, and Greece.\75\
---------------------------------------------------------------------------
    \74\ Ibid., p. 335.
    \75\ Ibid.
---------------------------------------------------------------------------
    Similarly, when Italy proposed that commissioners acting 
under a treaty serve indefinite terms rather than the 5-year 
term established in the treaty, the Department of State replied 
that this change could not be made by an exchange of notes but 
would require a new treaty.\76\ In like manner, when the United 
States and Canada agreed to depart from a 1909 treaty 
concerning the diversion of boundary waters in the Niagara 
River to permit an additional diversion for power purposes, the 
exchange of notes stated that the agreement would be effective 
``when approved by the Senate.'' \77\ ``The Senate of the 
United States advised ratification on June 2, 1941, and the 
President `approved' the arrangement on June 13.'' \78\
---------------------------------------------------------------------------
    \76\ Ibid.
    \77\ Ibid.
    \78\ Ibid., p. 336.
---------------------------------------------------------------------------
    The extension of commodity agreements--agreements 
establishing the framework for international cooperation in 
wheat, coffee, tin, and sugar--are routinely submitted to the 
Senate. The International Wheat Agreement of 1971, which was 
replaced in 1988 by a 1986 successor, was extended on more than 
half a dozen occasions.\79\ In 1981 the Senate gave its advice 
and consent to an 8-month extension of the rights, duties, and 
obligations of the parties under the Treaty of Friendship and 
Cooperation of January 24, 1976, between the United States and 
Spain. The temporary extension, among other things, preserved 
in force U.S. access to and use of military facilities in Spain 
pending negotiation of a successor agreement to the 1976 treaty 
and Spain's accession to the North Atlantic Treaty.\80\
---------------------------------------------------------------------------
    \79\ Treaty Doc. 97-9, p. v (1981); S. Exec. Rept. 100-10, 100th 
Cong., 1st Sess. (1987), p. 12. The 1986 agreement provided for 2-year 
extensions on the basis of the mutual consent of the participating 
countries without resort to formal ratification procedures. Ibid., p. 
20.
    \80\ Treaty Doc. 97-20, 97th Cong., 1st Sess. (1981), p. 1.
---------------------------------------------------------------------------
    However, the extension of times for the organization of 
commissions called for by various treaties was in one instance 
accomplished by an exchange of notes and in another by 
agreement of the members of the commission.\81\
---------------------------------------------------------------------------
    \81\ V Hackworth, supra, p. 337.
---------------------------------------------------------------------------
    The role of the Senate with respect to the extension or 
enlargement of a treaty in terms of geographic scope and 
parties eligible to adhere seems to depend on the nature of the 
treaty. In the case of treaties providing for regional or 
collective self defense arrangements, the Senate has been 
insistent that its approval is required for the addition of new 
members. Whiteman provides the following relevant 
illustrations:
          The Senate Committee on Foreign Relations, in its 
        report of June 6, 1949, recommending advice and consent 
        to ratification of the [North Atlantic] Treaty 
        commented:
                  Inasmuch as the admission of new members 
                might radically alter our obligations under the 
                pact, the committee examined article 10 very 
                carefully. The question arose whether an United 
                States decision respecting new members would be 
                based solely on Presidential action or would 
                require Senate approval. Consequently, the 
                committee was fully satisfied by the commitment 
                of the President, delivered by the Secretary of 
                State, that he would consider the admission of 
                a new member to the pact as the conclusion of a 
                new treaty with that member and would seek the 
                advice and consent of the Senate to each such 
                admission. The committee considers this is an 
                obligation binding upon the Presidential 
                office.\82\
---------------------------------------------------------------------------
    \82\ 14 Whiteman, supra, p. 100, quoting S. Exec. Rept. 8, 81st 
Cong., 1st Sess. (1949), p. 18.
---------------------------------------------------------------------------
          The report of the Foreign Relations Committee 
        recommending ratification of the [Southeast Asia 
        Collective Defense] Treaty stated:
                  Provision is made in three articles of the 
                treaty for modification of its terms by 
                unanimous agreement. Thus, article IV, 
                paragraph 1, as well as article VII, 
                contemplates that the treaty area may be 
                extended by the parties to any state or 
                territory `which the parties by unanimous 
                agreement may hereafter designate.' Article VII 
                refers to the accession of additional states 
                `by unanimous agreement of the parties.' To 
                avoid the possibility of any misunderstanding 
                on the significance of this clause, the 
                President informed the Senate * * * that the 
                provisions with respect to designation of new 
                territories and membership are to be construed 
                as requiring the Senate's advice and consent. 
                In other words, it is not enough that the 
                executive branch should acquiesce in the 
                addition of new members or in the modification 
                of the treaty area, but these matters must also 
                be brought before the Senate.\83\
---------------------------------------------------------------------------
    \83\ Ibid., p. 101, quoting S. Exec. Rept. 11, 84th Cong., 1st 
Sess. (1957), pp. 11-12.

    In contrast, the Senate has generally not sought or 
reserved to itself any role with respect to state participation 
in most other multilateral conventions, including those 
establishing international organizations. The admission of new 
states to the United Nations, for instance, is effected by 
decision of the General Assembly upon the recommendation of the 
Security Council.\84\ No review or approval by the Senate is 
required.\85\
---------------------------------------------------------------------------
    \84\ U.N. Charter, Article 4; 59 Stat. 1031; 3 Bevans 1153.
    \85\ See S. Exec. Rept. F, 79th Cong., 1st Sess. (1945).
---------------------------------------------------------------------------

                          executive agreements

    In the case of an international agreement in the form of an 
executive agreement, extension does not involve the Senate or 
Congress if the agreement is based on the President's exclusive 
constitutional authority. But if the executive agreement is 
pursuant to treaty or congressional authorization, the Senate's 
consent to the treaty or Congress' authorization may specify 
conditions on its extension and reserve a role for the Senate 
or Congress. In the Magnuson Fishery Conservation and 
Management Act of 1976, for instance, Congress directed the 
Secretary of State to negotiate ``governing international 
fishery agreements'' (other than treaties), specified the 
conditions that they had to meet, and directed that no such 
agreements be ``renewed, extended, or amended'' unless they met 
the specified conditions.\86\ Subsequently, Congress by statute 
approved the extension of several such agreements.\87\
---------------------------------------------------------------------------
    \86\ 16 U.S.C. 1822(c); Public Law 94-265, Title II, Sec. 202 
(April 13, 1976); 90 Stat. 331, 340.
    \87\ See, for example, Public Law 98-364, Title I, Sec. 106 (July 
17, 1984) (approving the extension of the Governing International 
Fishery Agreement with the European Economic Community) and Public Law 
100-66, Sec. 1 (July 10, 1987) (approving the extension of the 
Governing International Fishery Agreement with South Korea).
---------------------------------------------------------------------------

                           D. Suspension \88\
---------------------------------------------------------------------------

    \88\ ``Suspension is distinguished from termination * * * 
principally in that suspension can be revoked or terminated informally 
and no new agreement is necessary to restore the agreement to full 
effect. Unilateral suspension can be revoked and the agreement 
reactivated unilaterally by the suspending party; suspension by 
agreement of the parties can be ended and the agreement restored by 
agreement of the parties informally.'' Rest. 3d, supra, Sec. 333, 
Comment a. ``Suspension of an agreement is relatively rare.'' Ibid., 
Reporters' Note 3.
---------------------------------------------------------------------------

                                treaties

    The provisions in the Vienna Convention on the Law of 
Treaties regarding the suspension of the operation of a treaty 
parallel the provisions of the convention relating to the 
termination of a treaty. Briefly, the operation of a treaty as 
to all of the parties or as to a particular party may be 
suspended in conformity with its provisions or by consent of 
all of the parties.\89\
---------------------------------------------------------------------------
    \89\ Vienna Convention on the Law of Treaties, supra, Article 57.
---------------------------------------------------------------------------
    Two or more parties to a treaty may agree to suspend the 
operation of its provisions temporarily and as between 
themselves alone in accordance with relevant treaty provisions. 
In the absence of relevant provisions, parties in these 
circumstances may agree to suspend the operation of treaty 
provisions under two conditions. The first is that the 
suspension does not affect the enjoyment by other parties of 
their rights under the treaty or the performance of their 
obligations. The second is that the suspension cannot be 
incompatible with the object and purpose of the treaty. Unless 
suspension is allowed by the treaty, the suspending parties are 
required to give notice of their intention to suspend to the 
other parties.\90\
---------------------------------------------------------------------------
    \90\ Ibid., Article 58.
---------------------------------------------------------------------------
    Generally speaking, where parties, without expressly 
terminating an earlier treaty, enter into another and 
incompatible treaty on the same subject, the former is deemed 
terminated. However, a treaty in these circumstances is not 
considered to have been terminated if it appears from the later 
treaty or it is otherwise established that the parties intended 
only to suspend its operation.\91\
---------------------------------------------------------------------------
    \91\ Ibid., Article 59.
---------------------------------------------------------------------------
    A material breach of a bilateral treaty by one party 
entitles the other party to invoke the breach as a ground for 
terminating the treaty or suspending its operation, in whole or 
in part. In the case of a material breach of a multilateral 
treaty by one of the parties, the Vienna Convention 
distinguishes between the right of the other parties to react 
jointly to the breach and the right of an individual party 
specially affected by the breach to react alone. In the first 
case, the other parties by unanimous agreement may suspend the 
operation of the treaty or terminate it and they may do so 
either in their relations with the defaulting state or as 
between all the parties. In the second case any party specially 
affected by the breach may invoke it as a ground for suspending 
the operation of the treaty in whole or in part in the 
relations between itself and the defaulting state. Where a 
material breach is of such a character that it radically 
changes the position of every party with respect to the 
performance of its obligations under the treaty, any other 
party may invoke the breach to suspend the operation of the 
treaty in whole or in part with respect to itself.\92\
---------------------------------------------------------------------------
    \92\ Ibid., Article 60.
---------------------------------------------------------------------------
    The Restatement (Third) follows a portion of the Vienna 
Convention in Section 333 as follows:
          (1) The operation of an international agreement may 
        be suspended in conformity with its provisions or by 
        consent of all the parties.
          (2) Two or more parties to a multilateral 
        international agreement may agree to suspend its 
        operation as between themselves if
                  (a) the agreement provides for such 
                suspension; or
                  (b) the agreement does not prohibit such 
                suspension and the suspension would not be 
                incompatible with the rights of the parties to 
                the agreement or with its object and 
                purpose.\93\
---------------------------------------------------------------------------
    \93\ Rest. 3d, supra, Sec. 333.

    While acknowledging that the Constitution does not 
expressly authorize the President to suspend an international 
agreement on behalf of the United States, the Restatement 
(Third) concludes that he may do so because he is empowered to 
conduct the foreign relations of the United States. The 
Restatement's rules covering suspension are formulated 
accordingly. Thus Section 339 provides that:
          Under the law of the United States, the President has 
        the power
                  (a) to suspend * * * an agreement in 
                accordance with its terms;
                  (b) to make the determination that would 
                justify the United States in * * * suspending 
                an agreement because of its violation by 
                another party or because of supervening events, 
                and to proceed to * * * suspend the agreement 
                on behalf of the United States; or
                  (c) to elect in a particular case not to 
                suspend or terminate an agreement.\94\
---------------------------------------------------------------------------
    \94\ Ibid. Sec. 339.

    The Restatement rule is in line with a 1941 opinion by 
Acting Attorney General Biddle who concluded that a treaty 
could be suspended by the President without aid or intervention 
of the Senate or Congress. With respect to the International 
Load Line Convention signed at London on July 5, 1930, which 
limited the amount of cargo that ships could carry, he said:
          The convention may be declared inoperative or 
        suspended by the President. A declaration by the 
        President to that effect would validly render the 
        convention inoperative or suspended, as the case may 
        be. Attention to the observance of treaties is an 
        executive responsibility. Jefferson to Genet, 4 Moore, 
        Digest Int. L. 680-682 (1906). It is not proposed that 
        the United States denounce the convention under article 
        25 (47 Stat. 2256), nor that it be otherwise abrogated. 
        Consequently, action by the Senate or by the Congress 
        is not required. Cf. 1 Stat. 578, 5 Moore, Digest Int. 
        El 356. The facts which bring into operation the right 
        to declare the convention inoperative or suspended are 
        within the knowledge of and can be promptly and 
        adequately appraised by the Executive Department; and 
        it is proper that the President, as ``the sole organ of 
        the Nation in its external relations should speak for 
        the Nation in announcing action which international law 
        clearly permits.'' See United States v. Curtiss-Wright 
        Export Corporation (1936) 299 U.S. 304, 319-320. See 
        also Charlton v. Kelly (1913) 229 U.S. 447, 472-476. 
        There is no question here of making or even of the 
        abrogation of a treaty. It is merely a question of a 
        declaration of inoperativeness of a treaty which is no 
        longer binding because the conditions essential to its 
        continued effectiveness no longer pertain.
          Accordingly, it is my opinion that the convention 
        referred to may be declared by you to be either 
        inoperative or suspended; and that upon such 
        declaration it would become inoperative or suspended as 
        the case may be leaving the Secretary of Commerce free 
        to set load lines pursuant to the act of March 2, 1929, 
        c. 508 (45 Stat. 1492), as amended by the act of May 
        26, 1939, c. 151 (55 Stat. 783), without regard to the 
        convention.\95\
---------------------------------------------------------------------------
    \95\ V Hackworth, supra, p. 339, citing 40 Op. Atty. Gen., no. 24 
(1941). See 14 Whiteman, supra, pp. 483-485.

    Fundamental to the Attorney General's position was the 
assumption that the convention presupposed peacetime conditions 
which no longer prevailed. Accordingly, the President could 
recognize the changed circumstances (rebus sic stantibus) and 
suspend the convention during the pendency of the abnormal 
circumstances. Without taking sides as to whether the rule of 
changed circumstances applies only when the change is essential 
or fundamental, the opinion concluded that the more onerous 
circumstance was met in this case.
    As previously indicated, a material breach of a bilateral 
international agreement by one of the parties entitles the 
other to suspend it in whole or in part. Also, a material 
breach of a multilateral agreement by one of the parties 
entitles the other parties by unanimous agreement to suspend it 
either between themselves and the defaulting state or as 
between all the parties. Under his authority to conduct the 
foreign relations of the United States, the President makes the 
determination that justifies suspending an agreement because of 
a material breach by another party. Accordingly, as a practical 
matter the President has the power to suspend a treaty since 
the courts look to executive determinations for guidance 
respecting the continued viability of a treaty.\96\ Thus, in 
1986 the United States gave notice that it was suspending the 
obligations of the ANZUS Security Treaty as it applied to New 
Zealand because of that country's prohibition on visits by 
nuclear-armed and nuclear-powered warships and aircraft. At the 
same time it gave notice to Australia, the other party to the 
ANZUS Treaty, that the treaty remained in full effect between 
the United States and Australia.\97\
---------------------------------------------------------------------------
    \96\ Charlton v. Kelly, 229 US 447, 476 (1913). See also Terlinden 
v. Ames, 184 U.S. 270, 290 (1902), and Baker v. Carr, 369 U.S. 186, 
211-212 (1962).
    \97\ Nash, Cumulative Digest 1981-1988, supra, Book I, pp. 1279-
1281.
---------------------------------------------------------------------------
    Where an intervening act of Congress effectively grants the 
President discretion to suspend a treaty provision in some 
material regard, there is no need for Senate or congressional 
action when the discretion is exercised. Accordingly, when an 
act of Congress authorized the President to suspend the 
exercise of judicial functions of American consular and 
diplomatic officials, the State Department concluded that he 
could suspend the jurisdiction of the consular and ministerial 
courts in Egypt and permit their jurisdiction to be transferred 
to the mixed courts of that country notwithstanding that 
ratification of a pertinent convention by the United States was 
still pending.\98\
---------------------------------------------------------------------------
    \98\ V Hackworth, supra, p. 342.
---------------------------------------------------------------------------
    Also, it has been observed that by virtue of his power to 
recognize or not to recognize governments, the President can 
continue or suspend treaty relations with the country in 
question.\99\
---------------------------------------------------------------------------
    \99\ Henkin, supra, at 489, note 138.
---------------------------------------------------------------------------
    In light of the tendency of domestic courts to be guided by 
executive actions regarding the continued effectiveness of a 
treaty, actions effectively waiving noncompliance by the other 
party do not as a practical matter require Senate or 
congressional approval. Thus, in upholding the extradition to 
Italy of an American national notwithstanding Italy's refusal 
earlier to surrender Italian nationals--a refusal which the 
United States regarded as a breach of the extradition treaty--
the Supreme Court held in favor of the treaty and extradition. 
It said:
          * * * If the attitude of Italy was, as contended, a 
        violation of the obligation of the treaty, which, in 
        international law, would have justified the United 
        States in denouncing the treaty as no longer 
        obligatory, it did not automatically have that effect. 
        If the United States elected not to declare its 
        abrogation, or come to a rupture, the treaty would 
        remain in force. It was only voidable, not void; and if 
        the United States should prefer, it might waive any 
        breach which in its judgment had occurred and conform 
        to its own obligation as if there had been no such 
        breach * * *
          That the political branch of the Government 
        recognizes the treaty obligation as still existing is 
        evidenced by its action in this case.
          The executive department having thus elected to waive 
        any right to free itself from the obligation to deliver 
        up its own citizens, it is the plain duty of this court 
        to recognize the obligation to surrender the appellant 
        as one imposed by the treaty as the supreme law of the 
        land and as affording authority for the warrant of 
        extradition.\100\
---------------------------------------------------------------------------
    \100\ Charlton v. Kelly, 229 U.S. 447, 473, 474, 476 (1913).

    In 1957 the Department of State indicated that while the 
President  ``as  a  practical  matter''  can  waive  the  
breach  of  a  treaty, the  power ``would  be  exercised  only 
in  light  of  the  circumstances of  the  particular  case,  
including  anticipated  congressional  reactions * * *.'' \101\
---------------------------------------------------------------------------
    \101\ 14 Whiteman, supra, p. 477.
---------------------------------------------------------------------------
    Concerning the exercise of a Presidential waiver adversely 
affecting the rights of American citizens under a treaty, the 
following comment has been made:
          Although it is a general rule that a treaty to which 
        the United States is a party cannot be modified except 
        by the instrument brought into force through the treaty 
        processes, the effect of modification may be achieved 
        in some instances by a waiver of rights under a treaty 
        or a failure to invoke the treaty in circumstances 
        where it could be invoked. To an inquiry from Senator 
        Jenner, Secretary of State Dulles replied:
                  In light of the fact that your letter * * * 
                specifically raised the question whether the 
                Department of State under the present 
                administration claims ``authority to modify 
                treaties,'' * * * I am glad to assure you that 
                it is my view that the Executive may modify a 
                treaty, or a provision thereof, only by the 
                conclusion of another instrument of equal 
                formality, i.e., by another treaty entered into 
                by and with the advice and consent of the 
                Senate. This is also the view of my advisers, 
                who are fully aware of my position and fully 
                share my views.
                  To summarize, there are certain instances in 
                which rights to which United States citizens 
                are entitled under treaties or other United 
                States laws may, in the national interest, 
                legally be waived, lessened or extinguished by 
                acts, agreements or decisions of the Executive 
                Branch of the Government. You may be assured, 
                however, that no such decisions would be taken 
                in any situation without very careful 
                consideration at a high level of the rights 
                involved and the national interest.\102\
---------------------------------------------------------------------------
    \102\ Ibid., pp. 441-442.
---------------------------------------------------------------------------

                          executive agreements

    Unless qualified by an act of Congress or treaty 
authorizing the agreement (that is, by the Senate's 
conditioning its advice and consent), the President may 
unilaterally suspend an executive agreement.

                      E. Termination or Withdrawal

                                treaties

Terms of treaty; unanimous consent
    As indicated in connection with the discussion of 
suspension, the Vienna Convention on the Law of Treaties sets 
forth the fundamental rule that a treaty may be terminated or 
that a party may withdraw from a treaty in two ways: first, in 
conformity with the provisions of the treaty; and second, at 
any time by consent of all the parties.\103\ Most commentaries 
on this aspect of treaty law agree that the modern practice is 
to include in international agreements provisions dealing with 
their termination. These provisions take various forms, such as 
establishing the agreements' duration, specifying a date for 
their termination, identifying a condition or event which lays 
the basis for their termination, or providing for the right to 
denounce or withdraw from the treaty.
---------------------------------------------------------------------------
    \103\ Vienna Convention on the Law of Treaties, supra, Article 54.
---------------------------------------------------------------------------
    A fairly common formulation conditions the right to 
withdraw upon notice to the other parties of the intention to 
withdraw and the expiration of a fixed period of time. In the 
case of a bilateral treaty the exercise of the right means 
termination; in the case of a multilateral treaty, withdrawal 
may, but does not necessarily, terminate the treaty with 
respect to the other parties. Of course, as consent is the 
basis of all international agreements, the parties may in most, 
if not all, circumstances put an end to a treaty by unanimous 
consent.
    Under international law a treaty which does not make any 
provision for its termination or for denunciation or withdrawal 
is not subject to denunciation or withdrawal. This prohibition 
flows from the fundamental principle of international law that 
treaties are to be observed ( pacta sunt servanda), that is, 
that treaty obligations are binding and cannot be unilaterally 
waived.\104\ However, the Vienna Convention allows two 
exceptions to this rule. Denunciation or withdrawal 
notwithstanding treaty silence on the subject is permitted if 
``it is established that the parties intended to admit of the 
possibility of denunciation or withdrawal'' or, alternatively, 
if ``a right of denunciation or withdrawal may be implied by 
the nature of the treaty.'' In either of these circumstances, 
the Vienna Convention states that 12-months' notice must be 
given of an intention to denounce or withdraw from a 
treaty.\105\
---------------------------------------------------------------------------
    \104\ Ibid., Article 26.
    \105\ Ibid., Article 56.
---------------------------------------------------------------------------
    The Restatement (Third) elucidates the U.S. position on the 
termination and denunciation of international agreements in a 
manner that is generally in accord with Articles 54 and 56 of 
the Vienna Convention. Thus, Section 332 provides that:
          (1) The termination and denunciation of an 
        international agreement, or the withdrawal of a party 
        from an agreement, may take place only
                  (a) in conformity with the agreement or
                  (b) by consent of all the parties.
          (2) An agreement that does not provide for 
        termination or denunciation or for the withdrawal of a 
        party is not subject to such action unless the right to 
        take such action is implied by the nature of the 
        agreement or from other circumstances.\106\
---------------------------------------------------------------------------
    \106\ Rest. 3d, supra, Sec. 332.

    The termination of a treaty under international law is not 
confined to circumstances where termination is the unanimous 
desire of the parties or in conformity with treaty provisions 
for termination. A treaty may be effectively terminated when 
all of the parties to it conclude a later treaty on the same 
subject if it appears from the latter or it is otherwise 
established that the parties intended that the matter should be 
governed by the second treaty. A similar result obtains where 
the provisions of the later treaty are so incompatible with the 
earlier one that the two of them cannot effectively 
coexist.\107\
---------------------------------------------------------------------------
    \107\ Vienna Convention on the Law of Treaties, supra, Article 59. 
The Restatement (Third) indicates that the United States adheres to 
this view regarding the termination of an international agreement by 
conclusion of a later incompatible agreement. See Rest. 3d, supra, 
Sec. 332, Comment e.
---------------------------------------------------------------------------
Breach
    Under Article 60 of the Vienna Convention, a material 
breach of a bilateral treaty by one of the parties entitles the 
other to invoke the breach as a ground for terminating the 
treaty in whole or in part. In the case of a material breach of 
a multilateral treaty, the other parties by unanimous agreement 
may terminate it either in their relations with the defaulting 
state or all the other parties. A material breach for this 
purpose consists of an unjustified repudiation of the treaty or 
a violation of a provision essential to the accomplishment of 
any object or purpose of the treaty.\108\
---------------------------------------------------------------------------
    \108\ Ibid., Article 60.
---------------------------------------------------------------------------
    The Restatement's treatment of a material breach of an 
international agreement as a ground for the agreement's 
termination follows closely in line with the corresponding 
provisions of the Vienna Convention. Section 335 summarizes the 
U.S. position as follows:
          (1) A material breach of a bilateral agreement by one 
        of the parties entitles the other to invoke the breach 
        as a ground for terminating the agreement or suspending 
        its operation in whole or in part.
          (2) A material breach of a multilateral agreement by 
        one of the parties generally entitles
                  (a) the other parties by unanimous consent to 
                suspend the operation of the agreement in whole 
                or in part or to terminate it, either
                          (i) in the relations between 
                        themselves and the defaulting state, or
                          (ii) as among all the parties;
                  (b) a party specially affected by the breach 
                to invoke it as a ground for suspending the 
                operation of the agreement in whole or in part 
                in the relations between itself and the 
                defaulting state;
                  (c) any party other than the defaulting state 
                to invoke the breach as a ground for suspending 
                the operation of the agreement in whole or in 
                part with respect to itself, if the agreement 
                is of such a character that a material breach 
                of its provisions by one party radically 
                changes the position of every party with 
                respect to the further performance of its 
                obligations under the agreement.\109\
---------------------------------------------------------------------------
    \109\ Rest. 3d, supra, Sec. 335.
---------------------------------------------------------------------------
Impossibility of performance
    The termination of a treaty may result from a supervening 
impossibility of performance, a condition that arises from the 
permanent disappearance or destruction of an object 
indispensable for the execution of the treaty. The 
impossibility has to be permanent and may not be the result of 
a breach by the invoking party either of an obligation under 
the treaty or of any other international obligation owed to any 
other party to the treaty.\110\
---------------------------------------------------------------------------
    \110\ Vienna Convention on the Law of Treaties, supra, Article 61.
---------------------------------------------------------------------------
Rebus sic stantibus
    A treaty may become inapplicable and, therefore, subject to 
being terminated because of a fundamental change of 
circumstances that has occurred since the conclusion of the 
treaty. This longstanding principle of international law is 
commonly called the doctrine of rebus sic stantibus. In order 
for the doctrine to apply, the change in circumstances from 
those that prevailed at the time the treaty was concluded must 
be both fundamental and not foreseen by the parties. In 
addition, the existence of the original circumstances must have 
constituted an essential basis of the consent of the parties to 
be bound by the treaty, and the effect of the change must be 
radically to transform the extent of the obligations still to 
be performed under the treaty. According to the Vienna 
Convention, the doctrine may not be invoked to terminate a 
treaty which establishes a boundary. Similarly, it is 
unavailable if the fundamental change is the result of a breach 
by the party invoking it, a breach either of an obligation owed 
under the treaty or of any other international obligation owed 
to any other party to the treaty.\111\
---------------------------------------------------------------------------
    \111\ Ibid., Article 62.
---------------------------------------------------------------------------
    The doctrine of changed circumstances or rebus sic 
stantibus is described by the Restatement (Third) as follows:
          A fundamental change of circumstances that has 
        occurred with regard to those existing at the time of 
        the conclusion of an international agreement, and which 
        was not foreseen by the parties, may generally be 
        invoked as a ground for terminating or withdrawing from 
        the agreement but only if
                  (a) the existence of those circumstances 
                constituted an essential basis of the consent 
                of the parties to be bound by the agreement and
                  (b) the effect of the change is radically to 
                transform the extent of obligations still to be 
                performed under the agreement.\112\
---------------------------------------------------------------------------
    \112\ Rest. 3d, supra, Sec. 336.

    The Restatement (Third) emphasizes that the invocation of 
this doctrine is ``exceptional,'' \113\ and Hackworth and 
Whiteman cite but one instance of its use by the United States 
(and then to justify suspension rather than termination of a 
treaty). In 1941 President Roosevelt suspended the 
International Load Line Convention of July 5, 1930 (47 Stat. 
2228). A memo from Acting Attorney General Biddle reasoned that 
the convention, which restricted the depth to which ships could 
be loaded and thus the amount of cargo they could carry, had 
been predicated on the existence of peace and the normal flow 
of commerce among nations. He contended that because of the 
wars in Europe and Asia, those conditions no longer existed; 
and as a consequence, he said, ``there is no doubt in my mind 
that the convention has ceased to be binding upon the United 
States.'' He concluded that ``[s]uspension of the convention in 
such circumstances is the unquestioned right of a state 
adversely affected by such essential change.'' \114\
---------------------------------------------------------------------------
    \113\ Ibid., Comment a, at 218.
    \114\ See V Hackworth, supra, pp. 353-356 and 14 Whiteman, supra, 
at 483-485. On December 21, 1945, President Truman revoked the 
proclamation suspending the convention.
---------------------------------------------------------------------------
Jus cogens
    Treaties that conflict with a newly emergent norm of 
international law become void as of the date the new rule of 
jus cogens is recognized or determined to exist by the 
international community.\115\ When a rule of international law 
falls into the category of jus cogens, it admits of no 
derogation. Accordingly, it prevails over and invalidates 
international agreements and other rules of international law 
in conflict with it. The condemnation of aggression in the U.N. 
Charter and of genocide in the Convention on the Prevention and 
Punishment of the Crime of Genocide are asserted to have the 
character of jus cogens.\116\
---------------------------------------------------------------------------
    \115\ Vienna Convention, supra, Article 64.
    \116\ Rest. 3d, supra, Sec. 102, Comment k; and Brownlie, Ian. 
Principles of Public International Law. Clarendon Press, 1990, p. 513.
---------------------------------------------------------------------------
Severance of diplomatic relations
    The Vienna Convention on the Law of Treaties provides that 
the severance of diplomatic or consular relations generally 
does not affect the legal relations of parties to a treaty. 
Legal relations established by a treaty may be adversely 
affected, however, in cases where diplomatic or consular 
relations are indispensable for the application of the 
treaty.\117\
---------------------------------------------------------------------------
    \117\ Vienna Convention on the Law of Treaties, supra, Article 63.
---------------------------------------------------------------------------
Hostilities
    The Vienna Convention expressly reserves questions with 
respect to the effect of hostilities on treaty relations.\118\ 
The older view seems to have been that the outbreak of 
hostilities terminated treaties between the warring parties or, 
at the very least, suspended them. The U.N. Charter's 
condemnation of aggression, however, has introduced an element 
of uncertainty into the older view's conceptual underpinnings. 
Therefore, whether hostilities affect adversely all or some of 
the warring parties' treaty relationships is 
problematical.\119\ The Restatement (Third) notes that court 
decisions in the United States regarding the effect of war on 
treaties have traditionally ``dealt with them pragmatically, 
preserving or annulling as the necessities of war exact.'' 
\120\
---------------------------------------------------------------------------
    \118\ Ibid., Article 73. ``The provisions of the present Convention 
shall not prejudge any question that may arise in regard to a treaty * 
* * from the outbreak of hostilities between States.''
    \119\ Rest. 3d, supra, Sec. 336, Comment e.
    \120\ Ibid., Reporters' Note 4, p. 221, quoting Techt v. Hughes, 
229 N.Y. 221, 241, 128 N.E. 185, 191, cert. den., 254 U.S. 643 (1920).
---------------------------------------------------------------------------
State succession
    In international law rights and obligations arising out of 
international agreements, as well as from other sources, belong 
to the state, not to the government which represents it. 
Accordingly, changes in government as a rule do not interrupt 
the rights and obligations of successor governments. However, 
such may not be the case when one state succeeds, that is, 
replaces, another in terms of being responsible for the 
international relations of a given territory.\121\ State 
succession has happened for centuries. But the breakup of the 
colonial empires of the European powers, the dissolution of the 
Soviet Union and of Yugoslavia, and the emergence of numerous 
new states in recent decades has given particular urgency to 
the question of whether treaties continue to remain in force in 
such circumstances. International law and state practice on the 
issue, however, have been described as ``uncertain and 
confused.'' \122\
---------------------------------------------------------------------------
    \121\ Ibid., Article 2, para. 1(b). `` `[S]uccession of States' 
means the replacement of one state by another in the responsibility for 
the international relations of territory.''
    \122\ Rest. 3d, supra, Sec. 208, Reporters' Note 1.
---------------------------------------------------------------------------
    As it does with respect to the effect of war on treaties, 
the Vienna Convention on the Law of Treaties makes no effort to 
resolve questions concerning the implications of state 
succession for treaty rights and obligations.\123\ Instead, a 
subsequent agreement approved by a U.N. conference in 1978, the 
Vienna Convention on Succession of States in Respect of 
Treaties, attempted to codify the pertinent legal 
standards.\124\ But that agreement has never obtained 
sufficient ratifications to enter into effect.\125\ Moreover, 
the standards set forth in that convention differ in 
significant respects from those articulated in the Restatement 
(Third), and both deviate in some respects from what appears to 
be U.S. practice.
---------------------------------------------------------------------------
    \123\ Vienna Convention on the Law of Treaties, supra, Article 73, 
provides, in part, that ``[t]he provisions of the present Convention 
shall not prejudge any question * * * in regard to a treaty from a 
succession of States * * *''
    \124\ U.N. Doc. A/CONF. 80/31 (August 22, 1978); 17 ILM 1788 
(1978).
    \125\ The United States has never signed the agreement.
---------------------------------------------------------------------------
    The standards set forth in the Vienna Convention on 
Succession of States in Respect of Treaties and in the 
Restatement (Third) vary according to the nature of the 
succession that has occurred. They set forth the following main 
categories:
          (1) When part of the territory of an existing state 
        becomes part of another existing state, both the 
        Convention and the Restatement (Third) provide that the 
        treaties of the predecessor state cease to have effect 
        in that part and the treaties of the successor state 
        come into force.\126\
---------------------------------------------------------------------------
    \126\ Vienna Convention on Succession of States in Respect of 
Treaties, supra, Article 15; Rest. 3d, supra, Sec. 210(1).
---------------------------------------------------------------------------
          (2) When two or more states unite, the Convention 
        states that the treaties of both continue in effect but 
        only with respect to the part of the territory of the 
        new state to which the treaties previously applied. The 
        Restatement (Third) does not disagree but stresses that 
        ``it is sometimes difficult to distinguish between an 
        absorption of one state by another and the merger of 
        two or more states into a Federal union.'' In the case 
        of absorption, the Restatement (Third) states that the 
        treaties of the absorbed state are terminated and those 
        of the absorbing state become applicable to the whole 
        territory.\127\
---------------------------------------------------------------------------
    \127\ Ibid., Article 31 and Sec. 210(2) and Comment c.
---------------------------------------------------------------------------
          (3) When a former colony becomes a new state (termed 
        a ``newly independent State'' by the Convention), both 
        the Convention and the Restatement (Third) provide that 
        the new state does not succeed to the treaty rights and 
        obligations of the colonial power, unless it expressly 
        agrees to them or by conduct is considered to have 
        agreed to them. This rule is designated the ``clean 
        slate'' rule.\128\
---------------------------------------------------------------------------
    \128\ Ibid., Article 16 and Sec. 210(3).
---------------------------------------------------------------------------
          (4) When a new state emerges from a condition other 
        than colonialism, e.g., as the result of secession or 
        the dissolution of the predecessor state, the 
        Convention states a ``continuity'' rule, i.e., that the 
        international agreements of the predecessor state 
        continue in force for every successor state. The 
        Restatement (Third), in contrast, does not 
        differentiate these states from former colonies and 
        applies the clean slate rule to both.\129\ The 
        Convention's differentiation is based on the notion 
        that a colony had no voice in the making of the 
        international agreements of the colonial power, whereas 
        states arising from secession or dissolution 
        purportedly did. The Restatement (Third) rejects that 
        distinction, contending that ``it does not reflect 
        consistent practice and would be difficult to apply.'' 
        \130\
---------------------------------------------------------------------------
    \129\ Ibid., Articles 34-35 and Sec. 210(3).
    \130\ Rest. 3d, supra, Sec. 210, Reporters' Note 4.

    Both the convention and the Restatement (Third) provide 
that pre-existing boundary and other territorial agreements 
continue to be binding on successor states.\131\
---------------------------------------------------------------------------
    \131\ Ibid., Article 11 and Sec. 210(4).
---------------------------------------------------------------------------
    State practice with respect to state succession and treaty 
obligations has not been consistent, however. A 1991 State 
Department study of past state practice found that, 
historically, a spectrum of ``divergent approaches'' has been 
employed depending on the circumstances.\132\ The Restatement 
(Third) notes that in practice even states emerging from 
colonial status ``have found it inconvenient to wipe out 
entirely the often complex network of agreements that had been 
applicable to their territory.'' \133\ U.S. practice, at least 
in recent times, appears to have generally employed the 
continuity principle while being open to negotiations on 
whether particular treaties ought to continue to apply. That 
has been the case with respect to the successor states of the 
former Soviet Union and the former Yugoslavia, the breakup of 
Czechoslovakia, and the separation of Eritrea from 
Ethiopia.\134\
---------------------------------------------------------------------------
    \132\ Williamson, Edwin D., and Osborne, John E., ``A U.S. 
Perspective on Treaty Succession and Related Issues in the Wake of the 
Breakup of the USSR and Yugoslavia,'' 33 Virginia Journal of 
International Law 261, 263-64 (1993).
    \133\ Rest. 3d, supra, Sec. 210, Reporters' Note 3.
    \134\ Williamson, supra, note 132, pp. 261-272; Williams, Paul R., 
``The Treaty Obligations of the Successor States of the Former Soviet 
Union, Yugoslavia, and Czechoslovakia: Do They Continue in Force?'' 23 
Denver Journal of International Law and Policy 1 (1994); and Nash, 
Marian (Leich), ``Contemporary Practice of the United States Relating 
to International Law,'' 87 American Journal of International Law 595 
(1993).
---------------------------------------------------------------------------

    F. U.S. Law and Practice in Terminating International Agreements

                                general

    The constitutional requirements that attend the termination 
of treaties remain a matter of some controversy. The Senate 
Foreign Relations Committee has from time to time contended 
that the termination of treaties requires conjoint action by 
the President and the Senate (or Congress).\135\ But in the 
most recent instance of open conflict between the President and 
some Members of the Senate regarding the termination of a 
treaty--President Carter's termination of the Mutual Defense 
Treaty with Taiwan in 1979--the Federal trial and appellate 
courts reached contrary conclusions regarding the requirements 
of the Constitution for terminating a treaty and the Supreme 
Court avoided resolving the constitutional question.\136\
---------------------------------------------------------------------------
    \135\ The Senate Committee on Foreign Relations early on took the 
position that ``[t]he President and Senate, acting together, [were 
`competent'] to terminate a treaty'' but allowed that in certain 
circumstances a treaty could be terminated by joint action of the 
President and Congress. S. Rept. 97, 34th Cong., 1st Sess. (1857), p. 
3. In 1979 the Senate Committee on Foreign Relations gave renewed 
consideration to the treaty termination issue in the context of 
President Carter's unilateral termination of the 1954 Mutual Defense 
Treaty with Taiwan. It said: ``The Committee has reviewed its actions 
over the last decade because it believes it important that the issue of 
treaty termination be viewed in context. That context * * * is a 
history of efforts by the Committee and the Senate to ensure the 
constitutional prerogatives of the Congress and the special role 
accorded the Senate by the treaty Clause are respected by the executive 
branch * * * The constitutional role of the Congress has too often been 
short-circuited because it was viewed in the executive branch and even 
by some Members of Congress as an impediment to the expeditious 
adoption of substantive policies commanding the support of a majority. 
Thus, when in our recent history the substance of those policies lost 
that support, the procedures once available as checks had atrophied, 
and the Congress was forced to struggle to reclaim its powers. The 
lesson was learned the hard way: procedural requirements prescribed by 
the Constitution must not be disregarded in the name of efficiency, and 
the substance of a policy, however, attractive, can never justify 
circumventing the procedure required by the Constitution for its 
adoption * * * The issue of treaty termination, in the judgment of the 
Committee, must be viewed pursuant to this principle. * * * [T]he 
Committee * * * cannot accept the notion advanced by administration 
witnesses that the President possesses an `implied' power to terminate 
any treaty, with any country, under any circumstances, irrespective of 
what action may have been taken by the Congress by law or by the Senate 
in a reservation to that treaty. Such an argument in this context is at 
odds with the most fundamental precepts underlying the separation of 
powers doctrine * * *.'' S. Rept. 96-119, 96th Cong., 1st Sess. (1979), 
pp. 5-6.
    \136\ A number of Members of Congress attempted to force a judicial 
resolution of the legality of President Carter's action by filing suit 
in Federal court. At trial a Federal district court initially held that 
``any decision of the United States to terminate [the Mutual Defense 
Treaty of 1954] must be made with the advice and consent of the Senate 
or the approval of both houses of Congress. That decision cannot be 
made by the President alone.'' Goldwater v. Carter, 481 F. Supp. 949, 
965 (D.D.C. 1979). But the U.S. Court of Appeals for the District of 
Columbia reversed and held that ``the President did not exceed his 
authority when he took action to withdraw from the * * * treaty, 
without the consent of the Senate or other legislative concurrences.'' 
Goldwater v. Carter, 617 F. 2d 697, 709 (D.C. Cir. 1979). The Supreme 
Court then vacated that decision and ordered the complaint dismissed. 
Goldwater v. Carter, 444 U.S. 996 (1979). In so doing the court issued 
no majority opinion. Then-Justice Rehnquist, joined by Chief Justice 
Burger and Justices Stewart and Stevens, opined that the issue was a 
political question inappropriate for judicial resolution. Justice 
Powell concurred in the court's judgment but disagreed with the 
plurality's reasoning. He said that the case should be dismissed on 
grounds of ripeness but contended that the political question doctrine 
did not stand as an inevitable barrier to judicial resolution of the 
constitutional question. Justice Marshall concurred in the result 
without opinion. Justices Blackmun and White argued that the case 
should be scheduled for briefing and oral argument. Justice Brennan 
dissented, arguing that the decision of the Court of Appeals should be 
affirmed to the extent ``it rests upon the President's well-established 
authority to recognize, and withdraw recognition from, foreign 
governments.'' 444 U.S. at 1006. The direction by the Supreme Court to 
dismiss the complaint vitiates any precedential value of the earlier 
rulings and leaves the issue of Presidential authority to terminate a 
treaty effectively unresolved. However, it should be noted that 
subsequent decisions have made it difficult for Members of Congress to 
bring suit on separation of powers issues. See, for example, Raines v. 
Byrd, 521 U.S. 811 (1997) (Members of Congress held to lack standing to 
challenge the constitutionality of the ``Line Item Veto Act'') and 
Campbell v. Clinton, 203 F. 3d 19 (D.C. Cir.), cert. den., 2000 
U.S.LEXIS 4928 (2000) (Members of Congress held to lack standing to 
challenge the constitutionality of U.S. participation in NATO's 
military actions against the former Yugoslavia).
---------------------------------------------------------------------------
    The Restatement (Third) subscribes to the view that the 
power to terminate treaties is lodged in the President.\137\ 
With regard to international agreements that do not take the 
form of treaties, the conclusion is generally true or, at 
least, has not been seriously challenged in the past. However, 
as indicated at the outset, the assertion of an exclusive 
Presidential power in the context of a treaty is controversial 
and flies in the face of a substantial number of precedents in 
which the Senate or Congress have been participants.
---------------------------------------------------------------------------
    \137\ Rest. 3d, supra, Sec. 339. Section 339, captioned ``Authority 
to Suspend or Terminate International Agreement: Law of the United 
States,'' reads as follows: ``Under the law of the United States, the 
President has the power (a) to suspend or terminate an agreement in 
accordance with its terms; (b) to make the determination that would 
justify the United States in terminating or suspending an agreement 
because of its violation by another party or because of supervening 
events, and to proceed to terminate or suspend the agreement on behalf 
of the United States; or (c) to elect in a particular case not to 
suspend or terminate an agreement.''
---------------------------------------------------------------------------
    In so far as domestic law and practice are concerned, two 
noncontroversial observations may be made with respect to the 
termination of an international agreement. First, as the 
official spokesperson with other governments, the President is 
the person who communicates the notice of impending 
termination.\138\ Second, the termination of an international 
agreement is a political act, and, accordingly, the courts do 
not terminate international agreements.\139\ However, whether a 
treaty to be legally as distinguished from effectively 
terminated requires conjoint action of the political branches 
remains, as previously indicated, a live issue which the 
Supreme Court has sidestepped in the past.
---------------------------------------------------------------------------
    \138\ ``The President is the sole organ of the Nation in its 
external relations, and its sole representative with foreign nations.'' 
United States v. Curtiss-Wright Export Corp., 299 U.S. at 319, quoting 
John Marshall in debate in the House of Representatives on March 7, 
1800. ``* * * Congress has no power to communicate directly with 
foreign powers.'' Willoughby, Constitutional Law of the United States, 
v. 1, 1929, p. 587 (hereafter cited as 1 Willoughby).
    \139\ Charlton v. Kelly, 229 U.S. 447, 474 (1913).
---------------------------------------------------------------------------
    ``The procedure by which, from the viewpoint of national 
law and practice, treaties may be terminated involves questions 
to be resolved in accordance with constitutional and related 
procedures in each country. The United States Constitution is 
silent with respect to the power to terminate treaties. The 
matter was not discussed in the debates of the Constitutional 
Convention in Philadelphia.'' \140\ ``The Constitution tells us 
only who can make treaties for the United States; it does not 
say who can unmake them.'' \141\ As a consequence of the 
Constitution's silence in this regard, ``there has been some 
confusion of doctrine upon this point and a variety in 
practice.'' \142\
---------------------------------------------------------------------------
    \140\ 14 Whiteman, supra, p. 461.
    \141\ Henkin, supra, p. 211.
    \142\ 1 Willoughby, supra, p. 581.
---------------------------------------------------------------------------
    The doctrinal confusion stems in large measure from various 
seemingly inconsistent or opposing concepts. As explained by 
one noted legal scholar:
          From the point of view of American law * * *, the 
        Constitution does not limit the authority to terminate 
        treaties to the possessors of the treatymaking power, 
        i.e., the President and Senate * * *. Article VI [of 
        the Constitution] vests treaties with the same domestic 
        status as Federal statutes, which means that the courts 
        must disregard treaty provisions insofar as they are 
        inconsistent with later acts of Congress. A Federal 
        statute inconsistent with the terms of an existing 
        treaty consequently operates to deprive such treaty of 
        its force as law within this country. Under Article VI 
        the Congress can, in effect, terminate a treaty, so far 
        as its effect in our domestic law is concerned. Such 
        congressional termination, the Supreme Court has said, 
        ``must control in our courts as the later expression of 
        our municipal law, even though it conflicted with the 
        provision of the treaty and the international 
        obligation remained unaffected.''
          At the same time, it is clear that, in such a case, 
        the international obligation does remain unaffected * * 
        *. The repeal of a treaty by a later statute is only a 
        matter of American law. Regardless of the abrogation of 
        the municipal effect of a treaty by an overriding 
        statute, the treaty is not abrogated in the 
        international sense. * * * \143\
---------------------------------------------------------------------------
    \143\ Schwartz, The Powers of Government, v. II (1963), p. 130.

    In addition to effectively terminating a treaty by 
legislatively negating its municipal consequences, the Congress 
may effect a termination in other ways, such as by a 
declaration of war \144\ or, in the case of non-self-executing 
treaties, by failing to approve necessary implementing 
legislation.
---------------------------------------------------------------------------
    \144\ See Bas v. Tingy, 4 Dall. (4 U.S.) 37 (1800); Wright, The 
Control of American Foreign Relations, p. 256; cf. 14 Whiteman, p. 290 
et seq.
---------------------------------------------------------------------------
    All of the foregoing is true notwithstanding that ``[i]n so 
far as a treaty is regarded as an international compact, it 
seems almost too clear for argument that Congress [as 
distinguished from the Senate], not having been made by the 
Constitution a participant in the treatymaking power, has no 
constitutional authority to exercise that power either 
affirmatively or negatively, that is, by creating or destroying 
international agreements.'' \145\ Moreover, ``[i]t may be noted 
that Congress has no means whereby it may itself give notice of 
termination of a treaty to the foreign government concerned 
under the Constitution; Congress has no power to communicate 
directly with foreign Powers.'' \146\ ``But it is well for the 
Senate and for Congress also to remember that it does not lie 
in our hands alone to give this notice to a foreign Government. 
We can not give the notice.'' \147\
---------------------------------------------------------------------------
    \145\ 1 Willoughby, supra, p. 585.
    \146\ Ibid., p. 587.
    \147\ Senator Lodge, chairman, Committee on Foreign Relations, 48 
Congressional Record 587 (1911).
---------------------------------------------------------------------------
    To the President is ascribed the role of being the ``organ 
of foreign relations.'' The Supreme Court has described this 
role as ``the very delicate, plenary and exclusive power of the 
President as the sole organ of the Federal government in the 
field of international relations.'' \148\ Although the Congress 
can effectively terminate a treaty's domestic effect by passage 
of a superseding public law (which requires the President's 
signature or the override of a veto), the termination of the 
outstanding international obligation seems to reside with the 
President since he alone is able to communicate with foreign 
powers. ``The only organ of this Government recognized by 
foreign Governments is the Executive--the President of the 
United States. If he does give the notice, it will be given.'' 
\149\
---------------------------------------------------------------------------
    \148\ United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 
320 (1936).
    \149\ Senator Lodge, supra, note 146.
---------------------------------------------------------------------------
    Whether the President alone can terminate a treaty's 
domestic effect remains an open question.\150\ As a practical 
matter, however, the President may exercise this power since 
the courts have held that they are conclusively bound by an 
executive determination with regard to whether a treaty is 
still in effect.\151\ The same result may apply to a 
congressional termination, particularly if it is regarded as a 
declaration of war.\152\
---------------------------------------------------------------------------
    \150\ See Van der Weyde v. Ocean Transport Co., 297 U.S. 114, 117 
(1936).
    \151\ See Terlinden v. Ames, 184 U.S. 270, 290 (1902); Charlton v. 
Kelly, 229 U.S. 447, 474-476 (1913).
    \152\ See Bas v. Tingy, 4 Dall. 37 (4 U.S.) (1800).
---------------------------------------------------------------------------

                                treaties

    ``International law,'' it has been observed, ``* * * 
recognizes the power--though not the right--of a state party to 
break a treaty and pay damages or abide other international 
consequences.'' \153\ That the U.S. Government has the 
constitutional power to terminate treaties on behalf of the 
United States is clear.\154\ It is a power which inheres in 
sovereignty and is not negated by the supremacy clause or any 
other clause of the Constitution.\155\ Although the other party 
to a broken agreement has a `legitimate grievance,' its avenue 
of redress is ``by the negotiation of a new agreement, or 
failing peaceful modes of settlement, by more drastic means, 
should the grievance be deemed a sufficiently serious one.'' 
\156\ ``A violation of a treaty obligation, as of any other 
obligation, may give rise to a right in the other party to take 
non-forcible reprisals and these reprisals may properly relate 
to the defaulting party's rights under the treaty.'' \157\ But 
``[t]he question whether our government is justified in 
disregarding its engagements with another Nation is not one for 
the determination of the courts * * *. This court is not a 
censor of the morals of other departments of the government * * 
*.'' \158\
---------------------------------------------------------------------------
    \153\ Henkin, supra, p. 211.
    \154\ The Chinese Exclusion Case, 130 U.S. 581, 602 (1889).
    \155\ Ibid.
    \156\ 1 Willoughby, supra, note 115, p. 582; cf. 14 Whiteman, 
supra, note 8, pp. 468 et seq.
    \157\ U.N. International Law Commission, 14 Whiteman, supra, note 
8, p. 468.
    \158\ The Chinese Exclusion Case, 130 U.S. 581, 602-603 (1889).
---------------------------------------------------------------------------
    The actual practice whereby treaties have been terminated 
demonstrates considerable variation. ``In some cases treaties 
have been terminated by the President, in accordance with their 
terms pursuant to action by Congress. In other cases action was 
taken by the President pursuant to resolutions of the Senate 
alone. In still others the initiative was taken by the 
President, in some cases independently, and in others his 
action was later notified to one or both Houses of Congress and 
approved by both Houses. No settled rule or procedure has been 
followed.'' \159\ Hackworth quoted the Solicitor of the 
Department of State as saying ``that the choice of method would 
seem to depend either upon the importance of the international 
question or upon the preference of the Executive.'' \160\ The 
``actual practice'' has been summarized as follows:
---------------------------------------------------------------------------
    \159\ 14 Whiteman, supra, p. 460.
    \160\ V Hackworth, supra, p. 319.
---------------------------------------------------------------------------
          Executive action pursuant to prior authorization or 
        direction by the Congress;
          Executive action pursuant to prior authorization or 
        direction by the Senate;
          Executive action without prior specific authorization 
        or direction, but with subsequent approval by the 
        Congress;
          Executive action without prior specific authorization 
        or direction, but with subsequent approval by the 
        Senate;
          Executive action without specific prior authorization 
        or direction and without subsequent approval by either 
        the Congress or the Senate.\161\
---------------------------------------------------------------------------
    \161\ 14 Whiteman, supra, p. 462.
---------------------------------------------------------------------------
Executive action pursuant to prior authorization or direction by the 
        Congress
    The instances in which the Congress, by joint resolution, 
has authorized or directed the President to terminate treaties 
``have been considerable in number'': \162\
---------------------------------------------------------------------------
    \162\ 1 Willoughby, supra, p. 583.
---------------------------------------------------------------------------
          In some instances the congressional action for the 
        denunciation of a treaty has empowered the President 
        ``at his discretion'' to give the necessary notice to 
        the foreign Governments concerned. In other instances, 
        he has been directed, that is, charged with the duty, 
        of giving the notice. For example the Joint Resolution 
        of Congress of January 18, 1865, relative to the 
        Canadian Reciprocity Treaty, declared that notice of 
        denunciation should be given, and that ``the President 
        of the United States is hereby charged with the 
        communication of such notice.'' Of the same tenor was 
        the Joint Resolution of March 4, 1883, relative to the 
        Treaty of Washington with Great Britain. [This 
        Resolution declared that articles of the treaty ought 
        to be terminated at the earliest time, and that to this 
        end, ``the President be, and he hereby is, directed to 
        give notice to the government of His Britannic Majesty 
        that the provisions of * * * the articles aforesaid 
        will terminate and be of no force on the expiration of 
        two years next after the time of giving such notice.''] 
        \163\
---------------------------------------------------------------------------
    \163\ Ibid.

    In 1846, pursuant to a request from President Polk, a joint 
resolution was enacted providing that ``the President * * * be, 
and he is hereby, authorized, at his discretion, to give to the 
Government of Great Britain the notice required by the second 
article of the said convention of the 6th of August, 1827, for 
the abrogation of the same.'' \164\ That convention provided 
for the joint occupancy of certain parts of the Oregon 
Territory. Similarly, the Seaman's Act of March 4, 1915 \165\ 
requested and directed the President to give notice of the 
termination of the treaty provisions in conflict with the Act. 
Section 16 of the Act expressly provided that ``the President 
be * * * requested and directed * * * to give notice to the 
several Governments, respectively, that so much as herein 
described of all such treaties and conventions between the 
United States and foreign Governments will terminate on the 
expiration of such periods after notices have been given as may 
be required in such treaties and conventions.''
---------------------------------------------------------------------------
    \164\ 9 Stat. 108 (1846).
    \165\ 38 Stat. 1164.
---------------------------------------------------------------------------
    A subsequent Supreme Court decision noted that ``[i]t 
appears that, in consequence, notice was given and that a large 
number of treaties were terminated in whole or in part.'' \166\ 
But in Van der Weyde v. Ocean Transport Co., the court upheld 
the method of terminating treaties used in the Seamen's Act, 
stating: ``From every point of view, it was incumbent upon the 
President, charged with the conduct of negotiations with 
foreign governments and also with the duty to take care that 
the laws of the United States are faithfully executed, to reach 
a conclusion as to the inconsistency between the provisions of 
the treaty and the provisions of the new law.'' The court did 
not opine on whether the language of the statute was binding, 
but stated simply that the President was obligated to 
distinguish between consistencies and inconsistencies in 
foreign treaties and the law in question. Moreover, the court 
expressly stated that the question of the sufficiency of 
Presidential power alone to terminate the treaties was not 
before it; ``* * * the question as to the authority of the 
Executive in the absence of congressional action, or of action 
by the treatymaking power, to denounce a treaty of the United 
States is not here involved.'' \167\
---------------------------------------------------------------------------
    \166\ Van der Weyde v. Ocean Transport Co., 297 U.S. 114, 116 
(1936).
    \167\ Ibid., pp. 117-118.
---------------------------------------------------------------------------
    More recently, Congress mandated the termination of a 
treaty in the Anti-Apartheid Act of 1986. Section 313 of that 
Act required the Secretary of State to terminate immediately, 
in accordance with its terms, the tax treaty and protocol with 
South Africa that had been concluded on December 13, 1946.\168\
---------------------------------------------------------------------------
    \168\ Public Law 99-440, Sec. 313 (October 2, 1987); 100 Stat. 
3515; 22 U.S.C. 5063. The treaty provided for termination upon 1 year's 
notice.
---------------------------------------------------------------------------
    The propriety of congressional action advising or directing 
the President to notify foreign governments of the termination 
of treaties between them and the United States has not gone 
unchallenged. In 1879 President Hayes vetoed the Chinese 
Immigration Bill of that year on the ground, inter alia, that 
it instructed him to abrogate certain articles of the existing 
treaty with China. He said: ``As the power of modifying an 
existing treaty, whether by advising or striking out 
provisions, is a part of the treatymaking power under the 
Constitution, its exercise is not competent for Congress, nor 
would the assent of China to this partial abrogation of the 
treaty make the action of Congress in thus procuring an 
amendment of a treaty, a competent exercise of authority under 
the Constitution.'' \169\
---------------------------------------------------------------------------
    \169\ 1 Willoughby, supra, p. 584.
---------------------------------------------------------------------------
    Similarly, in 1920 President Wilson refused to carry out 
Section 34 of the Merchant Marine Act of that year. That 
section directed the President to terminate any provisions of 
existing treaties that restricted the right of the United 
States ``to impose discriminating customs duties on imports 
entering the United States and discriminatory tonnage duties * 
* *'' A Department of State press release of September 24, 
1920, in part, stated:
          The Department of State has been informed by the 
        President that he does not deem the direction, 
        contained in Section 34 * * * an exercise of any 
        constitutional power possessed by the Congress.
          Secretary Colby, commenting on the point made by the 
        President that Congress had exceeded its powers, called 
        attention to the veto by President Hayes of an Act 
        passed by Congress in 1879. * * * President Hayes 
        declared that ``the power of making new treaties or of 
        modifying existing treaties is not lodged by the 
        Constitution in Congress, but in the President, by and 
        with the advice and consent of the Senate, as shown by 
        the concurrence of two-thirds of that body.'' \170\
---------------------------------------------------------------------------
    \170\ V Hackworth, supra, p. 323. A memorandum from the Solicitor 
for the State Department buttressed this view as follows: ``Congress 
may pass an act violative of a treaty. It may express its sense that a 
treaty should be terminated. But it cannot in effect undertake legally 
to modify a treaty no matter what methods it may employ. In doing that, 
it, in effect, attempts to conduct diplomatic negotiations and to 
encroach on the treatymaking power composed of the President and the 
Senate.''
---------------------------------------------------------------------------
Executive action pursuant to prior authorization or direction by the 
        Senate
    The Department of State has taken the position that the 
principals who can execute treaties can terminate them. ``* * * 
[T]he power that makes the treaty can likewise revoke it; in 
other words, that the President acting in conjunction with the 
Senate of the United States would be authorized to terminate a 
treaty to which the United States is a party.'' \171\ This 
method has also received judicial recognition: ``The President 
and Senate may denounce the treaty and thus terminate its 
life.'' \172\
---------------------------------------------------------------------------
    \171\ Ibid., p. 319.
    \172\ Techt v. Hughes, 229 N.Y. 222, 243 (1920).
---------------------------------------------------------------------------
    This procedure was apparently first employed in the mid-
1850s and precipitated considerable controversy. On January 26, 
1855, the House passed a joint resolution authorizing the 
President to give notice of the termination of the 1826 Treaty 
of Friendship, Commerce, and Navigation between Denmark and the 
United States according to its terms.\173\ But on March 3, 
1855, the Senate adopted instead a simple resolution 
authorizing the President to do so; and President Pierce on 
April 14 of that year gave the requisite notice on the basis of 
the latter authority. Subsequently, at the initiative of 
Senator Sumner, the Senate directed the Committee on Foreign 
Relations to examine the constitutionality of this procedure 
and whether a statute was required to effect the 
termination.\174\ The committee did so and concluded that the 
procedure was constitutionally proper: ``The Committees are 
clear in the opinion that it is competent for the President and 
Senate, acting together, to terminate in the manner prescribed 
by the eleventh article without the aid or intervention of 
legislation by Congress, and that when so terminated it is at 
an end to every intent both as a contract between the 
Governments and as a law of the land.'' \175\ The Senate, 
subsequently, had an extensive debate on the report and on a 
resolution reported by the committee endorsing that view,\176\ 
but the resolution never came to a final vote.
---------------------------------------------------------------------------
    \173\ Congressional Globe, 33d Cong., 2d Sess. (1855), pp. 414-415.
    \174\ Ibid., 34th Cong., 1st Sess. (March 6, 1856), pp. 599-607.
    \175\ S. Rept. 97, 34th Cong., 1st Sess. (1856), p. 3.
    \176\ Congressional Globe, 34th Cong., 1st Sess. (May 8, 1856), p. 
826 (text of resolution) and pp. 1146-1158 (debate).
---------------------------------------------------------------------------
    This procedure has been used on subsequent occasions. In 
1921, for instance, President Wilson sought the Senate's advice 
and consent to the denunciation of the International Sanitary 
Convention of 1903. That convention had been superseded by a 
1912 convention but remained in force for those parties which 
had not ratified the latter convention. The Public Health 
Service believed that situation to ``prevent the enforcement of 
measures necessary for the prevention of diseases from abroad'' 
and said that it would be ``infinitely better to have no 
international sanitary convention than to continue to abide by 
the terms of the Paris convention of 1903.'' \177\ By a 
resolution adopted by a two-thirds majority on May 26, 1921, 
the Senate gave its advice and consent to the denunciation of 
the convention; and the Secretary of State communicated notice 
of the denunciation to the convention's depositary.\178\
---------------------------------------------------------------------------
    \177\ See 61 Congressional Record 1794 (May 26, 1921) (letter of 
April 12, 1920, from D.F. Houston, Secretary of the Treasury, to the 
Secretary of State).
    \178\ V Hackworth, supra, p. 322.
---------------------------------------------------------------------------
Executive action without prior specific authorization or direction, but 
        with subsequent approval by the Congress
    In 1864 the Secretary of State directed the U.S. Minister 
in London to give the British Government the stipulated 6-
months' notice of an intention to terminate the Great Lakes 
Agreement of 1817 regulating armaments on the Great Lakes. The 
minister did so, and a few months later Congress by joint 
resolution ``adopted and ratified'' the notice of 
termination.\179\ In 1911, President Taft, without 
congressional direction but after House passage of a strongly 
worded joint resolution, gave notice to the Russian Government 
of the termination of the commercial treaty of 1832 with that 
country. Thereafter, he communicated his action to the Senate, 
``as a part of the treatymaking power of this Government,'' for 
its approval. The Senate Foreign Relations Committee, however, 
reported a joint resolution by which the notice of termination 
by the President was ``adopted and ratified.'' This joint 
resolution was passed by both houses of Congress and was signed 
by the President on December 21, 1911.\180\
---------------------------------------------------------------------------
    \179\ 5 Moore, supra, p. 323.
    \180\ 37 Stat. 627 (1911); V Hackworth, pp. 319-320; 1 Willoughby, 
p. 582.
---------------------------------------------------------------------------
Executive action without specific prior authorization or direction, but 
        with subsequent approval by the Senate
    Although many authorities recognize this method and affirm 
its use, supporting examples are rarely provided. It should be 
noted that President Taft in terminating the 1832 treaty with 
Russia, discussed above, sought to employ this mode. Although 
his action was subsequently approved by joint congressional 
action, it seems likely that his initial approach was based on 
some precedent.
    During the Senate debate on the resolution, Senator Lodge, 
chairman, Foreign Relations Committee, endorsed the President's 
use of this method. He said:
          The President has entire authority to give that 
        notice and to ask for the approval of Congress or 
        approval of the Senate. He takes the view, which is 
        held by many of the best judges that the treatymaking 
        power is entirely able to terminate a treaty which 
        carries with it no legislation and the President did 
        nothing unusual in this action.\181\
---------------------------------------------------------------------------
    \181\ 48 Congressional Record 455 (1911).

                                 * * *

          The Senate and the President alone can end an 
        existing treaty by simply agreeing to a new one, they 
        can do it without any consultation with any other body, 
        and certainly where no legislation is involved it seems 
        to me that those who represented the high contracting 
        party in the making of a treaty are capable of 
        representing the high contracting party in its 
        unmaking.\182\
---------------------------------------------------------------------------
    \182\ Ibid., p. 480.
---------------------------------------------------------------------------
Executive action without specific prior authorization or direction, and 
        without subsequent approval by either the Congress or the 
        Senate
    There appears to be some uncertainty among the commentators 
as to the first termination of a treaty by a President acting 
alone. But one of the earliest appears to be the termination in 
1899 of the most-favored-nation clauses in a commercial treaty 
of 1850 with France, as extended to Switzerland under a 
commercial agreement entered into in 1898. A 1936 memorandum 
from the State Department to President Roosevelt cited that 
instance in justification of its conclusion that the President 
could also give notice of an intent to terminate a treaty with 
Italy ``without seeking the advice and consent of the Senate or 
the approval of Congress to such action.'' \183\ Hackworth 
gives a number of other examples of the ``President acting 
alone,'' including the terminations of a 1926 convention with 
Mexico for the prevention of smuggling in 1927; a 1927 
convention for the abolition of import and export prohibition 
and restriction in 1933; an 1871 Treaty of Commerce and 
Navigation with Italy in 1936; and a 1911 commercial treaty 
with Japan in 1939.\184\ Henkin adds to the list President 
Roosevelt's termination of an extradition treaty with Greece in 
1933 because Greece had refused to extradite a particular 
fugitive (Mr. Insull).\185\ President Johnson in 1965 gave 
notice of the withdrawal of the United States from the 
Convention for the Unification of Certain Rules Relating to 
International Transportation by Air (the Warsaw 
Convention),\186\ although he subsequently withdrew it 1 day 
before the denunciation would have taken effect.\187\
---------------------------------------------------------------------------
    \183\ V Hackworth, supra, pp. 330-331.
    \184\ Ibid., pp. 329-332.
    \185\ Henkin, supra, p. 212.
    \186\ 49 Stat. 3000; TS 876; 2 Bevans 983.
    \187\ See Senate Foreign Relations Committee Print, Termination of 
Treaties: The Constitutional Allocation of Power (1978), pp. 397-398, 
for additional examples given by the Department of State Legal Adviser.
---------------------------------------------------------------------------
    As already noted, President Carter, on December 15, 1978, 
gave notice of termination of the Mutual Defense Treaty with 
Taiwan. This action not only was taken without prior or 
subsequent authorization of Congress or of the Senate but in 
the face of an expression of the sense of Congress ``that there 
should be prior consultation between the Congress and the 
executive branch on any proposed policy changes affecting the 
continuation in force of the Mutual Defense Treaty of 1954.'' 
\188\
---------------------------------------------------------------------------
    \188\ 92 Stat. 730, 746 (1978).
---------------------------------------------------------------------------
    President Reagan also unilaterally terminated a treaty with 
little apparent protest that Congress was not involved. On May 
1, 1985, he ordered the imposition of economic sanctions 
against Nicaragua under the general authority of the 
International Emergency Economic Powers Act. These sanctions 
included notification of the intent to terminate the Treaty of 
Friendship, Commerce, and Navigation with Nicaragua. After the 
required waiting period of 1 year, the treaty was 
terminated.\189\
---------------------------------------------------------------------------
    \189\ U.S. Congress. House. Committee on Foreign Affairs. Congress 
and Foreign Policy, 1985-1986 (99th Cong.), p. 7.
---------------------------------------------------------------------------
    Finally, it should be noted that in one instance Congress 
adopted a statute that purported to terminate treaties of its 
own force, without the necessity of any notice by the 
President. On July 7, 1798, President Adams signed into law a 
measure providing ``[t]hat the United States are of right freed 
and exonerated from the stipulations of the treaties, and of 
the consular convention, heretofore concluded between the 
United States and France; and that the same shall not 
henceforth be regarded as legally obligatory on the government 
or citizens of the United States.'' \190\ In the 1856 report of 
the Senate Foreign Relations Committee previously referred to, 
this action by the Congress was viewed as being tantamount to a 
declaration of war.\191\ In fact, 2 days following its passage, 
the Congress authorized hostilities against France, and in Bas 
v. Tingy the Supreme Court regarded these acts as, in effect, 
declaring war.\192\ It might be noted, however, that France 
refused to recognize the abrogation of the treaties.\193\
---------------------------------------------------------------------------
    \190\ Act of July 7, 1798; 1 Stat. 578.
    \191\ S. Rept. 97, 34th Cong., 1st Sess., pp. 4-5.
    \192\ 4 Dall. (4 U.S.) 37 (1800).
    \193\ Moore, John Bassett. A Digest of International Law, Vol 5. 
U.S. Government Printing Office, 1906, pp. 608 et seq. A century later, 
Congress' action was held to have effectively terminated the treaties 
both municipally and internationally. See Hooper v. United States, 22 
Ct. Cl. 408, 425-26 (1887). Cf. Ship James Williams v. United States, 
37 Ct. Cl. 303 (1902).
---------------------------------------------------------------------------
    The arguments in support of the respective claims of the 
President and the Congress as regards the proper method of 
terminating treaties turn on a number of factors. The Senate's 
role in treaty termination is said to derive from its 
participation in treatymaking. With respect to the 
congressional role, much weight is given to a treaty's status 
as law pursuant to Article VI of the U.S. Constitution, that 
is, to the distinction between a treaty as an international 
compact, and, under American law, as domestic law. Arguments on 
behalf of Presidential claims focus prominently on his 
preeminent position in foreign affairs.\194\
---------------------------------------------------------------------------
    \194\ See Committee Print, supra, note 17, pp. 145 and 395 for 
elaboration of these views by former Senator Barry Goldwater and State 
Department Legal Adviser Herbert J. Hansel.
---------------------------------------------------------------------------

                          executive agreements

    As indicated at various points in the foregoing discussion, 
the President's authority to terminate executive agreements, in 
particular sole executive agreements, has not been seriously 
questioned in the past. To the extent that the agreement in 
question is authorized by statute or treaty, its mode of 
termination likely could be regulated by appropriate language 
in the authorizing statute or treaty. Thus, the Restatement 
(Third) states: ``If the United States Senate, in giving 
consent to a treaty, declares that it does so on condition that 
the President shall not terminate the treaty without the 
consent of Congress or of the Senate, or that he shall do so 
only in accordance with some other procedure, that condition 
presumably would be binding on the President if he proceeded to 
make the treaty. * * * Congress could impose such a condition 
in authorizing the President to conclude an executive agreement 
that depended on Congressional authority.'' \195\
---------------------------------------------------------------------------
    \195\ Rest. 3d, supra, Sec. 339, Comment a (emphasis added).
---------------------------------------------------------------------------
    In the Comprehensive Anti-Apartheid Act of 1986 Congress 
mandated the termination, in accordance with its provisions, of 
an executive agreement between the United States and South 
Africa, namely, the Agreement Between the Government of the 
United States of America and the Government of the Union of 
South Africa Relating to Air Services Between Their Respective 
Territories.\196\
---------------------------------------------------------------------------
    \196\ Public Law 99-440, supra, note 167, Sec. 306(b)(1). The 
agreement provided for termination upon 1 year's notice, and the 
Secretary of State gave the required notice. But the Act also directed 
the Secretary of Transportation to revoke the permit of any air carrier 
designated by the government of South Africa to provide service under 
the agreement 10 days after the Act's enactment. Upon suit challenging 
the Secretary's revocation of the permit of South African Airways 
pursuant to this provision as a violation of the agreement, the 
revocation was upheld on the grounds that a statute can supersede an 
international agreement. South African Airways v. Dole, 817 F. 2d 119 
(D.C. Cir.), cert. den., 484 U.S. 896 (1987).


       X. CONGRESSIONAL OVERSIGHT OF INTERNATIONAL AGREEMENTS \1\
---------------------------------------------------------------------------

    \1\ Prepared by Marjorie Ann Browne, Specialist in International 
Relations and Lois B. McHugh, Analyst in International Relations.
---------------------------------------------------------------------------
                              ----------                              

     A major problem for the legislative branch in the foreign 
policy area has been the tendency of the executive branch to 
make important international agreements by executive power 
alone, bypassing the advice and consent role of the Senate in 
treaty approval and sometimes failing to inform Congress of 
agreements with other countries that are considered binding 
under international law. Two objectives have predominated 
congressional perspectives on this issue. The first has been to 
ensure that Congress is aware of all important U.S. agreements. 
The second has been to provide a process which will ensure that 
important U.S. commitments are made with legislative approval.
     The primary tools available to Congress for its oversight 
of international agreements, especially international 
agreements other than treaties, start with the Case-Zablocki 
Act on transmittal of international agreements other than 
treaties.\2\ Other tools include consultations on the form of 
agreements; legislation to implement concluded agreements; 
legislation requiring congressional approval of concluded 
agreements; required reports to Congress on some aspect of 
international agreements; consultation between Members or 
congressional staff and appropriate executive branch officials; 
and hearings. This chapter discusses these and other tools for 
congressional oversight.
---------------------------------------------------------------------------
    \2\ Public Law 92-403, ``An Act to require that international 
agreements other than treaties, hereinafter entered into by the United 
States, be transmitted to the Congress within sixty days after the 
execution thereof.'' This law is often referred to as the Case-Zablocki 
Act, or the Case Act for short.
---------------------------------------------------------------------------

                          A. The Case Act \3\
---------------------------------------------------------------------------

    \3\ Ibid.
---------------------------------------------------------------------------
     The fundamental thrust of the Case Act is that the 
executive branch transmit to the Congress within 60 days after 
entry into force, the text of all international agreements not 
submitted to the Senate as treaties. All forms of agreements, 
whether written or oral, classified or unclassified, negotiated 
by the State Department or by other executive agencies, are 
included in the requirement. The goal is to ensure 
congressional knowledge of commitments made by the executive 
branch on behalf of the U.S. Government. Passage of the 
legislation has its roots in a number of earlier congressional 
efforts.

                                 origins

 Provisions for publication
     Congress historically tried to ensure that it receive 
copies of all treaties and agreements entered into force on 
behalf of the United States. The Public Printing Act of 1895 
required the Secretary of State, at the end of each Congress, 
to edit, print, bind, and distribute the Statutes at Large that 
would include not only ``all laws, joint and concurrent 
resolutions passed by Congress,'' but ``also all conventions, 
treaties, proclamations, and agreements.'' (28 Stat. 615) The 
language in this Act was further refined in 1938, to include:
         all treaties to which the United States is a party 
        that have been proclaimed since the date of the 
        adjournment of the regular session of Congress next 
        preceding; all international agreements other than 
        treaties to which the United States is a party that 
        have been signed, proclaimed, or with reference to 
        which any other final formality has been executed, 
        since that date; \4\
---------------------------------------------------------------------------
    \4\ 52 Stat. 760. The full citation follows: Printing Act, Chapter 
23, section 73 (28 Stat. 615), approved January 12, 1895; amended by 
Public Law 657, 75th Cong., approved June 16, 1938, 52 Stat. 760.

     In practice, a number of agreements escaped publication. 
In 1909, the Senate, in S. Res. 252, 60th Congress, authorized 
preparation, under the Senate Committee on Foreign Relations, 
of a ``compilation of treaties, conventions, important 
protocols, and international acts to which the United States 
may have been a party from 1778 to March 4, 1909, and such 
other material pertaining to treaties as may be recommended for 
insertion * * * by the Secretary of State.'' The resulting 
compilation eventually covered 1776 through 1937 and was the 
only official comprehensive collection of U.S. treaties and 
international agreements covering that period.\5\ In the 
interim period between 1938 and 1949, a hodgepodge of published 
bits and pieces was developed. The State Department issued as 
individual pamphlets the Executive Agreements Series (EAS) and 
Treaty Series (TS) until 1945 when the Treaties and Other 
International Acts Series (TIAS) replaced them as the form for 
the texts of individual agreements. Until the collection 
compiled under Charles Bevans was completed, no official 
consolidation of all U.S. treaties and international agreements 
concluded between 1937 and 1950 had been published.\6\
---------------------------------------------------------------------------
    \5\ Treaties, Conventions, International Acts, Protocols, and 
Agreements Between the United States and Other Powers. Volumes 1 and 2, 
covering 1776-1909, were compiled by William M. Malloy; the third, 
covering 1910-1923, by C.F. Redmond; and the fourth volume, covering 
1923-1937, was compiled by Edward J. Trenwith. Washington, D.C., U.S. 
Government Printing Office, 1910-1938.
    \6\ Treaties and Other International Agreements of the United 
States of America, 1776-1949. Compiled under the direction of Charles 
I. Bevans. Washington, D.C., U.S. Government Printing Office, 1968-1974 
and 1976; 13 vols.
---------------------------------------------------------------------------
     In 1950, when the function of publishing the U.S. Statutes 
at Large was transferred from the Secretary of State to the 
Administrator of General Services, Congress required the 
Secretary to publish, starting January 1, 1950,
         a compilation entitled ``United States Treaties and 
        Other International Agreements,'' which shall contain 
        all treaties to which the United States is a party that 
        have been proclaimed during each calendar year, and all 
        international agreements other than treaties to which 
        the United States is a party that have been signed, 
        proclaimed, or with reference to which any other final 
        formality has been executed, during each calendar 
        year.\7\
---------------------------------------------------------------------------
    \7\ 64 Stat. 980; 1 U.S.C. Sec. 112a.

     The 1895 Act had provided that a copy of the Statutes at 
Large would be automatically provided to the office of each 
Member of the House and Senate. The 1950 revision of section 
112 and addition of section 112a did not provide for 
distribution to offices in this manner. Public Law 94-59, in 
1975, stipulated that copies of the U.S. Treaties and Other 
International Agreements series would not be available to 
Senators and Representatives unless specifically requested in 
writing.\8\
---------------------------------------------------------------------------
    \8\ 89 Stat. 296.
---------------------------------------------------------------------------
    The inability of the State Department to publish promptly 
international agreements that had entered into force, 
accompanied by a near absence of public requests for copies of 
those agreements still unpublished, led to Congressional 
amendment in 1994 of 1 U.S.C. 112a.\9\ Section 138 of the 
Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 
(Public Law 103-236) which authorized the Secretary of State to 
determine that certain categories of international agreements 
do not require publication.\10\ Based on the criteria set forth 
in section 138, the Secretary of State issued a proposed rule 
or determination in October 1995 that was published as a final 
rule on February 26, 1996, listing the following categories of 
agreements as not requiring publication:
---------------------------------------------------------------------------
    \9\ Federal Register, October 23, 1995: 54319.
    \10\ Section 138. ``Publishing International Agreements.'' listed 
``the following criteria: (1) such agreements are not treaties * * * 
pursuant to section (2)(2) of Article II of the Constitution * * *; (2) 
the public interest in such agreements is insufficient to justify their 
publication, because (A) as of the date of enactment of the Foreign 
Relations Authorization Act, Fiscal Years 1994 and 1995, the agreements 
are no longer in force, (B) the agreements do not create private rights 
or duties, or establish standards intended to govern government action 
in the treatment of private individuals; (C) in view of the limited or 
specialized nature of the public interest in such agreements, such 
interest can adequately be satisfied by an alternative means; or (D) 
the public disclosure of the text of the agreement would, in the 
opinion of the President, be prejudicial to the national security of 
the United States; and (3) copies of such agreements * * * will be made 
available by the Department of State upon request.''
---------------------------------------------------------------------------
          (1) Bilateral agreements for the rescheduling of 
        intergovernmental debt payments;
          (2) Bilateral textile agreements concerning the 
        importation of products containing specified textile 
        fibers done under the Agricultural Act of 1956, as 
        amended;
          (3) Bilateral agreements between postal 
        administrations governing technical arrangements;
          (4) Bilateral agreements that apply to specified 
        military exercises;
          (5) Bilateral military personnel exchange agreements;
          (6) Bilateral judicial assistance agreements that 
        apply only to specified civil or criminal 
        investigations or prosecutions;
          (7) Bilateral mapping agreements;
          (8) Tariff and other schedules under the General 
        Agreement on Tariffs and Trade and under the Agreement 
        of the World Trade Organization;
          (9) Agreements that have been given a national 
        security classification pursuant to Executive Order No. 
        12958 or its successors; and (b) Agreements on the 
        subjects listed in paragraphs (a)(1) through (9) of 
        this section that had not been published as of February 
        26, 1996.

     While the laws cited above endeavored to ensure that 
Congress, and the public, would have access to all treaties and 
international agreements other than treaties, no provisions 
were made to ensure that the Congress would, in some way, have 
access to international agreements not in the public domain, 
that is, classified agreements. In addition, experience had 
demonstrated that U.S. Government agencies other than the State 
Department concluded agreements with other governments and the 
texts of those agreements usually were not sent to the State 
Department. These so-called agency-to-agency agreements were 
another category of agreement not easily accessible to the 
Congress.\11\
---------------------------------------------------------------------------
    \11\ See below, Impact and Assessments of the Case Act, for 
additional discussion of transmittal problems.
---------------------------------------------------------------------------
 The Bricker amendment and its legacy
     In the 1950s, a number of concerns were expressed by some 
in Congress and in other American forums, such as the American 
Bar Association, that: (1) rights and freedoms guaranteed by 
the Constitution might be altered by treaty; (2) that the 
President might ``legislate'' by international agreement or 
executive agreement without Senate approval; (3) that the 
Federal government might acquire through treaties the power to 
legislate in areas primarily within the jurisdiction of the 
States; and (4) that treaties might acquire Senate approval by 
a vote of only a small number of Members present. These 
concerns grew out of the foreign policy activism of the 
executive branch during and since World War II. Some Members 
were concerned over secret agreements such as those made by 
Presidents Franklin Roosevelt and Harry S. Truman with Stalin 
at Yalta and Potsdam in 1945, and the extent to which those and 
similar agreements might never be routinely shared with the 
Senate or with Congress. Others were concerned that active U.S. 
participation in the United Nations and U.N.-affiliated 
agencies might lead to U.S. adherence to treaties and 
agreements that would contravene or abrogate such U.S. 
constitutional principles as the reserved powers of the States 
and the fundamental freedoms guaranteed and protected in the 
bill of rights.
     Senator John W. Bricker in late 1951 introduced the first 
in a series of resolutions to amend the Constitution with 
respect to treaties and executive agreements. The Bricker 
amendment, as it was reported by the Senate Judiciary Committee 
on June 15, 1953, would have given Congress the power to 
regulate all executive and other agreements with any foreign 
power or international organization. Additionally, the 
amendment would have made any provision of a treaty invalid if 
it conflicted with the Constitution and an executive agreement 
effective in domestic law only through passage of enacting 
legislation. Debate on the Senate floor in January-February 
1954 centered around three versions of the Bricker legislation: 
the Judiciary Committee amendment; a series of amendments 
proposed by Republican leaders, including William F. Knowland 
and Homer Ferguson; and a substitute resolution sponsored by 
Senator Walter F. George. On February 26, Senator George's 
version was agreed to as a substitute for the Republican 
leadership amendment. The same day, the George version of the 
proposed constitutional amendment failed to pass the Senate 
with the required two-thirds majority by one vote.\12\
---------------------------------------------------------------------------
    \12\ For history and contextual discussion of the amendment, see 
the following: Tananbaum, Duane A. The Bricker Amendment Controversy: 
Its Origins and Eisenhower's Role. Diplomatic History, v. 9, Winter 
1985: 73-93; Grant, Philip A. The Bricker Amendment Controversy. 
Presidential Studies Quarterly, Summer 1985: 572-582; and Reichard, 
Gary W. Eisenhower and the Bricker Amendment. Prologue, Summer 1974: 
88-99. For legislative history discussion, see Congressional Quarterly 
Almanac for the year of interest.
---------------------------------------------------------------------------
     Support in the Congress for this type of limitation faded 
through the 87th Congress (1961-1962) and disappeared in the 
89th Congress (1965-1966).\13\ Senator Bricker introduced a 
version of his 1953 resolution in the 84th Congress (1955-1956) 
and the Subcommittee on Constitutional Amendments of the Senate 
Judiciary Committee held hearings in April and May 1955 that 
generated a 1016-page record.\14\ The full committee did not 
report the resolution until the following year, offering a 
substitute resolution, that was never considered on the Senate 
floor. Bricker's final proposal was introduced during the 85th 
Congress (1957-1958) and while hearings were held, the 
resolution was not reported from committee. After Bricker left 
the Senate, other Members of the Senate and House introduced 
similar resolutions in the 87th and 88th (House resolutions 
only) Congresses, but no action was taken on them.
---------------------------------------------------------------------------
    \13\ U.S. Library of Congress. Legislative Reference Service. The 
Bricker Amendment and Similar Proposals for Amending the Treaty 
Provisions of the Constitution. By Hugh P. Price, Dec. 2, 1964.
    \14\ U.S. Congress. Senate. Committee on the Judiciary. Treaties 
and Executive Agreements. Hearings before a subcommittee, 84th Cong., 
1st Sess. on S.J. Res. 1, April and May 1955. Washington, U.S. 
Government Printing Office, 1955.
---------------------------------------------------------------------------
    In 1985 one of the fundamental issues of the Bricker 
amendment debate was revived--the question of the supremacy of 
the Constitution over treaties. At the initiative largely of 
Senator Helms, the Senate included the following language as a 
reservation in its resolution of ratification on the U.N. 
Convention on the Prevention and Punishment of the Crime of 
Genocide:
        Nothing in this Convention requires or authorizes 
        legislation or other action by the United States of 
        America prohibited by the Constitution of the United 
        States as interpreted by the United States.

    In succeeding Congresses the Senate extended its use of the 
condition not only to other human rights treaties but also to 
those concerning mutual legal assistance and extradition. 
Beginning with the 105th Congress, the Senate began including 
the condition in the resolutions of ratification on virtually 
all treaties. As the result of compromises achieved in the late 
1980s and early 1990s, however, the condition is no longer in 
the form of a reservation (which requires notice to, and 
agreement by, the other party or parties to the treaty) but is 
now expressed as a proviso.\15\
---------------------------------------------------------------------------
    \15\ For a more detailed description of the evolution of this 
condition, see the section in Chapter VI on the ``Condition Regarding 
Supremacy of the Constitution.''
---------------------------------------------------------------------------
 National commitments concerns
     Congress became concerned in the late 1960s over the 
impact of U.S. involvement in other countries, such as Vietnam, 
and how the United States became heavily committed militarily 
in such countries. During August 1966 and February and March 
1967, the Preparedness Investigating Subcommittee of the Senate 
Committee on Armed Services held hearings on worldwide military 
commitments. These were followed in August and September 1967 
by hearings before the Senate Foreign Relations Committee on 
U.S. commitments to foreign powers, focusing on S. Res. 151, a 
resolution on national commitments.
     On January 23, 1969, the Foreign Relations Committee 
created a Subcommittee on U.S. Security Agreements and 
Commitments Abroad (known as the Symington Subcommittee after 
its chairman, Senator Stuart Symington) for the duration of the 
91st Congress. This subcommittee uncovered significant 
information previously unknown to Congress about various 
security arrangements with other countries that had been made 
by executive agreement. The information gathered by the 
subcommittee was instrumental in the passage of other 
legislation in the area of executive agreements and secret 
commitments.\16\
---------------------------------------------------------------------------
    \16\ Over a 22-month period, this subcommittee ``held 37 days of 
hearings, with 48 witnesses covering U.S. military forces, facilities 
and security programs in 13 countries, plus NATO.'' See U.S. Congress. 
Senate. Committee on Foreign Relations. Subcommittee on United States 
Security Agreements and Commitments Abroad. United States Security 
Agreements and Commitments Abroad, Hearings, 91st Congress. Washington, 
U.S. Government Printing Office, 1970. 2 v., 2442 p. (Issued initially 
in 11 different parts; final publication in 2 volumes)
---------------------------------------------------------------------------
     Meanwhile, on June 25, 1969, the Senate passed a national 
commitments resolution, S. Res. 85, expressing its sense that a 
U.S. national commitment should result ``only from affirmative 
action taken by the executive and legislative branches of the 
United States Government by means of a treaty, statute, or 
concurrent resolution of both houses of Congress specifically 
providing for such commitment.'' The resolution was not legally 
binding on the President since it was not legislation, as was 
the War Powers Resolution. As a statement of Senate policy, 
however, the resolution established a guidepost that might be 
used in tracking future presidential actions.
     In December 1970, the Symington Subcommittee concluded its 
lengthy investigations with a report, ``Security Agreements and 
Commitments Abroad,'' that included a number of observations 
and recommendations over the use or failure to use treaties and 
executive agreements in the making of national commitments. The 
subcommittee recommended that appropriate congressional 
committees
         request and receive full information on all 
        understandings and agreements of a security nature 
        which are undertaken between the United States and 
        foreign countries or their leaders. Where appropriate, 
        the proper committees should, in executive session, be 
        informed on the progress of negotiations to this 
        end.\17\
---------------------------------------------------------------------------
    \17\ U.S. Congress. Senate. Committee on Foreign Relations. 
Subcommittee on United States Security Agreements and Commitments 
Abroad. Security Agreements and Commitments Abroad; report. Washington, 
U.S. Government Printing Office, 1970. (91st Cong., 2d Sess. Committee 
Print.) p. 28.

     Congressional concerns over U.S. national commitments did 
not diminish in the 1990s. In November 1990, Congress required 
the President annually to report to the House and Senate Armed 
Services Committees and to the House Foreign Affairs and Senate 
Foreign Relations Committees on U.S. security arrangements 
with, and commitments to, other nations.\18\ The fundamental 
concern of this Senate-initiated provision was with the 
``ability of the United States to meet worldwide commitments in 
the future,'' taking into account the ``sizing down'' of 
defense budgets and reduced force structure. The Senate Armed 
Services Committee believed it appropriate that a review be 
done to determine whether or not these commitments were ``still 
necessary in the changing international environment.'' \19\ 
This report was transmitted to the required committees in 1991 
and 1992.
---------------------------------------------------------------------------
    \18\ National Defense Authorization Act for Fiscal Year 1991, 
Section 1457, Public Law 101-510, approved November 5, 1990. The study 
shall include, (1) A description of (A) each security arrangement with, 
or commitment to, other nations, whether based upon (i) a formal 
document (including a mutual defense treaty, a pre-positioning 
arrangement or agreement, or an access agreement), or (ii) an expressed 
policy; and (B) the historical origins of each such arrangement or 
commitment. (2) An evaluation of the ability of the United States to 
meet its commitments based on the projected reductions in the defense 
structure of the United States. (3) A plan for meeting each of those 
commitments with the force structure projected for the future. (4) An 
assessment of the need to continue, modify, or discontinue each of 
those arrangements and commitments in view of the changing 
international security situation. See Chapter XI, for discussion of the 
1992 report.
    \19\ Senate Report 101-384, p. 238 (101st Cong., 2d Sess.).
---------------------------------------------------------------------------
 Military base agreements (Spain, Portugal, Bahrain)
     Another recommendation of the Symington Subcommittee urged 
that Congress ``take a realistic look at the authority of the 
President to station troops abroad and establish bases in 
foreign countries.'' \20\ Referring to a practice of ``creeping 
commitment,'' the subcommittee observed that
---------------------------------------------------------------------------
    \20\ Ibid., p. 28.
---------------------------------------------------------------------------
         Overseas bases, the presence of elements of United 
        States armed forces, joint planning, joint exercises, 
        or extensive military assistance programs represent to 
        host governments more valid assurances of United States 
        commitment than any treaty or executive agreement.\21\
---------------------------------------------------------------------------
    \21\ Ibid., p. 20.

     This issue came to the fore in early August 1970, when the 
Nixon Administration concluded an executive agreement with 
Spain extending the original 1953 agreement governing American 
use of bases in Spain (the agreement had already been extended 
in 1963). A number of Senators expressed displeasure that the 
agreement was not being negotiated as a treaty. Senator J. 
William Fulbright, chairman of the Senate Foreign Relations 
Committee, argued that ``This Spanish agreement is a classic 
example of how to enlarge the commitments of this country by 
secret agreements and executive agreements without the approval 
of Congress.'' \22\ On December 11, 1970, the Senate agreed to 
S. Res. 469 (91st Congress), expressing the sense of the Senate 
that nothing in the executive agreement with Spain should be 
deemed to be a national commitment by the United States. In 
1976, a Treaty of Friendship and Cooperation with Spain that 
included provisions on use of the bases was finally concluded 
as a treaty and approved by the Senate. In 1981, the Senate 
Foreign Relations Committee agreed that future base agreements 
with Spain could be concluded as executive agreements after 
Spain became a member of NATO, a step finalized in May 1982.
---------------------------------------------------------------------------
    \22\ Fulbright, James W. Spanish Bases. Congressional Record vol. 
129, part 20, July 31, 1970: 28791.
---------------------------------------------------------------------------
     In December 1971, the Nixon Administration concluded 
executive agreements with Portugal and Bahrain, providing for 
continued stationing of U.S. military personnel at a base in 
the Azores and continued use of support facilities in Bahrain. 
In response to this action, several members of the Senate 
Foreign Relations Committee introduced S. Res. 214, that any 
agreement with Portugal ``should be submitted as a treaty to 
the Senate for advice and consent.'' In January 1972, Senator 
Clifford Case introduced an amendment to the resolution, to the 
effect that the agreement with Bahrain should also be submitted 
to the Senate as a treaty. In reporting favorably on S. Res. 
214, the committee recalled that ``no lesson'' had been learned 
from the experience with the Spanish base agreement. These two 
agreements, the committee report continued, raised ``important 
foreign policy questions'' and the ``submission of these 
agreements as treaties * * * is the best and most appropriate 
way'' of scrutinizing these questions.\23\ As passed by the 92d 
Congress in March 1972, S. Res. 214 stated that ``any agreement 
with Portugal or Bahrain for military bases or foreign 
assistance should be submitted as a treaty to the Senate for 
advice and consent.'' Neither of these resolutions had the 
force of law. Over the following 2 years, unsuccessful attempts 
were made in Congress to tie appropriation of funds to 
implement these agreements to their being submitted as 
treaties.
---------------------------------------------------------------------------
    \23\ U.S. Congress. Senate. Committee on Foreign Relations. 
Agreements with Portugal and Bahrain. Report to Accompany S. Res. 214. 
Washington, U.S. Government Printing Office, 1972. (92d Cong., 2d Sess. 
S. Rept. No. 92-632) pp. 5, 8.
---------------------------------------------------------------------------
 Separation of Powers Subcommittee approach
     In spring 1972, a few months before adoption of the Case 
Act, another series of legislative proposals became the focus 
of hearings and legislative debate. The overall thrust of the 
proposals, spearheaded by Senator Sam Ervin, was a requirement 
that all international agreements other than treaties be 
transmitted to Congress 60 days before their entry into force. 
Congress would have the opportunity to adopt a resolution of 
disapproval before the expiration of the 60-day waiting period. 
In the absence of a disapproval resolution, the agreements 
would enter into force at the end of the 60-day period. 
Ultimately, none of these proposals was enacted.
     The original legislation (S. 3475, 92d Congress) was 
introduced in April 1972, with 5 days of hearings concluding on 
May 19, 1972. Senator Ervin, who chaired the Separation of 
Powers Subcommittee of the Senate Judiciary Committee, 
reintroduced the legislation in 1973 (S. 1472, 93d Congress) 
and, in 1974, in S. 3830 (93d Congress), added a section that, 
in effect, removed from coverage most executive agreements. 
Section 4 of S. 3830 provided that executive agreements 
negotiated pursuant to a provision of the Constitution or to 
prior authority in treaty or law would not come under the 
procedures set forth in S. 3830. In November 1974, the Senate 
passed S. 3830, which was not considered in the House. While 
Senator Ervin's service in the Senate ended in 1974, his 
legislative proposal was reintroduced in 1975, with the 
Separation of Powers Subcommittee holding 4 days of hearings in 
May and July 1975 on S. 632 and S. 1251 (94th Congress). The 
House International Relations Committee (the House Foreign 
Affairs Committee), in 1976, held 6 days of hearings on similar 
legislative proposals (H.R. 4438). No further legislative 
action, beyond the hearings, was taken on any of these 
proposals.\24\
---------------------------------------------------------------------------
    \24\ More extensive discussion of the legislative proposals with 
citations to hearings and reports may be found in the following 
publications: U.S. Congress. House. Committee on International 
Relations. Congress and Foreign Policy--1975. Washington, U.S. 
Government Printing Office, 1976. See pp. 45-48. Congressional 
Oversight of Executive Agreements; U.S. Congress. House. Committee on 
International Relations. Congress and Foreign Policy--1976. Washington, 
U.S. Government Printing Office, 1977. See pp. 11-18. Executive 
Agreements and Treaties.
---------------------------------------------------------------------------

                   intent and content of the case act

     In response to the secret agreements uncovered during the 
Symington Subcommittee hearings, Senator Clifford P. Case in 
December 1970, introduced the legislation that became the Case-
Zablocki Act. Senator Case recalled that an earlier version of 
the legislation had been proposed in 1954, 1955, and 1957 by 
Senators Homer Ferguson and William F. Knowland as an 
alternative to the Bricker amendment. The earlier bills, which 
called for submission of all executive agreements to the Senate 
within 60 days after entry into force, were passed by the 
Senate in the 84th and 85th Congresses but not acted on by the 
House.\25\ Senator Case revised the Ferguson-Knowland bills to 
include the House. He reintroduced the legislation in February 
1971 as S. 596, and it successfully proceeded through the 
legislative process to become Public Law 92-403.\26\ House 
companion bills had been introduced in April 1972 by 
Representatives Clement Zablocki and Charles Whalen.
---------------------------------------------------------------------------
    \25\ In the 83d Congress, S. 3067 was introduced in March 1954 and 
reported to the Senate in August 1954, but not passed by the Senate. In 
the 84th Congress, S. 147 was introduced in January 1955, reported to 
the Senate in July 1956, and passed by the Senate in July 1956. In the 
85th Congress, S. 603 was introduced in January 1957, reported to the 
Senate in June 1957, and passed by the Senate in June 1957.
    \26\ Legislative history of Public Law 92-403 follows: Feb. 4, 
1971: S.596 introduced. Oct. 20 and 21, 1971: Public hearings, Senate 
Foreign Relations Committee. Printed. Dec. 7, 1971: Ordered reported. 
Jan. 19, 1972: Reported to the Senate, S. Rept. 92-591. Feb. 16, 1972: 
Passed Senate, 81-0. Feb. 17, 1972: Referred to House Foreign Affairs 
Committee. June 19, 1972: Public hearings by Subcommittee on National 
Security Policy and Scientific Developments. Printed. Aug. 3, 1972: 
Passed full House committee, ordered reported, and reported to the 
House, H. Rept. 92-1301. Aug. 14, 1972: Passed House. Voice vote. Aug. 
22, 1972: Approved. Public Law 92-403.
---------------------------------------------------------------------------
     The Case Act requires the executive branch to keep 
Congress informed of all international agreements concluded by 
the United States, including those of a sensitive nature. The 
Senate Foreign Relations Committee described the bill as ``an 
effective means of dealing with the prior question of secrecy 
and of asserting the obligation of the executive to report its 
foreign commitments to Congress.'' \27\ The House Foreign 
Affairs Committee described S. 596 as ``a step toward restoring 
a proper working relationship between the Congress and the 
executive branch in the area of foreign affairs. By 
establishing in law a formal procedure for the transmittal to 
Congress of all executive agreements, the bill would eliminate 
one potential source of friction.'' \28\
---------------------------------------------------------------------------
    \27\ U.S. Congress. Senate. Committee on Foreign Relations. 
Transmittal of Executive Agreements to Congress. Report to accompany S. 
596. S. Rept. 92-591, 92d Cong., 2d Sess. Washington, U.S. Government 
Printing Office, 1972, p. 5.
    \28\ U.S. Congress. House. Committee on Foreign Affairs. 
Transmittal of Executive Agreements to Congress. Report to accompany S. 
596. H. Rept. 92-1301, 92d Cong., 2d Sess. Washington, U.S. Government 
Printing Office, 1972, p. 2.
---------------------------------------------------------------------------
     The act was not retroactive and required transmittal only 
of agreements made after the legislation took effect. The 
Senate report noted that the committee expected the executive 
branch to make all such previously enacted agreements available 
to the Congress or its foreign affairs committees at their 
request and in accordance with the procedures defined in the 
bill.
     As originally enacted, the law had two provisions. First, 
it required the Secretary of State to transmit to Congress the 
text of any international agreement other than a treaty as soon 
as practicable but no later than 60 days after it entered into 
force. Second, those agreements which the President determined 
should be classified would be transmitted not to Congress as a 
whole, but to the House Foreign Affairs Committee and the 
Senate Foreign Relations Committee under an injunction of 
secrecy to be removed only upon notice from the President.

                        implementation, 1972-1976

     Passage of the Case Act established the basic obligation 
for the transmittal by the Secretary of State to Congress of 
any international agreement other than a treaty within 60 days 
after its entry into force. Implementation of this obligation 
started immediately and satisfactorily. However, Senator Case, 
concerned over Administration inferences during Senate 
consideration of the legislation that ``certain kinds of 
agreements'' might not be transmitted under the Act, sought a 
clarification of this point from the State Department. In 
response to the committee's request for ``a written statement 
defining executive agreements and listing specifically the 
kinds of agreements that will be submitted and whether there 
are any categories of agreements that the Department believes 
are not covered by the Case Act,'' the State Department's 
Acting Legal Adviser, Charles N. Brower, submitted the 
following:
          The expression ``executive agreement'' is understood 
        by the Department of State to include any international 
        agreement brought into force with respect to the United 
        States without the advice and consent of the Senate 
        under the provisions of clause 2 of Section 2, Article 
        II of the Constitution of the United States. The words 
        ``all international agreements other than treaties to 
        which the United States is a party'' in the act of 
        September 23, 1950 (paragraph 2, 64 Stat. 980; 1 U.S.C. 
        112a) and the words, ``any international agreement, 
        other than a treaty, to which the United States is a 
        party'' in the Case Act (86 Stat. 619; U.S.C. 112b) are 
        considered as including all international agreements 
        covered by the expression ``executive agreement.''
          Accordingly, the Department of State considers the 
        Case Act as covering ``all international agreements 
        other than treaties'' specified in the act of September 
        23, 1950, and required by that act to be published in 
        the new compilation entitled ``Treaties and Other 
        International Agreements of the United States: (UST),'' 
        plus comparable agreements that are classified in the 
        interest of national security and not published in that 
        compilation.\29\
---------------------------------------------------------------------------
    \29\ Case, Clifford P. Cooperation of Department of State under 
Public Law 92-403. Congressional Record, vol. 119, part 16, June 18, 
1973: 1974.

 On the question of the kinds of agreements that would be 
submitted, the Legal Adviser reported that the ``Department 
considers that the Case Act is intended to include every 
international agreement, other than a treaty, brought into 
force with respect to the United States after August 22, 1972, 
regardless of its form, name or designation, or subject 
matter.'' \30\
---------------------------------------------------------------------------
    \30\ Ibid.
---------------------------------------------------------------------------
     Senator Case noted his agreement with the ``State 
Department's interpretation'' and for the record listed the 
following as among the types of agreements the committees would 
regularly receive:
          Intelligence agreements;
          Nuclear basing agreements;
          Presidential executive agreements;
          Intergovernmental agreements between Cabinet or 
        independent agencies in the United States and their 
        foreign counterparts;
          Nuclear technology sharing agreements;
          International trade agreements;
          Military and economic assistance agreements;
          Agreements with foreign intelligence agencies; and
          Contingency agreements with countries with which the 
        United States does not have security commitments by 
        treaty.\31\
---------------------------------------------------------------------------
    \31\ Ibid.

Senator Case added that this list should not be considered all 
inclusive and did not preclude Congress receiving other types 
of agreements.
     Finally, the Department of State also agreed to provide to 
Congress certain material requested by the Chairman of the 
Foreign Relations Committee, Senator William Fulbright, 
concerning classified agreements. Senator Fulbright had 
requested that ``each classified executive agreement 
transmitted to the committee be accompanied by an explanation 
of the agreement, background information on its negotiations, 
and a statement of its effect.'' The Congressional Relations 
office of the Department of State indicated its willingness to 
``provide the information * * * requested,'' concluding ``we 
are initiating immediately the steps necessary to insure that 
classified agreements transmitted * * * under the Act will be 
accompanied by appropriate background information.'' \32\
---------------------------------------------------------------------------
    \32\ Ibid.
---------------------------------------------------------------------------
     Earlier in 1973, the General Accounting Office (GAO) found 
that executive branch agencies had concluded U.S. executive 
agreements and arrangements to provide substantial assistance 
to seven countries that contributed forces to Vietnam without 
notification of these agreements to Congress. In view of the 
Case Act, the GAO recommended that the Secretary of State,
          --Establish procedures to require that all agreements 
        be subject to his approval. This would include those 
        subordinate to or designed to implement basic 
        government-to-government agreements which commit the 
        United States to specific performance requiring 
        expenditure of substantial amounts of money.
          --Require a central repository to be established 
        within the State Department for all such international 
        agreements, arrangements, and commitments, similar to 
        the one now in existence for treaties.
          --Provide annually to the appropriate committees of 
        the Congress a list and description of all such 
        agreements, together with estimates of the future 
        years' costs that each agreement involves.\33\
---------------------------------------------------------------------------
    \33\ U.S. General Accounting Office. U.S. Agreements with and 
Assistance to Free World Forces in Southeast Asia Show Need for 
Improved Reporting to the Congress. Report of the Comptroller General. 
April 24, 1973. Washington, 1973. 5 p. (B-159451) See pp. 1, 4-5. An 
unclassified digest furnished in lieu of a report containing classified 
security information.

 This report highlighted the need to ensure that the State 
Department had copies of all executive agreements concluded 
with other countries by various agencies of the government. In 
response, on September 6, 1973, Acting Secretary of State 
Kenneth Rush sent a letter to all executive branch departments 
and agencies concerning the State Department's obligation under 
the Case Act to transmit all agreements to the Congress. In 
part, the letter read,
         it seems clear that texts should be transmitted to the 
        Department of State of [all subordinate and 
        implementing agreements involving substantial amounts 
        of U.S. funds or other tangible assistance] and of any 
        agreements of political significance, any that involve 
        a substantial grant of funds, any involving loans by 
        the United States or credits payable to the United 
        States, any that constitute a commitment of funds that 
        extends beyond a fiscal year or would be a basis for 
        requesting new appropriations, and any that involve 
        continuing or substantial cooperation in the conduct of 
        a particular program or activity, such as scientific, 
        technical, or other cooperation, including the exchange 
        or receipt of information and its treatment. In 
        general, the instruments transmitted to the Congress 
        pursuant to the Case Act, and those published (other 
        than those classified under E.O. 11652), should reflect 
        the full extent of obligations undertaken by the United 
        States and of rights to which it is entitled pursuant 
        to instruments executed on its half.
          The fact that an agency reports fully on its 
        activities to a given Committee or Committees of 
        Congress, including a discussion of agreements it has 
        entered into, does not exempt the agreements concluded 
        by such agency from transmission to the Congress by the 
        Department of State under the Case Act.\34\
---------------------------------------------------------------------------
    \34\ Rovine, Arthur W. Digest of United States Practice in 
International Law, 1973. Washington, D.C., U.S. Government Printing 
Office, 1974. pp. 187-188. Text may be seen in its entirety in U.S. 
General Accounting Office. U.S. Agreements with the Republic of Korea; 
Departments of State and Defense. Report of the Comptroller General of 
the United States. February 20, 1976. Washington, 1976. See Appendix 
III, pp. 22-24.

     In August 1973, the Department of State initiated plans to 
revise its Circular 175 procedures, issued in the Foreign 
Affairs Manual, an internal instruction for State Department 
personnel. The proposed revision, incorporating changes 
reflecting the Case Act obligations, among other things, was 
published in the Federal Register because of ``the public 
interest in the manner in which treaties and other 
international agreements are entered into by the United 
States.'' \35\
---------------------------------------------------------------------------
    \35\ Treaties and Other International Agreements; Notice of 
Proposed Rulemaking. Federal Register, v. 38, no. 157, August 15, 1973: 
22084f.
---------------------------------------------------------------------------
     Congressional concerns over gaps in the transmittal of 
agreements and lack of clarity over what constituted an 
executive agreement persisted in 1974 and 1975. In April 1975, 
Senator James Abourezk, chairman of the Senate Judiciary 
Committee's Subcommittee on Separation of Powers, asked the 
General Accounting Office to explore whether all agreements 
with Korea had been transmitted under the Case Act and whether 
there were any oral agreements that had not been reduced to 
writing. In February 1976, the GAO responded, identifying 34 
agreements made since 1972 between the United States and South 
Korea which had not been transmitted to Congress by the State 
Department since they had never been sent to the State 
Department, as required by the Rush letter.\36\ In response, 
the Department of State circulated to ALL DIPLOMATIC POSTS an 
airgram dated March 9, 1976, outlining ``Case Act Procedures 
and Department of State Criteria for Deciding What Constitutes 
an International Agreement.'' A copy of the Case Act and the 
Rush letter accompanied the Airgram. A similar letter, under 
the same title, was sent to Key Department Personnel on March 
12, 1976.
---------------------------------------------------------------------------
    \36\ U.S. General Accounting Office. U.S. Agreements with the 
Republic of Korea, Departments of State and Defense. Report of the 
Comptroller General of the United States. February 20, 1976. 
Washington, 1976. (ID-76-20; B-110058)
---------------------------------------------------------------------------
     One of the concerns expressed at the time the Case Act was 
enacted was the quantity of agreements to be transmitted. 
Initial discussions between the State Department's Legal 
Adviser and the Senate Foreign Relations and House Foreign 
Affairs Committees dwelt on assurances that all agreements 
other than treaties would be transmitted. In 1976, the focus of 
attention turned to consultations on agreements that might not 
be transmitted. The proliferation of transmitted agreements was 
especially large for those negotiated by the Agency for 
International Development (AID). According to the Legal 
Adviser, many of the agreements were for relatively small 
amounts of money and AID already reported regularly to Congress 
on its activities and programs. In a letter to Foreign 
Relations Committee Chairman John Sparkman dated May 27, 1976, 
Legal Adviser Monroe Leigh wrote:
          Subject to your concurrence and that of Chairman 
        Morgan of the House Committee on International 
        Relations, it has been agreed that the Department of 
        State will submit to the Congress pursuant to the Case 
        Act any international agreement or amendment thereto 
        entered into by the Agency for International 
        Development with a foreign government or international 
        organization which provides that the United States will 
        contribute at least $1 million in support of the 
        project or projects set forth in the agreement.
          This $1 million limitation will be subject to three 
        exceptions. First, it is understood that all AID 
        agreements with foreign governments or international 
        organizations which have as a principal purpose the 
        establishment of an AID program will be submitted * * 
        *.
          Second, it is agreed that any other AID agreement or 
        amendment that is significant for reasons other than 
        level of funding will be submitted to the Congress 
        pursuant to the Case Act, even if it provides for less 
        than $1 million * * *.
          Finally, it is agreed that any AID agreement with a 
        foreign country or international organization, without 
        regard to dollar amount, entered into pursuant to 
        Section 607 of the Foreign Assistance Act of 1961, as 
        amended, will be submitted pursuant to the Case Act * * 
        *.\37\
---------------------------------------------------------------------------
    \37\ Letter from Monroe Leigh, Legal Adviser, Department of State 
to Senator John J. Sparkman, Chairman, Senate Foreign Relations 
Committee. Dated May 27, 1976. 2 p. Senate Foreign Relations Committee 
files. Section 607 of the Foreign Assistance Act authorizes the 
President to furnish services and commodities on an advance-of-funds or 
reimbursable basis to countries, international organizations, the 
American Red Cross, and voluntary nonprofit relief agencies.

     The amount was subsequently raised from $1 million to $25 
million.

                  amendments of the case act, 1977-1978

     After nearly 5 years' experience with the Case Act, some 
limitations of the original Act became clear. The Case Act was 
amended in both 1977 and 1978 to address these limitations. 
During 1977, Congress modified the Case Act to require that
         Any department or agency of the U.S. Government which 
        enters into any international agreement on behalf of 
        the United States shall transmit to the Department of 
        State the text of such agreement not later than 20 days 
        after such agreement has been signed.\38\
---------------------------------------------------------------------------
    \38\ Section 5, Public Law 95-45, 91 Stat. 244, approved June 15, 
1977. This amendment was recommended by the Senate Foreign Relations 
Committee in its report to the Senate on H.R. 5040, authorizing 
additional appropriations for the Department of State for fiscal year 
1977 (S. Rept. 95-99). It was accepted by the Senate on May 11, 1977, 
and by the House on May 26, 1977.

 The amendment was intended to ensure, by law, that the 
Department of State would receive agreements made by other 
agencies in a timely manner and thus be able to transmit them 
to the Congress within the limits of the Case Act. A 1976 
General Accounting Office report had identified the 
Department's unsuccessful efforts in acquiring the texts of 
agreements concluded by other agencies as a major problem.
    In 1978, Congress further amended the Case Act. A major 
intent of those amendments was to consolidate, within the 
executive branch, the role of the State Department as the 
central coordinator for negotiations with other countries and 
international organizations and to set forth in U.S. statute 
the obligations of the executive branch relative to 
international agreements other than treaties. They were added 
in the Foreign Relations Authorization Act, Fiscal Year 
1979.\39\ The first amendment included ``any oral international 
agreement'' within the coverage of the Act, stipulating that 
oral agreements must be ``reduced to writing.'' The Foreign 
Relations Committee sought to eliminate ``any possible 
incentive for entering into certain agreements orally rather 
than in writing'' and specifically to ``require the 
transmission of intelligence sharing and intelligence liaison 
agreements, many of which are oral.'' \40\
---------------------------------------------------------------------------
    \39\ Section 708, Public Law 95-426, 92 Stat. 993, approved October 
7, 1978.
    \40\ U.S. Congress. Senate. Committee on Foreign Relations. Foreign 
Relations Authorization Act, Fiscal Year 1979. Report on S. 3076. 
Washington, U.S. Government Printing Office, 1978. p. 45. (95th Cong., 
2d Sess. S. Rept. 95-842).
---------------------------------------------------------------------------
     The rest of the amendments aimed at the problem of 
agreements negotiated outside of the State Department although 
they apply equally throughout the government. The second 
amendment required that the President send to Congress annually 
\41\ a report on all agreements which ``during the preceding 
year'' were transmitted to Congress after the 60-day period set 
forth in the Act. This ``late agreements report'' was to 
describe ``fully and completely the reasons for the late 
transmittal.'' The committee believed that a report at the 
presidential level would bring such noncompliance with the Act 
by whatever agency to the President's attention. This report 
has been transmitted in typescript form to the Congress in late 
February or early March annually. In 1985 and 1986, the 
transmittals were in late March and early April, respectively. 
The report covering 1981 was published as a House Document, 
thereby increasing the availability of the information.\42\ 
This was a one-time occurrence.
---------------------------------------------------------------------------
    \41\ The actual language is ``Not later than March 1, 1979, and at 
yearly intervals thereafter.''
    \42\ The citation for the 1981 report is 97th Cong., 2d Sess., 
House Document No. 97-148. 12 p.
---------------------------------------------------------------------------
     The third amendment required that no agreement be signed 
or concluded by any agency in the executive branch without 
prior consultation with the Secretary of State. The purpose of 
this amendment was to ensure that the Secretary of State was 
aware of agreements or classes of agreements being made by 
other agencies of the government and to maintain the 
Secretary's role as coordinator of negotiations between the 
United States and other countries. It also sought to ensure 
that the Congress would be consulted under the State 
Department's Circular 175 procedures as to whether an agreement 
should be an executive agreement or a treaty. The fourth 
amendment specified the Secretary of State as the U.S. 
Government official with the authority within the executive 
branch to determine whether an arrangement with a government 
constitutes an international agreement under the Act.
     The final amendment required the President to develop 
rules and regulations implementing the Case Act and make them 
applicable to all agencies. This was to ensure that the Case 
Act was applied to the agreements made by any U.S. agencies. 
These regulations, ``Coordination and Reporting of 
International Agreements,'' were published in final form in the 
Federal Register on July 13, 1981, and apply to all 
agencies.\43\ They outline the procedures to be followed by all 
agencies in consulting with the Secretary of State before 
concluding an international agreement and the procedures to be 
followed by the State Department in transmitting executive 
agreements to Congress.
---------------------------------------------------------------------------
    \43\ For text, see Appendix 3. U.S. Department of State. Regulation 
108.809. 22 CFR, Part 181. Coordination and Reporting of International 
Agreements. Final Rule. Federal Register, v. 46, no. 133, July 13, 
1981: 35917-35921.
---------------------------------------------------------------------------
     The regulation specifies the following criteria for 
determining whether an agreement constitutes an executive 
agreement that should be reported under the Case Act:
          1. The parties must be states, the domestic agencies 
        of a state, or an international organization and must 
        intend to be legally bound by the agreement;
          2. The agreement must be significant, a determination 
        based, in part, on application of four additional 
        elements, namely, that the agreement: have political 
        significance, involve substantial grants of funds or 
        credits, constitute a substantial commitment of funds 
        extending beyond a fiscal year, and involve continuing 
        and/or substantial cooperation in the conduct of a 
        program or activity;
          3. The agreement must be specific enough in the 
        undertaking required of the parties as to be legally 
        enforceable;
          4. There must be at least two parties;
          5. The agreement normally follows the customary form 
        for international agreements.

 These same criteria apply to agency-level agreements, 
implementing agreements, extensions and modifications of 
agreements, and oral agreements.
     The regulations also set forth the procedures for 
consultation with the Department for a determination of the 
form of the agreement (whether treaty or executive agreement); 
procedures for ensuring that an agreement or class of 
agreements is consistent with U.S. foreign policy objectives; 
adherence to the 20-day rule for concluded agreements; and 
materials required to be transmitted to the Congress.
     According to Department of State officials, the process of 
gathering the background information desired by Congress and 
supplying an official copy of the agreement often takes the 
full 60 days specified by the Case Act.\44\
---------------------------------------------------------------------------
    \44\ Information from Office of Assistant Legal Adviser for Treaty 
Affairs, Department of State, February 1993.
---------------------------------------------------------------------------
     In 1994, Congress amended the publication section of 1 
U.S.C. 112a, authorizing the State Department not to publish 
certain categories of agreements after February 26, 1996. See 
supra, this chapter, first section.

              committee procedures under the case act \45\
---------------------------------------------------------------------------

    \45\ Information in this section was verified in interviews with 
committee staff in January 2001.
---------------------------------------------------------------------------
     Since the passage of the Case Act, the Senate Foreign 
Relations and House International Relations Committees have 
developed procedures for consulting, receiving, and using the 
executive agreements transmitted to Congress under the Case 
Act.\46\ The letter of transmittal to the President of the 
Senate and the Speaker of the House is noted in the 
Congressional Record. The agreements are referred to the Senate 
Foreign Relations Committee and the House International 
Relations Committee. Classified executive agreements are sent 
directly to the two committees.
---------------------------------------------------------------------------
    \46\ After 1994, the House Committee on Foreign Affairs was renamed 
the House Committee on International Relations.
---------------------------------------------------------------------------
 Senate Foreign Relations Committee procedures
     After being transmitted to the President of the Senate, 
the unclassified agreements are informally referred to the 
Parliamentarian for a referral determination and then to the 
``morning clerk'' who gives the transmittal an executive 
communication number. The package of agreements and materials 
is formally referred to the Senate Committee on Foreign 
Relations and cited in the Congressional Record the next day. 
The transmission is listed in the committee calendar, with the 
Executive Communication (EC) number cited. Each agreement is 
also listed, identifying the country and subject, along with 
the EC number, in a Weekly Summary of Committee Activity that 
is circulated to committee members and staff and is a main 
communication tool. The committee's chief counsel reviews each 
agreement for completeness and also serves an alert function 
for members and staff as necessary. The committee information 
system office (1) maintains a data bank that facilitates 
retrieval of the agreements by country, subject matter, or date 
and (2) provides for the microfilming of each unclassified 
agreement. At the end of each Congress, the agreements are sent 
to the committee's official records in the National Archives.
     Classified agreements are sent directly to the committee 
and stored with other classified materials. A chronological 
listing of all classified agreements received is maintained and 
appropriate committee staff are notified of their receipt for 
possible consultation with Members. The Weekly Summary of 
Committee Activities also includes a notification that 
classified agreements have been received; information on the 
country and subject matter is not included in this listing. The 
chief counsel also reviews each classified agreement for 
completeness of transmission and the necessity for briefings 
for Members and staff. The classified agreements are not 
microfilmed but are kept in the committee's custody for a 
longer period of time.
 House International Relations Committee procedures
     In the House International Relations Committee, all 
unclassified executive agreements transmitted to the Speaker 
and referred to the committee are listed separately in the 
committee calendar by country, with the subject of the 
agreements and its executive communication number. Appropriate 
staff are notified of the receipt of specific agreements, the 
texts of which are maintained in committee files for a single 
Congress. Thereafter, the agreements are sent to the 
committee's records at the National Archives.
     Classified agreements are received directly by the 
committee. A brief notice of their receipt is included in the 
committee's Survey of Activities which is circulated weekly to 
all committee staff and members. A memorandum of notification 
that such agreements have been received is sent to appropriate 
committee staff. Classified executive agreements are recorded 
in a log with other executive branch reports and are 
retrievable through the log. Classified agreements can be sent 
to the committee's records at the National Archives at the end 
of each Congress.

                  impact and assessment of the case act

     The Case Act has been helpful in apprising Congress of 
executive agreements as defined by the Act. Staff members of 
both the Foreign Relations and the International Relations 
Committees indicate their satisfaction that all agreements the 
State Department knows of are transmitted, although 
notifications to the ``Treaty Office'' in the State Department 
of agreements signed may still be unpredictable (see below on 
late agreements). Implementation of the Case Act has 
contributed to improved relations between Congress and the 
executive branch in the area of executive agreements. In 
addition, the Case Act has helped the Department of State gain 
control of the agreements negotiated by other agencies.
     Problems still remain with ensuring that Congress is 
informed and consulted on all binding international agreements. 
Some problems are due to difficulties in Congress in handling 
the executive transmittals. Others are based on the continuing 
lack of clear and agreed definitions of executive agreements.
 Number of agreements transmitted
     The language of the Case Act is general enough to 
encompass a great variety and number of executive agreements. 
In an effort to comply with the act, the Department of State 
initially interpreted it broadly and sent to the Congress a 
large number of agreements. The first and immediate impact of 
the Act, particularly as more agreements negotiated by other 
executive branch agencies were sent to the State Department's 
treaty office, was a dramatic increase in the number of 
executive agreements reported as concluded on behalf of the 
United States. See Table II-2, in Chapter II, especially the 
figures for 1976-1978.\47\ This phenomenon brought to both the 
committees and the State Department the problems of processing 
such a large number of agreements. Consultations among all 
involved resulted in a decision that certain agreements made by 
the Agency for International Development would not be 
transmitted (see discussion above).
---------------------------------------------------------------------------
    \47\ For comprehensive data on the conclusion of treaties and 
executive agreements, see Chapter II above.
---------------------------------------------------------------------------
     An associated problem for the State Department was 
ensuring that the agreements were published in a timely manner 
as part of its TIAS series. Financial and personnel shortages 
have delayed the publishing of the TIAS, and also of UST, by 
the Department of State by at least 10 years.
     The numbers of agreements transmitted remained high, at 
least through 1990. The calendar year 1991 and 1992 figures of 
280 and 296, respectively, probably reflect the 1990 
redefinition and exclusion of 60 to 80 Public Law 480, Title I 
agreements concluded annually (see below, under Insufficient 
Transmittal of Agreements to Congress). During the rest of the 
1990s, the number of agreements gradually fell until in 1998 
and 1999, fewer than 200 agreements were transmitted annually. 
See Table X-1.

 Table X-1.--Transmittal of Executive Agreements to Congress, 1978-1999
------------------------------------------------------------------------
                         Total Late    Late Agreements, Agency of Origin
                     ---------------------------------------------------
  Year      Total                            State        Other Agencies
Covered  Transmitted                  ----------------------------------
                      Number  Percent              From
                                       Total \1\  Posts       Total
------------------------------------------------------------------------
1978          520        132    25.4   45            ?   87 (includes 3
                                        (include          classified)
                                        s 1
                                        classifi
                                        ed)
1979          355         46      13   19            7   27 (includes 2
                                        (include          classified:
                                        s 1               DOD)
                                        classifi
                                        ed)
1980          320         43    13.4   24            9   19 (includes 1
                                        (include          classified:
                                        s 2               DOD)
                                        classifi
                                        ed)
1981          368         99      27   69           19   30 (includes 1
                                        (include          classified:
                                        s 2               DOD)
                                        classifi
                                        ed)
1982          372         84      23   44           13   40 (includes 6
                                        (include          classified:
                                        s 1               DOD, 5;
                                        classifi          Treasury, 1)
                                        ed)
1983          335         71    21.2   39           21   32 (includes 0
                                        (include          classified)
                                        s 1
                                        classifi
                                        ed)
1984          369         69    18.7   45           27   24 (includes 5
                                        (include          classified:
                                        s 5               DOD, 1; USAF,
                                        classifi          2; Treasury,
                                        ed)               2)
1985          343         88    25.7   39           25   49 (includes 8
                                        (include          classified:
                                        s 2               DIA, 3; NRC,
                                        classifi          2; DOD, 1;
                                        ed)               USN, 2)
1986          383         65      17   32           25   33 (includes 3
                                        (include          classified:
                                        s 1               DIA, 1; DOD,
                                        classifi          1; Treasury,
                                        ed)               1)
1987          396         57    14.4   35           26   22 (includes 2
                                        (include          classified) \2
                                        s 2               \
                                        classifi
                                        ed)
1988          412         79    19.2   39           26   40 (includes 7
                                        (include          classified) \2
                                        s 2               \
                                        classifi
                                        ed)
1989          344         55      16   38           22   17 (includes 4
                                        (include          classified) \2
                                        s 2               \
                                        classifi
                                        ed)
1990          364         51      14   23           18   28 (includes 10
                                        (include          classified) \2
                                        s 1               \
                                        classifi
                                        ed)
1991          280         30      11   18            8   12 (includes 1
                                        (include          classified) \2
                                        s 0               \
                                        classifi
                                        ed)
1992          296         56    18.9   38           19   18 (includes 8
                                        (include          classified) \2
                                        s 0               \
                                        classifi
                                        ed)
1993          243         45    18.5   26           12   19 (includes 10
                                        (include          classified) \2
                                        s 0               \
                                        classifi
                                        ed)
1994          313         27     8.6   15           10   12 (includes 0
                                        (include          classified)
                                        s 1
                                        classifi
                                        ed)
1995          276         29    10.5   11            8   18 (includes 6
                                        (include          classified:
                                        s 0               Treasury, 5;
                                        classifi          DIA, 1)
                                        ed)
1996          225         41      18   28           11   13 (includes 5
                                        (include          classified:
                                        s 3               DIA, 3; Navy,
                                        classifi          2)
                                        ed)
1997          212         29    13.6   18            7   11 (includes 1
                                        (include          classified:
                                        s 0               DIA)
                                        classifi
                                        ed)
1998          199         18       9   12            4   6 (includes 0
                                        (include          classified)
                                        s 0
                                        classifi
                                        ed)
1999          166         31    18.6   18            9   13 (includes 4
                                        (include          classified) \2
                                        s 3               \
                                        classifi
                                        ed)
        ----------------------------------------------------------------
1993-        1634        220    13.5   128          61   92
1999
Subtota
 ls
        ----------------------------------------------------------------
Totals-      7091       1245    17.5   675         326   570 (45.8% of
 -                                      (54.2%            total late)
all                                     of total
 years                                  late)
------------------------------------------------------------------------
\1\ Total includes those which are classified and/or late from posts.
\2\ Agencies not identified.


     One tool for determining when transmitted agreements are 
significantly more important than others is the background 
statement required to accompany the texts of each agreement. 
While the Case Act did not require such a statement, 
correspondence between the Senate Foreign Relations Committee 
and the State Department included the requirement for a 
background statement for each classified agreement.\48\ The 
regulation implementing the Act stipulates that each agreement, 
classified or unclassified, be accompanied by a background 
statement including ``information explaining the agreement, the 
negotiations, the effect of the agreement, and a precise 
citation of legal authority.'' \49\ These statements can be 
useful in setting a context for committee staff and members.
---------------------------------------------------------------------------
    \48\ See above, under Implementation, 1972-1976.
    \49\ 22 CFR 181.7, see Appendix, infra.
---------------------------------------------------------------------------
 Late transmittal of Case Act agreements
     The number of agreements which were not transmitted to 
Congress within the 60-day time limit is still a source of 
concern although the numbers are notably lower in recent years 
than in earlier periods. Referring to Table X-1, between 1978 
and 1985, the percent of late transmittals to total agreements 
transmitted was often between 20 and 25 percent. Between 1985 
and 1992, the percent of late to total transmittals dropped 
below 20 percent, falling to 11 percent in 1991 and 18.9 
percent in 1992. Between 1993 and 1999, the percent of late to 
total transmittals fell to 13.5 percent. Some agreements are 
still transmitted months or even a year or two late. In some 
cases, it is only when an agreement is amended that the 
original comes to light.
     Table X-1 also shows that during the period 1978-1992, 547 
agreements transmitted after the 60-day date, or 53.4 percent, 
originated from the State Department, including 265 agreements 
arriving late from overseas posts into the Department. During 
the same period, 478 agreements, or 46.7 percent of the total 
agreements transmitted late, were transmitted late to the State 
Department from other executive branch agencies. In comparison, 
for the period 1993-1999, 128 or 58.2 percent of the 220 
agreements transmitted late originated within the Department of 
State, including 61 from overseas posts, while 92 agreements or 
41.8 percent of all late transmittals, originated from other 
agencies of the U.S. Government.
     Table X-2 shows that over the 14-year period, from 1979 
through 1992, a total of 29 agencies, other than the State 
Department, at one time or another, submitted at least one 
executive agreement to the State Department in such fashion 
that the State Department could not transmit the agreement to 
the Congress within the required 60 days after entry into 
force.\50\ This does not include classified agreements, about 
which information on the agency of origin was absent in the 
reports covering 1987 through 1993 and for 1999. In this 
initial 14-year period, the top four late reporting agencies 
were the Federal Aviation Administration (FAA), the Agency for 
International Development (AID), the Nuclear Regulatory 
Commission (NRC), and the Department of Defense (DOD), followed 
by the U.S. Trade Representative (USTR). Practice over the 7 
years since 1992 has improved, with 22 agencies (eight of them 
new to the list) reported as submitting a total of 92 
agreements late. The FAA, DOD, and NRC have been joined by the 
U.S. Geological Survey. The USTR and AID have probably fared 
better because of arrangements that eliminated many of the 
classes of agreements initially required for submittal.
---------------------------------------------------------------------------
    \50\ The report for 1978, the initial report, did not include an 
agency breakdown on the 87 unclassified agreements received late from 
other agencies.

       Table X-2.--Agencies Submitting Agreements Late, 1979-1999
------------------------------------------------------------------------
                                                    Number of  Number of
                  Name of Agency                   Agreements    Years
------------------------------------------------------------------------
Federal Aviation Administration..................          23         15
Department of Defense............................          34         15
Nuclear Regulatory Commission....................          59         13
U.S. Geological Survey...........................          19         13
U.S. Trade Representative........................          47         12
Agency for International Development.............          42         12
Department of Energy.............................          21         10
Department of the Navy...........................          22          8
Department of Agriculture \1\....................          13          7
Department of the Air Force......................           8          7
U.S. Postal Service \1\..........................          12          6
National Science Foundation......................          11          5
National Aeronautics and Space Administration....          14          5
Peace Corps......................................           5          5
Department of the Interior \1\...................           4          4
Defense Mapping Agency \1\.......................           5          4
Department of Justice \1\........................           5          4
U.S. Information Agency..........................           8          4
Department of the Treasury.......................          13          4
Overseas Private Investment Corporation..........           7          4
Defense Intelligence Agency......................           5          4
Food and Drug Administration \1\.................           4          3
Department of Transportation \1\.................           5          3
Department of the Army...........................           3          3
Department of Commerce \1\.......................           2          2
Defense Security Assistance Agency...............           2          2
U.S. Customs Service.............................           3          2
Department of Health and Human Services \1\......           2          1
General Services Administration \1\..............           1          1
National Bureau of Standards (NIST) \1\..........           1          1
National Oceanographic and Atmospheric                      1          1
 Administration \1\..............................
U.S. Coast Guard \1\.............................           1          1
Department of Labor \1\..........................           1          1
Bureau of Mines..................................           1          1
Advanced Research Projects Agency................           1          1
National Institutes of Health....................           1          1
International Boundary Waters Commission.........           1          1
                                                  ------------
    Totals: 37 Agencies..........................        423
------------------------------------------------------------------------
\1\ Indicates agency has not been included in the late transmittal
  report after 1992.


     The State Department uses the occasion of the late 
agreements report to remind executive branch agencies and 
Department offices and overseas posts of their responsibilities 
to submit to the Treaty Office the texts of any agreements it 
concludes within 20 days after signature. Copies of the 
regulation and/or Circular 175 are forwarded to each office.
     Generally, the ``late agreements'' report does not provide 
a very detailed explanation for the lateness of transmittal. 
Instead, it lists the agreements by origin: agreements received 
in the Department of State from other agencies (the agency is 
identified for each agreement); agreements received late from 
the action office in the Department of State; agreements 
received late from posts abroad; agreements transmitted late 
due to internal procedures; and agreements, as appropriate, 
received late from the depositary government or organization. 
The earlier reports, for 1978-1981, often included a little 
more detail in an annotation for those agreements originating 
in the State Department. The legislative requirement for the 
late agreements report anticipated that the report would 
describe ``fully and completely the reasons for the late 
transmittal.''
     Similarly, the background statements transmitted along 
with the agreements do not include any explanation of the 
lateness of the agreement. Another mechanism that might prove 
useful in obtaining information on the reasons for late 
transmittal, irrespective of the agency of origin, might be a 
consultation involving the two committees, the State 
Department, and an appropriate White House official. In this 
way, some of the possible difficulties in meeting the deadlines 
for transmittal might be discussed, with some equitable 
resolution achieved.
 Insufficient transmittal of agreements to Congress
     One category of agreement that may contribute to confused 
expectations over what will be transmitted is so-called ``gray 
area'' agreements. These agreements, concluded in a non-binding 
form or determined by the executive branch to be legally non-
binding on the United States, are not referred to Congress 
under the Case Act procedures although the executive branch may 
voluntarily provide information about them to Congress. Non-
binding international agreements have been used in several 
important areas in recent years.\51\ They are viewed as 
involving political or moral obligations but not legal 
obligations. A prominent example is the 1975 Final Act of the 
Conference on Security and Cooperation in Europe (CSCE), better 
known as the Helsinki Agreement.
---------------------------------------------------------------------------
    \51\ See discussion of nonbinding agreements and functional 
equivalents in Chapter III above.
---------------------------------------------------------------------------
     Another example is the 1978 Bonn Declaration on 
International Terrorism, which did not take the form of an 
international agreement but was supported by assurances from 
the governments involved that they would take steps to carry it 
out. This Declaration was followed during successive years with 
additional statements or declarations by the heads of state and 
government of the Economic Summit countries. For example, the 
1986 Tokyo Economic Summit Conference Statement on 
International Terrorism, May 5, 1986, listed six measures the 
Summit leaders were prepared to apply in response to any state 
supporting terrorism.\52\ Later statements endorsed the Bonn 
Declaration and Tokyo Statement and referred generally to the 
cooperative efforts under way by the Summit countries. 
Illustrative of the coordination and cooperation that developed 
under this framework were the actions by many West European 
countries to expel diplomats and staff of Iraqi Embassies and 
other Iraqi offices and other potential saboteurs and 
terrorists during the Persian Gulf war.\53\ The collaboration 
initiated in response to the Bonn and Tokyo documents might be 
said to have contributed to the success in preventing massive 
and significant acts of terrorism in coalition countries.
---------------------------------------------------------------------------
    \52\ U.S. Congress. House. Committee on Foreign Affairs. 
International Terrorism: A Compilation of Major Laws, Treaties, 
Agreements, and Executive Documents. Report Prepared by the 
Congressional Research Service, Library of Congress, July 1991. 
Washington, U.S. Government Printing Office, 1991. (102d Cong., 1st 
Sess., Committee Print) Carries the texts of the Economic Summit 
statements and declarations on international terrorism, 1978-1990, pp. 
290-301. A July 2000 update of this compilation by the same title for 
the House. Committee on International Relations, carries Economic 
Summit texts starting in 1986.
    \53\ U.S. Department of State. Office of the Coordinator for 
Counterterrorism. Patterns of Global Terrorism: 1991. Washington, 1992. 
pp. 7-11, 14-15.
---------------------------------------------------------------------------
     Another subject area where nonbinding agreements or 
arrangements play a significant role is multilateral 
nonproliferation regimes.\54\ In these instances, a number of 
supplier nations have decided to meet on a more or less regular 
basis to draft and approve guidelines under which the 
participating nations will limit or restrict their export of 
agreed upon materials. No formal and publicly accessible 
documentation appears to be available, either on the 
establishment of these arrangements or on the actions or 
decisions taken at the meetings. The whole activity is 
voluntary and any agreements concluded are viewed as political 
in nature rather than having legal standing.\55\ The 
participating countries, however, often behave as though a real 
commitment exists. Since the Case Act requires that all 
agreements other than treaties be transmitted and that oral 
agreements be put into writing, and establishes a procedure for 
the transmittal of classified agreements, and in the light of 
increased multilateral activity in these areas in the post-Cold 
War era, some believe these kinds of arrangements could 
represent a large loophole.
---------------------------------------------------------------------------
    \54\ The information on this subject area is taken from U.S. 
Congress. House. Committee on Foreign Affairs. Nonproliferation 
Regimes: Policies to Control the Spread of Nuclear, Chemical, and 
Biological Weapons and Missiles. Committee Print, 103d Cong., 1st 
Sess., March 1993. Washington, U.S. Government Printing Office, 1993. 
Hereafter cited as Davis, Nonproliferation. See also Department of 
State Web site, http://www.state.gov, under Arms Control, 
Nonproliferation.
    \55\ In the nuclear supplier area, two arrangements exist. The 
first, the Nuclear Exporters Committee (known as the Zangger 
Committee), was formed in the early 1970s by seven nations to 
``reinforce and assist in the implementation of the restrictions on 
nuclear trade included in Article III of the NPT'' (the 1970 Treaty on 
the Nonproliferation of Nuclear Weapons). The Zangger Committee, in 
1974, drew up a ``list of nuclear export items that could be 
potentially useful for military applications of nuclear technology. The 
nuclear suppliers agreed that the transfer of items on the list would 
`trigger' application of IAEA safeguards to assure that the items were 
not used for the development of nuclear explosives.'' (Davis, 
Nonproliferation, pp. 20-21) The Zangger Committee meets twice a year. 
The second arrangement is the Nuclear Suppliers Group (the London 
Group), that met for the first time in 1975 to develop a set of nuclear 
export guidelines. In 1978, the group ``announced a common policy 
regarding nuclear exports,'' including some ``dual-use'' items on its 
list. The 1992 meeting of the NSG agreed on new guidelines and sought 
to coordinate its list with the Zangger Committee list. (Davis, 
Nonproliferation, pp. 20-21, 52) Another arrangement, the Australian 
Group, developed in 1984 in response to an Australian initiative, under 
which member nations of the Organization for Economic Cooperation and 
Development (OECD) ``joined together to establish voluntary export 
controls on certain chemicals.'' This is ``an informal organization 
open to any nation seeking to stem CW [chemical weapons] 
proliferation'' and has 20 members. (Davis, Nonproliferation, pp. 35-
36, 54) A final arrangement, the Missile Technology Control Regime 
(MTCR), was set up among the seven Economic Summit nations in April 
1987 to ``limit the proliferation of missiles capable of delivering 
nuclear weapons.'' Twenty-two nations are now ``partners'' in the MTCR. 
(Davis, Nonproliferation, pp. 45-46, 49-51)
---------------------------------------------------------------------------
     Another group of agreements that are not transmitted under 
the Case Act are those the State Department views as contracts; 
they are usually commercial in nature, involving sales or 
loans. In 1990, a class of agreements previously transmitted 
under the Case Act was removed from the definition of 
agreements as a result of a State Department interpretation of 
language in the 1990 congressional reform of the Agricultural 
Trade Development and Assistance Act of 1954, Title I of Public 
Law 480.\56\ The reinterpretation was based on language changes 
in the 1990 farm act that authorized the Secretary of 
Agriculture rather than the President to ``negotiate and 
execute agreements * * * to finance the sale and exportation of 
agricultural commodities * * *.'' \57\ As a result of this and 
other changes affecting Public Law 480, Title I, the agreements 
concluded under this section were interpreted as contracts, 
rather than as agreements. This represented an average of 60 to 
80 agreements formerly transmitted under the Act annually and 
lowered the number of agreements transmitted in 1991 (see Table 
X-1 above).\58\ The thrust of the Case Act, however, was to 
ensure that the Congress was aware of potentially significant 
commitments made by executive agreement. Fiscal year 1991 
values for Public Law 480, Title I agreements concluded by the 
U.S. Department of Agriculture ranged from $2 million to the 
Congo to $165 million to Egypt. Any new trend increasing the 
value of agreements made or increasing the number of agreements 
signed with any one country might signal a qualitative change 
in U.S. policy direction toward a country or bring into 
question the potential for misuse of the credits provided. The 
two committees may decide to initiate consultations on a formal 
State Department interpretation and a change in procedures that 
would ensure that the Secretary of Agriculture would submit to 
the Department for Case Act transmittal Public Law 480, Title I 
agreements under certain specified circumstances.\59\
---------------------------------------------------------------------------
    \56\ See section 1512 of Public Law 101-624, Food, Agriculture, 
Conservation, and Trade Act of 1990, approved November 28, 1990; often 
referred to as ``the 1990 farm act.''
    \57\ 7 U.S.C. 1701 (b)
    \58\ This information is based on discussions with the Office of 
Assistant Legal Adviser for Treaty Affairs and with CRS specialists 
covering Public Law 480 aid.
    \59\ See discussion of AID agreements above under Implementation, 
1972-1976.
---------------------------------------------------------------------------
 Pre-Case Act executive agreements
     During consideration of the Case Act in 1972 the Senate 
report clearly outlined the Senate Foreign Relations Committee 
intent that although the Case Act did not include past 
executive agreements, they were also to be provided if 
requested in the same manner as Case Act agreements.\60\ The 
only instance remembered by International Relations and Foreign 
Relations committee staff in which a Member of Congress had 
asked for pre-Case Act agreements was Senator Jesse Helms' 
request for the texts of all exchanges between the United 
States and the Soviet Union during the 1962 Cuban Missile 
Crisis. While some written exchanges were declassified and 
published in 1972, Senator Helms maintained that oral 
agreements made at the time and in the years since have changed 
the original understandings and that these have not been made 
available to the committee.\61\
---------------------------------------------------------------------------
    \60\ U.S. Congress. Senate. Committee on Foreign Relations. 
Transmittal of Executive Agreements to Congress. Report to accompany S. 
596. Washington, U.S. Government Printing Office, 1972, p. 4 (92d 
Cong., 2d Sess. S. Rept. 92-591.)
    \61\ Helms, Jesse. The Kennedy-Khrushchev Accords--Do They Exist? 
Congressional Record, vol. 129, part 20, October 20, 1983: 28791.
---------------------------------------------------------------------------
     The State Department has denied the existence of an 
agreement between the United States and the Soviet Union about 
Cuba, and no such agreement is listed in the State Department's 
annual U.S. Treaties in Force. The letters between the two 
countries are described as an understanding by each country of 
the intentions of the other country toward Cuba, but not an 
agreement on conduct of either.\62\ Since 1962, U.S. and Soviet 
representatives met several times and agreed that they would 
abide by the intentions expressed in the 1962 letters, but the 
two countries were not agreed on what behavior constituted 
abiding by the letters. In January 1992, the State Department 
declassified and released an additional 12 letters from the 
October through December 1962 period.\63\ These additional 
letters were not transmitted to Senator Helms since they were 
not viewed as agreements under international law.
---------------------------------------------------------------------------
    \62\ Telephone conversation with Department of State, Office of the 
Legal Adviser, Dec. 12, 1983. Updated by phone conversation with the 
Office of the Assistant Legal Adviser for Treaty Affairs, March 4, 
1993.
    \63\ Department Releases Kennedy-Khrushchev Correspondence on Cuban 
Missile Crisis. Statement, January 6, 1992. U.S. Department of State 
Dispatch, January 13, 1992: 29. The full exchange of correspondence was 
published in Problems of Communism, Special Edition, v. 41, Spring 1992 
(A bimonthly publication of the United States Information Agency.)
---------------------------------------------------------------------------

                  B. Consultations on Form of Agreement

     A second major problem for Congress has been to ensure 
that the most important international agreements have the 
status of treaties or are authorized by the entire Congress. 
The Senate particularly was concerned that the executive branch 
may use executive agreements as a substitute for treaties to 
avoid submitting them to the Senate for advice and consent. The 
Foreign Relations Committee in 1976 and 1978 considered a 
measure, referred to as the Treaty Powers Act, by which the 
Senate, through passage of a simple (one-House) resolution 
requiring the submission of a particular international 
agreement as a treaty, could prevent funding to execute that 
agreement until it was submitted as a treaty. In lieu of this 
measure, the Senate passed S. Res. 536 on September 8, 1978, 
stating the sense of the Senate that,
         in determining whether a particular international 
        agreement should be submitted as a treaty, the 
        President should have the timely advice of the 
        Committee on Foreign Relations through agreed 
        procedures established with the Secretary of State.

 This resolution formalized a procedure which was negotiated by 
the committee with the State Department earlier that year.
     Under these procedures the House International Relations 
and Senate Foreign Relations Committees would receive a 
periodic list of significant international agreements which 
have been cleared for negotiation, a citation of the legal 
authority for the agreement, and the expected form the 
agreement would take (treaty or executive agreement). Each 
committee would then have the opportunity of consulting with 
the administration over the proposed form of the agreement. 
Under the negotiated agreement, the State Department wrote to 
then Chairman of the Senate Foreign Relations Committee John 
Sparkman:
          If agreeable to you, we propose to send you 
        periodically a confidential list of significant 
        international agreements which have been authorized for 
        negotiation pursuant to the Circular 175 procedure. The 
        list would briefly discuss the subject matter of the 
        agreements listed and indicate their anticipated 
        form.\64\
---------------------------------------------------------------------------
    \64\ U.S. Congress. Senate. Committee on Foreign Relations. 
International Agreements Consultation Resolution. Report to Accompany 
S. Res. 536. Washington, U.S. Government Printing Office, 1978, pp. 2-
3. (S. Rept. 95-1171, 95th Cong., 2d Sess.)

 In his reply, Senator Sparkman indicated that he hoped the 
consultation would take place concerning agreements negotiated 
by the Department of State as well as those negotiated by other 
departments and agencies.\65\
---------------------------------------------------------------------------
    \65\ Ibid.
---------------------------------------------------------------------------
     In current practice, the list of agreements is selective, 
chosen by the administration based on its perception of the 
interests of Congress. In making the selection, the State 
Department takes into account the agreement's importance to 
Congress in the view of the agency negotiating the agreement, 
the significance of the agreement, and the political importance 
of the country. In addition, on occasion the Treaty Office has 
consulted informally with International Relations or Foreign 
Relations Committee staff on the appropriate form of an 
agreement. In these instances, a formal record, such as a 
memorandum of conversation, may not exist. In the committees, 
the formal negotiations lists are circulated and filed in a 
manner similar to the classified agreements submitted under the 
Case Act.
     The Department of State or another agency may consult with 
other Members or congressional committees on the substance of 
an agreement either before or after sending the confidential 
list letter. Prior consultation on the substance of an 
agreement is not used as a basis for excluding the agreement 
from the negotiations list sent to the Foreign Relations and 
International Relations Committees.
     Another requirement under which Congress is to be 
consulted over the form that an agreement might take, although 
this does not substitute for the formal procedure described 
above, is contained in Circular 175 procedures (Section 721.4). 
These are the Department's internal procedures for negotiating 
and signing treaties and executive agreements, contained in 
Chapter 700, volume 11 of the Department of State's Foreign 
Affairs Manual, most recently revised in 1985.\66\ Among its 
objectives, the 1985 revision included ``timely and appropriate 
consultation'' with Congress on treaties and other 
international agreements, and compliance with the Case Act.
---------------------------------------------------------------------------
    \66\ These guidelines are generally referred to as the Circular 175 
procedures of December 13, 1955. The text can be found in Appendix 4.
---------------------------------------------------------------------------
     Circular 175 states that a request for authorization to 
negotiate and/or sign a treaty or other international agreement 
should take the form of a written ``action memorandum.'' This 
memorandum may request (1) authority to negotiate, (2) 
authority to sign, or (3) authority to negotiate and sign an 
international agreement. It should indicate what arrangements 
for congressional consultation and public comment have been 
planned. The action memorandum should be accompanied by any 
texts to be negotiated or signed, and a memorandum of law 
discussing thoroughly the bases for the type of agreement 
recommended. This justification should include consideration of 
the following eight factors:
           1. The extent to which the agreement involves 
        commitments or risks affecting the nation as a whole;
          2. Whether the agreement is intended to affect State 
        laws;
          3. Whether the agreement can be given effect without 
        the enactment of subsequent legislation by the 
        Congress;
          4. Past U.S. practice as to similar agreements;
          5. The preference of Congress as to a particular type 
        of agreement;
          6. The degree of formality desired for an agreement;
          7. The proposed duration of the agreement, the need 
        for prompt conclusion of an agreement, and the 
        desirability of concluding a routine or short-term 
        agreement; and
          8. The general international practice as to similar 
        agreements.

     When there is a question whether an international 
agreement should be concluded as a treaty or executive 
agreement, Circular 175 calls for consultation with 
congressional leaders and committees as may be appropriate. In 
addition, Section 723.1e states that the office or official 
responsible for the negotiation should, with the assistance of 
the Assistant Secretary of State for Congressional Relations, 
advise the appropriate congressional committees and leaders of 
the intention to negotiate significant new international 
agreements, consult them concerning the agreements, and keep 
them informed of negotiating developments affecting Congress, 
especially the need for implementing legislation. Where any 
especially important treaty or international agreement is 
contemplated, the Office of the Assistant Secretary for 
Congressional Relations is to be informed as early as possible 
by the office responsible for the subject.
     Circular 175, however, does not refer in any way to the 
negotiated procedure under which the two foreign affairs 
committees are to be consulted over the appropriate form for 
proposed agreements.

            C. Congressional Review or Approval of Agreements

     Congress has sometimes established an oversight role by 
requiring in legislation that certain categories of agreements 
be transmitted to it. Table X-3 describes the statutory 
provisions of this nature. This list is not comprehensive, but 
represents the main provisions in the U.S. Code requiring 
agreements to be sent to the Congress.\67\
---------------------------------------------------------------------------
    \67\ A search of the computerized U.S. Code to identify laws with 
some combination of ``international agreement,'' ``submit,'' 
``transmit'' and ``report'' within 25 words of ``Congress'' resulted in 
2,085 citations. Raymond J. Celada, Senior Specialist in American 
Public Law, CRS, reviewed the texts of those citations, and identified 
20 that were relevant. This author further reviewed the texts of 19 of 
those 20 (one was the Case Act, discussed in the first part of this 
chapter) in the U.S. Code Annotated (USCA) and its 1992 pocket parts, 
narrowing the provisions to ten. A review of the most recent USCA and 
its 2000 pocket parts for the ten provisions in Table X-3 resulted in 
few substantive changes.

                                      Table X-3.--Statutory Requirements for Transmittal of Agreements to Congress
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      Transmittal Before   Approval Required                           Specified       Are Congressional
   Title of Act and Public Law        Subject of        or After Entry      for Entry into        Disapproval        Recipients of      Procedures Set
        Citation [U.S.C.]              Agreement          into Force?         Force? How?      Provisions? How?       Agreements            Forth?
--------------------------------------------------------------------------------------------------------------------------------------------------------
Atomic Energy Act of 1954, as     Nuclear             Before; 30-day      Yes; Joint          Yes; Joint          SFRC, HFAC \1\....  Yes, general
 amended (P.L. 83-703); Sections   Cooperation         waiting period.     Resolution.         Resolution.                             provisions
 123 & 130 (g),(h) & (i) [42       Agreements.
 U.S.C. 2153 & 2159 (g), (h), &
 (i)].
Atomic Energy Act of 1954, as     Nuclear             Before; 60-day      Yes; Joint          Yes; Joint          SFRC, HFAC, HASC,   Yes, general
 amended (P.L. 83-703); Sections   Cooperation         waiting period.     Resolution.         Resolution.         SASC.               provisions
 91c, 144 b or c; and Sections     Agreements
 123 & 130 (g), (h), & (i) [42     relating to
 U.S.C. 2153 & 2159 (g), (h) &     defense materials
 (i)].                             or military uses.
Fishery Conservation and          International       Before; 60-day      No; will enter      Yes; Joint          House & Senate;     Yes, detailed
 Management Act of 1976, as        Fisheries           waiting period.     into force if No    Resolution.         HMM&F, SFRC, S      provisions
 amended (P.L. 94-265) Section     Agreements                              action within 60                        Commerce.
 203 [16 U.S.C. 1823].             (GIFAs).                                days.\2\.
Taiwan Relations Act (P.L. 96-    Agreements made by  After.............  No................  No................  Congress..........  No
 8), Section 12 [22 U.S.C. 3311].  the American
                                   Institute in
                                   Taiwan.
Social Security Amendments of     Social security     Before; 60-day      No; will enter      Yes; resolution of  Congress..........  No
 1977 (P.L. 95-216), Section 317   agreements          waiting period.     into force if No    either house.
 [42 U.S.C. 433].                  between U.S. and                        action within 60
                                   foreign social                          days.
                                   security systems.
International Development and     International       Before............  No................  No................  SFRC, HFAC, H & S   No
 Food Assistance Act of 1978, as   agreements                                                                      Appropriations.
 amended (P.L. 95-424), Section    concerning debt
 603 (a)(2) [22 U.S.C. 2395a       relief 30 days.
 (2)].
Enterprise for the Americas       Any agreement with  30 days before....  No................  No................  HFAC, SFRC, H & S   No
 Initiative Act of 1992 (P.L.      any foreign                                                                     Agriculture.
 102-532), Section 2 [7 U.S.C.     government
 1738q].                           resulting in any
                                   debt relief under
                                   Title VI of the
                                   Agricultural
                                   Trade Development
                                   & Assistance Act
                                   of 1954, as
                                   amended.
Trade Act of 1974, as amended     Agreements on       Before; Section     Yes; Joint          No................  Congress..........  Yes
 (P.L. 93-618), Section 405 [19    trade relations     151 process.        Resolution.
 U.S.C. 2435].                     with nonmarket-
                                   economy countries.
OTCA of 1988, as amended \3\      Agreements on       Before; Section     Yes; Joint          No................  House; Senate.....  Yes; detailed
 (P.L. 100-418), Sections 1102     elimination of      151 process.        Resolution.                                                 process
 (b) & 1103 (a) and Trade Act of   non-tariff
 1974, as amended (P.L. 93-618),   barriers.
 Section 151 [19 U.S.C. 2191].
OTCA of 1988, as amended (P.L.    Bilateral           Before; Section     Yes; Joint          No................  House; Senate.....  Yes; detailed
 100-418), Sections 1102 (c) &     agreements          151 process.        Resolution.                                                 process
 1103 (a) [19 U.S.C. 2903] Trade   regarding tariff
 Act of 1974, as amended (P.L.     and nontariff
 93-618), Section 151 [19 U.S.C.   barriers.
 2191].
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Guide to abbreviations of committee names: SFRC--Senate Committee on Foreign Relations; HFAC--House Committee on Foreign Affairs, now House
  Committee on International Relations; HASC--House Armed Services Committee; SASC--Senate Armed Services Committee; HMM&F--House Merchant Marine and
  Fisheries Committee, now House Committee on Resources; S Commerce--Senate Committee on Commerce, Science, and Transportation; S Agriculture--Senate
  Committee on Agriculture, Nutrition, and Forestry.
\2\ Many GIFAs have been approved by Congress and entered into force before the end of the 60-day period.
\3\ OTCA is the Omnibus Trade and Competitiveness Act of 1988, Public Law 100-418.


    Almost all of the provisions require transmittal of the 
agreement to Congress prior to its entry into force. In only 
one of the ten cases, the Taiwan Relations Act, is the 
requirement similar to the Case Act requirement for transmittal 
after entry into force, and it differs by not having a deadline 
for transmittal. In that instance, the goal of the provision 
appears to be informational. Most of the legislation provides 
for congressional approval or disapproval of the agreement. An 
exception is the International Development and Food Assistance 
Act of 1978, as amended, which requires that agreements 
concerning debt relief be transmitted 30 days before they take 
effect, but does not provide for congressional action regarding 
the agreements. This would theoretically permit a congressional 
effort to halt the agreement, but there are no explicit 
procedures for this.
     The Social Security Amendments of 1977 provision allowing 
disapproval of social security agreements by a simple 
resolution of either house, a form of ``legislative veto,'' 
would seem a likely candidate for revision in light of the 
constitutional problems raised by the 1983 Supreme Court 
Decision of INS v. Chadha.\68\ In the remaining seven cases, 
such a legislative veto provision has been replaced by a 
requirement for a joint resolution of approval or disapproval. 
Provisions permitting Congress to reject or approve a proposed 
agreement by bill or joint resolution would not be affected by 
the Chadha decision. A joint resolution of approval would in 
all likelihood be signed by the President, but a joint 
resolution of disapproval would be subject to a veto by the 
President and thus require a two-thirds majority to override 
the President.
---------------------------------------------------------------------------
    \68\ 462 U.S. 919 (1983).
---------------------------------------------------------------------------
     The Fishery Conservation and Management Act of 1977, as 
amended, provides that the governing international fisheries 
agreements would enter into force at the end of a 60-day 
waiting period, unless Congress adopted a joint resolution of 
disapproval. The practice has been, however, that Congress has 
often, by legislation, approved the agreements, bringing them 
into force before the end of the 60-day period. The three trade 
agreement provisions all require affirmative approval by 
Congress to bring the agreement into force.

                     D. Required Reports to Congress

     A requirement that the executive branch report to Congress 
on some matter is an often used technique for maintaining 
oversight in the foreign affairs area. Some estimates of the 
number of reporting requirements in this field reach as high as 
820.\69\
---------------------------------------------------------------------------
    \69\ This figure is based on a count of foreign affairs related 
reporting requirements enacted by the Congress and in force as of the 
end of the 102d Congress in 1992.
---------------------------------------------------------------------------
     The reports may be required at regular intervals or upon 
the occurrence of a certain event. A much smaller number relate 
directly to oversight of international agreements. Table X-4 
provides a representative listing of such reports and their 
statutory basis. The reporting requirement process gives the 
Members and committees of Congress and their staff an 
informational tool for exploring further both past and future 
negotiations on a wide variety of issues.

                        Table X-4.--Required Reports Related to International Agreements
----------------------------------------------------------------------------------------------------------------
                                       Requirement/Citation to
              Agreement                          Law                   From Whom                Frequency
----------------------------------------------------------------------------------------------------------------
 Bretton Woods Agreements............  U.S. participation in    Treasury...............  Annual
                                        international
                                        financial institutions/
                                        P.L. 95-118, sec. 1701
                                        & P.L. 101-240, sec.
                                        541.
U.N. Charter.........................  Report on U.S.           President..............  Annual
                                        Participation in the
                                        United Nations/P.L. 79-
                                        264, sec. 4.
Various arms control agreements......  Adherence and            President..............  Annual, by January 31
                                        compliance with arms
                                        control agreements/
                                        P.L. 87-297, sec. 52,
                                        as amended.
Various trade agreements.............  Operation of the Trade   U.S. International       Annual
                                        Agreements Program/      Trade Commission.
                                        P.L. 93-618, sec. 163
                                        (b).
International Coffee Agreement, 1983.  Report on operation of   President..............  Annual
                                        agreement and the
                                        International Coffee
                                        Organization/P.L. 96-
                                        599, sec. 5, amended.
Nuclear Non-Proliferation Treaty.....  Review of government-    President..............  Annual, January
                                        wide activities to
                                        prevent proliferation/
                                        P.L. 95-242, sec. 601,
                                        amended.
U.N. Charter.........................  Special reports on       President..............  As occurs
                                        Security Council
                                        decisions to take
                                        enforcement measures/
                                        P.L. 79-264, sec. 4.
----------------------------------------------------------------------------------------------------------------


     In addition, the Senate, during its consideration of 
certain treaties, has added reporting requirements as a 
condition to its resolution approving U.S. ratification. For 
example, the Senate's ``advice and consent'' resolution of 
November 25, 1991, to the 1990 Treaty on Conventional Armed 
Forces in Europe (CFE) included a one-time requirement that the 
President certify to the Senate within 30 days of the 
resolution ``whether or not the Soviet Union is in violation or 
probable violation of the terms of the CFE Treaty and protocols 
thereto.'' On October 1, 1992, the Senate, in its resolution 
approving ratification of the 1991 Treaty on the Reduction and 
Limitation of Strategic Offensive Arms (START Treaty), required 
from the President within 180 days of the Senate resolution a 
one-time report on compliance with a number of arms control or 
reduction treaties including the SALT I Interim Agreement, SALT 
II, ABM, INF and START Treaties.

                E. Other Tools of Congressional Oversight

     Among other tools Congress has used for oversight of 
international agreements are implementation legislation, 
recommendations in legislation, consultation requirements, and 
oversight hearings. These are summarized briefly below. 
Further, section 136 of the 1970 Legislative Reorganization Act 
(Public Law 91-510), specifically required the committees of 
Congress to exercise oversight of those programs within their 
jurisdiction. An alternative approach that Congress has used in 
one instance is to establish a committee or commission, such as 
the [Helsinki] Commission on Security and Cooperation in 
Europe. This Commission, set up by Public Law 94-304, approved 
June 3, 1976, as amended, monitors the actions of the countries 
that signed the Final Act of the Conference on Security and 
Cooperation in Europe (CSCE), a nonbinding political agreement, 
especially those acts relating to human rights and cooperation 
in humanitarian fields. The Commission has 21 members, 18 of 
whom are members of the Congress. Three are from the executive 
branch. The President must report annually to Congress on 
compliance with or violation of provisions of the Final Act.

                     implementation legislation \70\
---------------------------------------------------------------------------

    \70\ See also section on Obligation to Implement in Chapter VIII 
above.
---------------------------------------------------------------------------
    Implementation legislation can be an effective method for 
overseeing a treaty or other international agreement. Many 
treaties require legislation to ensure implementation on a 
national basis of the international obligations established by 
the treaty. Congress might include in that implementation 
legislation certain provisions to ensure a congressional role 
in monitoring implementation of the treaty. Implementation 
legislation of this sort is often one-time legislation related 
to a treaty, but like other legislation it may be amended. Some 
citations to treaty implementation legislation are shown in 
Table X-5, for illustrative purposes.
     As Table X-5 shows, the subjects for implementation 
legislation are as varied as the subjects for the negotiation 
of treaties.
     Another type of implementation legislation occurs when the 
executive branch requests the authorization and appropriation 
of funds to carry out the terms of a treaty or international 
agreement other than treaty. When an international agreement 
requires funding, Congress is in a strong position to influence 
the extent to which that agreement will be implemented. 
Sometimes the provision of funds is a single legislative 
occurrence. Other agreements require an annual authorization 
and appropriation of funds, such as is authorized in the United 
Nations Participation Act, the implementing legislation for the 
U.N. Charter. Section 8 of this law authorizes annual 
appropriations for U.S. contributions to the United Nations. 
The annual authorization and appropriations for the Department 
of State are accompanied by hearings which give committees an 
opportunity to question the administration on U.S. 
participation in the United Nations.

                     recommendations in legislation

     Another tool for Congress to affect international 
agreements is legislation or resolutions asking the executive 
branch to initiate negotiations on an issue toward a specific 
goal or to ensure that an agreement under negotiation include a 
specific item of congressional interest. For example, in 
Section 37 of the Arms Control and Disarmament Act, as 
amended,\71\ Congress registered its sense ``that adequate 
verification of compliance should be an indispensable part of 
any international arms control agreement.''
---------------------------------------------------------------------------
    \71\ Public Law 87-297, approved Sept. 26, 1961, as amended by 
Public Law 95-108, August 17, 1977.

              Table X-5.--Legislation Implementing Treaties
------------------------------------------------------------------------
                                             Citation to Implementation
                Treaty Name                          Legislation
------------------------------------------------------------------------
1945 U.N. Charter.........................  P.L. 79-264, December 20,
                                             1945
1948 U.N. Convention on the Prevention and  P.L. 100-606, November 5,
 Punishment of the Crime of Genocide.        1988
1963 Convention on Offenses and Certain     P.L. 91-449, October 14,
 Other Acts Committed on Board Aircraft,     1970
 Tokyo.
1969 International Convention Relating to   P.L. 93-248, February 5,
 Intervention on the High Seas in Cases of   1974
 Oil Pollution Casualties, with annex.
1970 Convention for the Suppression of      P.L. 93-366, August 5, 1974
 Unlawful Seizure of Aircraft, Hague.
1971 Convention to Prevent and Punish Acts  P.L. 94-467, October 8, 1976
 of Terrorism Taking the Form of Crimes
 Against Internationally Protected Persons
 and Related Extortion That are of
 International Significance, OAS.
1971 Convention for the Suppression of      P.L. 98-473, October 12,
 Unlawful Acts Against the Safety of Civil   1984
 Aviation, Montreal.
1972 Convention on the Prohibition of the   P.L. 101-298, May 12, 1990
 Development, Production and Stockpiling
 of Bacteriological (Biological) and Toxin
 Weapons and on Their Destruction.
1973 Convention on the Prevention and       P.L. 94-456, October 8, 1976
 Punishment of Crimes Against
 Internationally Protected Persons,
 including Diplomatic Agents, New York
 (UN).
1977 Panama Canal Treaty..................  P.L. 96-70, September 27,
                                             1979
1979 Convention on the Physical Protection  P.L. 97-351, October 18,
 of Nuclear Material.                        1982
1979 Convention Against the Taking of       P.L. 98-473, October 12,
 Hostages.                                   1984
1990 Treaty on Conventional Armed Forces    P.L. 102-228, December 12,
 in Europe (CFE Treaty).                     1991
1993 Hague Convention on Protection of      P.L. 106-279, October 6,
 Children and Cooperation in Respect of      2000
 Intercountry Adoption.
------------------------------------------------------------------------


     In a second example, Congress, in 1990, adopted two laws 
on Antarctica, expressing its concerns on the preservation of 
the Antarctic environment. In the Antarctic Protection Act of 
1990, Congress stipulated that the Secretary of State negotiate 
an international agreement that would, among other things, 
``prohibit or ban indefinitely Antarctic mineral resource 
activities by all parties to the Antarctic Treaty.'' Congress 
further determined that ``any treaty or other international 
agreement submitted by the President to the Senate for its 
advice and consent to ratification relating to mineral 
resources or activities in Antarctica should be consistent with 
the purpose and provisions of this Act.'' \72\ In a second law, 
Protection of Antarctica as a Global Ecological Commons, 
Congress stated that ``pending negotiation and entry into force 
of * * * new agreements'' regarding environmental protection, 
the 1988 ``Convention on the Regulation of Antarctic Mineral 
Resource Activities should not be presented to the Senate for 
advice and consent to ratification.'' \73\ As a result of these 
provisions, the executive branch went back into negotiations, 
working out a Protocol on Environmental Protection to the 
Antarctic Treaty that was adopted in October 1991, submitted to 
the Senate in February 1992, and approved by the Senate in 
October 1992 for U.S. ratification. The Protocol, with its 
annexes, establishes a comprehensive, legally binding 
environmental protection regime for Antarctica and prohibits 
all Antarctic mineral resource activities, except for 
scientific research. This prohibition may not be reviewed until 
at least 50 years following entry into force of the Protocol.
---------------------------------------------------------------------------
    \72\ Public Law 101-594, approved November 16, 1990.
    \73\ Public Law 101-620, approved November 16, 1990.
---------------------------------------------------------------------------
     The House and the Senate, acting separately in simple 
resolutions, or jointly, in concurrent or joint resolutions, 
have over the years expressed their views on a variety of 
circumstances, including those calling on the President or 
other officials of the executive branch to negotiate an 
agreement on a particular issue or to take a particular 
position on a set of negotiations or vis-a-vis another 
government.\74\
---------------------------------------------------------------------------
    \74\ A list of these resolutions may be found in the Legislative 
Review Activities Report of the House Committee on International 
Relations and the Legislative Activities Report of the Senate Committee 
on Foreign Relations, each of which covers an entire Congress. Other 
expressions of position may be found in such omnibus pieces of 
legislation as the Foreign Relations Authorization Act and the Foreign 
Assistance Act of 1961, as published in the multi-volume compilation, 
Legislation on Foreign Relations, published annually as a joint 
committee print of the House International Relations and Senate Foreign 
Relations Committees.
---------------------------------------------------------------------------

                        consultation requirements

     Another method of keeping track of administration actions 
on international agreements is to provide in legislation for 
consultation with Congress prior to or during negotiations that 
would result in a treaty or executive agreement. The Omnibus 
Trade and Competitiveness Act includes mechanisms for 
consultation on negotiations including the selection of five 
members of the House Ways and Means Committee and Senate 
Finance Committee as congressional advisers for trade policy 
and negotiations who would be accredited by the U.S. Trade 
Representative as official advisers to U.S. delegations to 
international conferences, meetings, and negotiating sessions 
when trade agreements are involved.\75\ This section also 
provides for regular consultations with the appropriate 
committees on U.S. trade policy and direction.
---------------------------------------------------------------------------
    \75\ Section 1632, Omnibus Trade and Competitiveness Act of 1988, 
Public Law 100-418, approved August 23, 1988.
---------------------------------------------------------------------------
     Congress has also sought consultation on the termination 
of a treaty. The International Security Assistance Act of 1978 
contained the following clause regarding the Mutual Defense 
Treaty with the Republic of China: ``It is the sense of the 
Congress that there should be prior consultation between 
Congress and the executive branch on any proposed changes 
affecting the continuation in force of the Mutual Defense 
Treaty of 1954.'' \76\ It might be noted that the treaty was 
terminated by the President with almost no real consultation 
with Congress.\77\ In another example, U.S. withdrawal of its 
declaration accepting the compulsory jurisdiction of the World 
Court, a concurrent resolution deploring the U.S. notification 
was introduced and hearings held, but Congress did not approve 
the resolution.\78\
---------------------------------------------------------------------------
    \76\ Section 26, Public Law 95-384, approved September 26, 1978. On 
December 23, 1978, the State Department delivered notice, effective 
January 1, 1979, that the United States was terminating the treaty. 
Under Article X, the treaty remained in force until January 1, 1980.
    \77\ U. S. Congress. House. Committee on Foreign Affairs. 
Executive-Legislative Consultation on China Policy, 1978-1979. By 
Robert G. Sutter. Committee Print, June 1980.
    \78\ For discussion see Chapter VIII.
---------------------------------------------------------------------------

                           oversight hearings

     In keeping with the overall obligation of committees to 
maintain oversight of executive branch programs within their 
jurisdiction, international agreements in their various stages 
have been monitored in Congress. This has included hearings on 
the need for and purpose of negotiations, the status and 
direction of negotiations, the agreements resulting from 
negotiations and their impact and implementation requirements, 
and after they come into force, the nature and effect of 
compliance with the provisions of the agreements.
     For example, at different times between 1983 and 1992, 
various committees in Congress have held hearings on the 1982 
U.N. Convention on the Law of the Sea, which was negotiated, 
with constant congressional review, over a previous 8- to 11-
year period. The focus of occasional hearings during the 1980s 
was the extent to which U.S. interests were served by remaining 
outside the treaty and legislative and other steps that might 
be required to best protect U.S. law of the sea interests. On 
other issues, the Senate Foreign Relations Committee during 
1991 and 1992, held hearings on possible nuclear proliferation 
issues in North Korea, conducted regular hearings on 
developments regarding chemical weapons proliferation and 
efforts to negotiate a treaty in this area, and held a series 
of hearings in 1991 on ``issues related to a bilateral Free 
Trade Agreement with Mexico,'' to name only a few examples.


             XI. TRENDS IN MAJOR CATEGORIES OF TREATIES \1\
---------------------------------------------------------------------------

    \1\ Prepared by Richard F. Grimmett, Specialist in National Defense 
and the following CRS analysts and attorneys who made specialized 
contributions to various sections: Amy Wolff, Jonathan Medalia, Jeanne 
J. Grimmett, Robert Burdette, Susan Fletcher, Charles Doyle, Larry Eig, 
Vita Bite and Lois McHugh.
---------------------------------------------------------------------------
                              ----------                              

    The subject matter of treaties is varied and reflects 
changing circumstances that affect U.S. foreign policy 
interests. In the first decade after World War II, from 1945 
through 1955, treaties established a network of political and 
security alliances that provided a framework that endured 
throughout the Cold War. Later, the focus of political-security 
treaties shifted to arms control. The end of the Cold War 
brought new or revised agreements with a number of Eastern 
European nations and the independent states formed from the 
former Soviet Union and the former Yugoslavia. A security 
treaty framework to reflect the new international environment 
in the post-Cold War era is still emerging.
    New policy concerns have led to a growing importance of 
treaties outside the traditional political-security field. 
Economic treaties, including consular, investment, and tax 
agreements, have become the main component of such treaties 
submitted to the Senate. To deal with international narcotics 
trafficking and other crimes, the United States has embarked on 
a new series of treaties for legal cooperation, such as 
extradition and mutual legal assistance treaties (MLATs). 
Treaties for conservation of certain species of wildlife and 
regulation of fisheries have been supplemented with broad 
treaties for environmental cooperation.
    The number of treaties submitted to Congress reflects the 
legislative-executive balance of power and views regarding 
which international agreements must be submitted to the Senate. 
After the immediate post-World War II period, few significant 
political and military commitments, except in arms control, 
were made by treaty. For the rest of the Cold War, the Senate 
acquiesced when Presidents expanded the post-World War II 
treaty framework with executive agreements.\2\ In the case of 
the Treaty on the Final Settlement with Respect to Germany, 
discussed below, the Senate insisted it be submitted as a 
treaty.
---------------------------------------------------------------------------
    \2\ For example, after getting the Spanish Bases Agreement 
submitted to the Senate as a treaty in 1975, the Senate agreed that a 
successor base agreement could be concluded as an executive agreement 
when Spain became a member of the North Atlantic Treaty Organization 
(NATO), in keeping with agreements with other NATO countries. Agreement 
Extending for Eight Months Provisions of the Treaty of Friendship and 
Cooperation with Spain (Treaty Doc. 97-20, September 4, 1981, approved 
by Senate November 18, 1981), Exec. Rept. 97-24, November 9, 1981.
---------------------------------------------------------------------------
    A principal concern of Presidents about treaties has been 
that a minority in the Senate could use the advice and consent 
power to block executive branch plans or even the will of the 
majority in the Senate. In practice the Senate has rejected few 
treaties either directly or indirectly and, except for the 
Versailles Treaty providing for membership in the League of 
Nations, the rejection of treaties by the Senate has seldom 
affected foreign policy in a major way. The Senate has 
continued in its long-established pattern of approving most 
treaties without crippling conditions. At the same time, the 
Senate has added conditions on the substance of treaties when 
it deemed conditions essential, as in certain arms control, 
tax, and human rights treaties.
    A statutory agreement, that is a congressionally approved 
or authorized executive agreement, has historically provided an 
alternative. Such an alternative allows congressional 
involvement in international agreements and provides for 
majority control. But it does not call for the extraordinary 
majority and greater recognition of the interests of 50 
individual states provided by the two-thirds Senate majority 
specified in the Constitution. In some areas, especially trade 
agreements, Congress has chosen this option. In other areas, 
such as arms control, the Senate has insisted that 
international agreements be concluded as treaties.
    The Senate has also demonstrated in other ways an intention 
to maintain the significance of the treaty power. For example, 
it has added provisions or expressed concerns that treaties be 
interpreted in accordance with the common understanding shared 
by the Senate at the time it gave its advice and consent, and 
that they not be reinterpreted without the advice and consent 
of the Senate, as indicated in the section on arms control 
below. Similarly, the Senate has protested when the executive 
branch signed multilateral treaties with a provision 
prohibiting nations from ratifying with reservations, as 
indicated in the section on environmental treaties below.
    This chapter discusses trends in five broad categories of 
treaties: political and security, economic, environmental, 
legal cooperation, and human rights. The focus is on the period 
from 1983 through late 2000, but the study sometimes discusses 
earlier periods for comparative purposes. Similarly, the 
chapter sometimes discusses international agreements other than 
treaties for illustrative purposes.

                  A. Political and Security Agreements

    At the end of World War II, treaties played an important 
part in shaping post-war U.S. foreign policy, especially in the 
political and security field. Peace treaties were concluded 
with Italy, Romania, Bulgaria, Hungary, and Japan. The Charters 
of the United Nations and the Organization of American States 
provided a framework for international cooperation.
    After that time, a decline in the significance of treaties 
submitted to the Senate in the political-security field became 
apparent. In 1972, Senator J. William Fulbright, chairman of 
the Foreign Relations Committee, wrote there had been a 
``steady attrition of the status and significance of treaties 
submitted to the Senate.'' \3\ He compared the importance of 
numerous agreements not submitted to the Senate, such as a 1968 
executive agreement to return the Bonin Islands to Japan, with 
the less significant nature of some agreements that were 
submitted, such as a protocol with Mexico modifying an 
agreement on radio broadcasting.
---------------------------------------------------------------------------
    \3\ Fulbright, J. William. The Crippled Giant: American Foreign 
Policy and Its Domestic Consequences. New York, Random House, 1972. p. 
217.
---------------------------------------------------------------------------
    In more recent years, with the exception of the Panama 
Canal Treaties of 1977 and arms control agreements, few 
important political or defense agreements have been concluded 
as treaties. The United States has entered several major 
agreements in the political-security field, but for various 
reasons Presidents have not submitted them to the Senate as 
treaties. Several have been concluded as executive agreements, 
including the 1973 Paris agreement on the end of the Vietnam 
War, the Afghanistan settlement agreement of April 1988, and 
the political settlement of the Cambodia conflict of October 
1991.\4\ Others have been considered political statements or 
politically but not legally binding agreements, such as the 
U.S.-Russian Charter \5\ or agreements that have been concluded 
in the Conference on Security and Cooperation in Europe 
(CSCE).\6\
---------------------------------------------------------------------------
    \4\ Act of the International Conference on Vietnam, March 2, 1973. 
24 UST 485; TIAS 7568; 935 UNTS 405; Afghanistan Settlement Agreement 
of April 14, 1988, State Department Document Number 88-163; Agreement 
on a Comprehensive Political Settlement of the Cambodia Conflict, 
October 23, 1991, State Department Document Number 91-240; and 
Agreement Concerning the Sovereignty, Independence, Territorial 
Integrity and Inviolability, Neutrality and National Unity of Cambodia, 
October 31, 1991, State Department Document Number 91-243.
    \5\ A Charter for American-Russian Partnership and Friendship, June 
17, 1992. Department of State Dispatch, June 22, 1992. vol. 3, p. 490.
    \6\ Vienna Document 1992 of the Negotiations on Confidence and 
Security-Building Measures, March 4, 1992. Department of State Dispatch 
Supplement, July 1992.
---------------------------------------------------------------------------

               national security and defense commitments

    In 1969, the Senate adopted the National Commitments 
Resolution, which defined a national commitment as ``the use of 
Armed Forces of the United States on foreign territory, or a 
promise to assist a foreign country, government, or people by 
the use of Armed Forces or financial resources of the United 
States, either immediately or upon the happening of certain 
events.'' The resolution expressed the sense ``that a national 
commitment by the United States results only from affirmative 
action taken by the executive and legislative branches of the 
United States Government by means of a treaty, statute, or 
concurrent resolution of both Houses of Congress specifically 
providing for such commitment.'' \7\ Since the initial post-
World War II security treaties, however, security commitments 
have been made almost entirely by means other than treaties.
---------------------------------------------------------------------------
    \7\ S. Res. 85, 91st Cong., 1st Sess., adopted June 25, 1969.
---------------------------------------------------------------------------
    The framework for the current U.S. network of mutual 
security treaties was built between 1947 and 1954, with the 
North Atlantic Treaty, the Inter-American Treaty of Reciprocal 
Assistance, the Southeast Asian Treaty, the ANZUS Pact with 
Australia and New Zealand, and bilateral security treaties with 
the Philippines, South Korea, Japan, and the Republic of China 
(Taiwan). Since that time, no new mutual security commitments 
have been made by treaty, with the possible exception of an 
additional commitment, embodied in the Panama Canal Treaties of 
1979, to protect the Panama Canal until December 31, 1999, and 
to maintain permanently its regime of neutrality. The only 
defense agreement submitted as a treaty in the 1980s, the 
Treaty Between the United States and Iceland to Facilitate 
their Defense Relationship, had a primarily economic purpose: 
superseding U.S. cargo preference laws and equitably sharing 
trade.\8\
---------------------------------------------------------------------------
    \8\ Exec. Rept. 99-7, October 8, 1986. Treaty Doc. 99-31. Signed 
September 24, 1984. Approved by the Senate October 8, 1986.
---------------------------------------------------------------------------
    In 1992, at the request of Congress, President Bush 
submitted to Congress a list of current U.S. security 
commitments, defined by the administration as ``an obligation, 
binding under international law, of the United States to act in 
the common defense in the event of an armed attack on that 
country.'' \9\ The President listed only one U.S. security 
commitment in addition to those concluded from 1947 to 1954 
mentioned above. This was to the Freely Associated States, 
embodied in the Compacts of Free Association with the Republic 
of the Marshall Islands and the Federated States of Micronesia. 
Approved by Congress, the compacts give the United States 
``full authority and responsibility for security and defense 
matters, in or relating to'' those states, including the 
obligation to defend them and their peoples from attacks or 
threats thereof, ``as the United States and its citizens are 
defended.'' \10\
---------------------------------------------------------------------------
    \9\ A Report on United States Security Arrangements and Commitments 
with Other Nations, Submitted to the Congress in accordance with 
Section 1457 of Public Law 101-510, the National Defense Authorization 
Act of 1991, August 17, 1992.
    \10\ Section 311, Public Law 99-239, signed January 14, 1986.
---------------------------------------------------------------------------
    The President also listed a number of U.S. ``security 
arrangements,'' defined as a pledge by the United States to 
some action in the event of a threat to that country's 
security. According to the President, ``security arrangements 
typically oblige the United States to consult with a country in 
the event of a threat to its security. They may appear in 
legally binding agreements, such as treaties or executive 
agreements, or in political documents, such as policy 
declarations by the President, Secretary of State or Secretary 
of Defense.'' \11\
---------------------------------------------------------------------------
    \11\ U.S. President. A Report on United States Security 
Arrangements.
---------------------------------------------------------------------------
    Most of the legally binding security arrangements listed in 
the President's report were prior to the 1980s, and would be 
considered sole executive agreements, namely agreements with 
Israel, Egypt, Pakistan, and Liberia.\12\ One could be 
considered a statutory agreement: in 1981, executive agreements 
committed the United States to the establishment of the 
Multinational Force and Observers (MFO) in the Sinai, subject 
to congressional authorization and appropriations, and Congress 
subsequently authorized the MFO in legislation.\13\
---------------------------------------------------------------------------
    \12\ Memoranda of Agreement (concerning Assurances, Consultations, 
and United States Policy on Matters Related to Middle East Peace, 
concluded on September 1, 1975, with Egypt (32 UST 2150; TIAS 9828) and 
Israel (32 UST 2150; TIAS 9828) and an updated memorandum dated March 
26, 1979, following the Israeli-Egyptian Peace Treaty, 32 UST 214 1; 
TIAS 9825.
    Agreement of Cooperation with Pakistan, March 5, 1969, 10 UST 317; 
TIAS 4190; UNTS 285.
    Agreement of Cooperation with Liberia, July 8, 1959, 10 UST 1598; 
TIAS 4303; 357 UNTS 93.
    \13\ Identical letters of August 3, 1981, from Secretary of State 
Haig to Egyptian Deputy Prime Minister/Foreign Minister and Israeli 
Foreign Minister, August 3, 1981, TIAS 10556 and 10557; Congress 
authorized participation in the Multinational Force and Observers 
Participation Resolution, Public Law 97-132, signed December 29, 1981.
---------------------------------------------------------------------------
    The President listed as security arrangements in political 
documents executive branch declarations of support for Israel, 
the Carter Doctrine on the Persian Gulf of January 23, 1980, 
and the Declaration on the Air Defense of India of July 22, 
1963. He also included two policies embodied in the Eisenhower 
Doctrine on International Communism and the Middle East, and 
the Taiwan Relations Act of 1979.
    Finally, the President reported that a large number of 
defense agreements, including those on training and pre-
positioning of equipment, establish conditions under which the 
United States may undertake activities with or in other 
countries. He said these could not be considered security 
commitments or arrangements because they did not obligate the 
United States to act in defense of another country.
    A survey of lists submitted under the Case Act indicates 
that the United States has concluded large numbers of executive 
agreements concerning defense. Many of these involve routine 
military cooperation and assistance. Often these have been with 
partners in a security treaty such as Japan, Korea, or the NATO 
countries, and could be considered executive agreements 
pursuant to treaty. Some have been with non-treaty states, such 
as Saudi Arabia.\14\
---------------------------------------------------------------------------
    \14\ Agreement extending agreements of May 24 and June 5, 1965, 
relating to the construction or military facilities in Saudi Arabia, 
February 14, 1989, State Department Document Number 89-89.
---------------------------------------------------------------------------
    In addition, some defense agreements are not made public. 
Since these are transmitted to Congress on a classified basis, 
they have not been analyzed for this report. An example would 
be a bilateral defense agreement concluded with Kuwait after 
Operation Desert Storm. According to press reports, on 
September 19, 1991, the United States agreed to pre-position 
equipment in Kuwait that could help defend Kuwait, and Kuwait 
would contribute funds to help pay the cost and allow U.S. 
access to Kuwaiti facilities.\15\ The agreement also provided 
for arms sales, training, and joint military exercises.
---------------------------------------------------------------------------
    \15\ Kuwait to Pay $215 Million for U S. Presence. Defense News, 
June 15, 1992. p. 26. Kuwait Journal: The Runaway Army is Back But 
Standing at Ease. New York Times, January 14, 1992, p. A4.
---------------------------------------------------------------------------
    Since the early 1980s, with the exception of arms control 
treaties, only a few treaties approved by the Senate fell into 
the political or security category. These included treaties 
that dealt with boundaries between South Pacific Islands,\16\ 
the Constitution of the United Nations Industrial Development 
Organization,\17\ an Amendment to the Statute of the 
International Atomic Energy Agency, and approval of the 
Protocols to the North Atlantic Treaty on the Accession of 
Poland, Hungary, and the Czech Republic.\18\
---------------------------------------------------------------------------
    \16\ All four were approved by the Senate on June 21, 1993: Treaty 
of Friendship with Tuvalu (Ex. W, 96-1, signed September 20, 1979); 
Friendship Treaty with Kiribati (Ex. A, 96-2, signed September 20, 
1979); Friendship and Maritime Boundary Treaty with the Cook Islands 
(Ex. P. 96-2, signed September 3, 1980); Treaty with New Zealand on the 
Delimitation of the Maritime Boundary between the United States and 
Tokelau (Treaty Doc. 97-5, signed December 2, 1980).
    \17\ Constitution of the United Nations International Development 
Organization (Treaty Doc. 97-19, adopted April 8, 1979, approved by the 
Senate, with understandings, June 21, 1983).
    \18\ Amendment to the Statute of the International Atomic Energy 
Agency, increasing the board members from nine to ten (Treaty Doc. 99-
7, approved by IAEA September 27, 1984). Approved by the Senate 
September 7, 1988. Protocols to the North Atlantic Treaty of 1949 on 
the Accession of Poland, Hungary, and the Czech Republic (Treaty Doc. 
105-36, Exec. Rept. 105-14, reported with seven declarations and four 
conditions on March 6, 1998. Advice and consent given on April 30, 
1998).
---------------------------------------------------------------------------
    Two other very important treaties of the early 1990s in all 
likelihood would have been concluded as executive agreements 
except for close Senate oversight. Senate action to obtain 
submission of these two treaties, the Final Settlement with 
Respect to Germany and the Maritime Boundary Agreement with the 
Soviet Union, is discussed below.
Treaty on the Final Settlement with Respect to Germany
    The Treaty on the Final Settlement with Respect to Germany, 
signed September 12, 1990,\19\ one of the first major post-Cold 
War treaties, was concluded after the Communist regime in 
Eastern Germany collapsed at the end of 1989, the Berlin Wall 
fell, and reunification of Germany appeared inevitable. Its 
purpose was to terminate the remaining rights in Germany of the 
United States, France, the United Kingdom, and the Soviet 
Union, which had been established at the end of World War II. 
It also confirmed the borders of a united Germany and 
reaffirmed Germany's renunciation of nuclear, biological, and 
chemical weapons.
---------------------------------------------------------------------------
    \19\ Treaty Doc. 101-20. Signed by the Four Powers from the Second 
World War (United States, France, the United Kingdom, and the Soviet 
Union) and the two Germanys (the Federal Republic of Germany and the 
German Democratic Republic) in Moscow.
---------------------------------------------------------------------------
    On July 23, 1990, the Senate Foreign Relations Committee 
held hearings to discuss the future status of Germany and the 
legal instruments that would embody the agreements being 
negotiated. The State Department spokesman said the decision on 
whether the agreement would be submitted to the Senate had not 
yet been made, but indicated a leaning toward an executive 
agreement. He held that the allied rights and other subjects 
that were being negotiated were established in executive 
agreements, not treaties, and were technical in nature; that 
the West German Government wished to avoid a peace treaty that 
might make them appear as a vanquished foe rather than a close 
ally; and that the treaty did not constitute new obligations 
that involved commitments or risks affecting the nation as a 
whole.\20\ Private witnesses stressed the importance of Senate 
advice and consent and therefore of a peace treaty with 
Germany.
---------------------------------------------------------------------------
    \20\ U.S. Congress. Senate. Committee on Foreign Relations. Legal 
Issues Relating to Future Status of Germany. Hearing. July 12, 1990. S. 
Hrg. 101-899, Statement of Michael K. Young, Deputy Legal Advisor, pp. 
2-11.
---------------------------------------------------------------------------
    After the agreement was signed, Senate Majority Leader 
George Mitchell called on the administration to submit the 
treaty to the Senate as soon as possible so the Senate could 
address it prior to adjournment. Noting press reports that 
unidentified administration officials believed the agreement 
might not require Senate approval, Senator Mitchell said:
          Such a view hardly merits serious consideration. It 
        is an erroneous one. It is my judgment that this treaty 
        bears on issues of historic importance, of great 
        significance for our national security as well as for 
        our future political relations with all of Europe, and 
        treaties on such matters absolutely require the 
        participation of the Senate in its treatymaking 
        role.\21\
---------------------------------------------------------------------------
    \21\ Congressional Record, September 18, 1990, p. S13292 (daily 
ed.).

    The President submitted the treaty to the Senate on 
September 26, 1990. Later, Senate Foreign Relations Committee 
Chairman Claiborne Pell said Secretary Baker had asked his 
views, and Senator Pell felt strongly it should be a 
treaty.\22\ On October 5, 1990, the Foreign Relations Committee 
reported the treaty without condition and the Senate approved 
it by a vote of 98-0 on October 9, 1990. Simultaneously, the 
committee also reported and the Senate approved a companion 
measure, a simple resolution expressing the sense of the Senate 
that U.S. ratification not be construed to diminish U.S. 
determination not to recognize the incorporation of the Baltic 
States by the Soviet Union.\23\
---------------------------------------------------------------------------
    \22\ U.S. Congress. Senate. Committee on Foreign Relations. Treaty 
on the Final Settlement with Respect to Germany. Hearing. September 28, 
1990. S. Hrg. 101-1124, p. 38.
    \23\ S. Res. 334, approved by Senate October 9, 1990.
---------------------------------------------------------------------------
Maritime Boundary Agreement with the Soviet Union
    The Agreement with the U.S.S.R. on the Maritime Boundary 
concluded June 1, 1990,\24\ resolved a dispute between the 
United States and the Soviet Union which arose after 1977 when 
both nations established 200-mile fishery and exclusive 
economic zones (EEZs). The formation of these zones revealed 
conflicting interpretations and measurements of the line 
established in the 1867 Convention ceding Alaska.
---------------------------------------------------------------------------
    \24\ Signed June 1, 1990, and submitted to the Senate September 26, 
1990. Treaty Doc. 101-22.
---------------------------------------------------------------------------
    During the negotiations, which lasted 9 years, some 
Senators became concerned that the Department of State was 
considering concluding the agreement as an executive agreement 
on grounds that the 1867 line was a boundary line and the new 
line was just a variation. Senator Jesse Helms contended the 
1867 line was merely a line of demarcation but not a boundary 
under international law, and that boundaries such as the new 
line had always been delimited by treaty. Subsequently, in 1989 
the Senate adopted legislation stating its sense that the 
Department of State should submit to the Senate in treaty form 
all boundary agreements with the Soviet Union. In the 
conference with the House, this was changed to a sense of 
Congress statement ``that all international agreements 
pertaining to the international boundaries of the United States 
should be submitted to the Congress for such consideration as 
is appropriate pursuant to the respective constitutional 
responsibilities of the Senate and the House of 
Representatives.'' \25\ The agreement was submitted to the 
Senate on September 26, 1990, and approved without reservation 
by a vote of 86-6 on September 16, 1991.
---------------------------------------------------------------------------
    \25\ Introduced by Senator Jesse Helms, July 20, 1989, as amendment 
to Foreign Relations Authorization Act, FY 1990 and 1991. Adopted as 
Section 1007. See Exec. Rept. 102-13.
---------------------------------------------------------------------------

                         arms control treaties

    Arms control treaties are the only category of agreement in 
the political-military field that have been concluded primarily 
in treaty form, and have provided the major vehicle in recent 
years for special Senate influence on foreign policy. This may 
be in part because the congressional desire to pass judgment on 
arms control agreements was clear. The Arms Control and 
Disarmament Act provided that no action obligating the United 
States to reduce its armaments could be taken except pursuant 
to the treatymaking power or unless authorized by further 
affirmative legislation by Congress.\26\ The policy statement 
was buttressed by the power Congress has in determining levels 
of armaments and armed forces through defense authorizations 
and appropriations. Presidents have submitted most arms control 
agreements to the Senate as treaties. An exception is the SALT 
I Interim Agreement, signed May 26, 1972, which President Nixon 
submitted as a statutory agreement and Congress approved by 
legislation.\27\
---------------------------------------------------------------------------
    \26\ Section 33, Public Law 87-297, as amended, approved September 
26, 1961.
    \27\ Public Law 92-448, signed September 30, 1972.
---------------------------------------------------------------------------
    Arms control treaties in recent years have generally been 
among the most controversial treaties and those on which the 
Senate has spent the most time. In addition to the Foreign 
Relations Committee, the Armed Services, Intelligence, 
Governmental Affairs, and Judiciary Committees have reviewed 
arms control agreements and sometimes issued reports on them. 
The Senate also established a bipartisan Senate Arms Control 
Observer Group in 1985 to observe and monitor arms control 
negotiations with the Soviet Union. The members served as 
consultants and advisers at negotiations and had frequent 
meetings with executive branch and military officials.\28\ 
During the 1990s, as the United States and Russia stopped 
holding formal arms control negotiations while awaiting the 
ratification and entry into force of existing agreements, the 
Arms Control Observer Group curtailed its activities. In 1999, 
in an effort to reinvigorate the group and restore Senate 
involvement in the arms control process, the Arms Control 
Observer Group was reconstituted as the Senate National 
Security Working Group. The members of this new group were to 
act as observers at negotiations relating to the ``reduction, 
limitation, or control of conventional weapons, weapons of mass 
destruction, or the means of delivery of any such weapons,'' at 
negotiations on missile defenses, and at negotiations on export 
controls.\29\
---------------------------------------------------------------------------
    \28\ A list of the activities of the Senate Arms Control Observer 
Group is contained in the remarks of Senator Lugar in the Congressional 
Record, September 30, 1992, pp. S15715-S15719.
    \29\ This was accomplished through S. Res. 75 on March 25, 1999. 
Congressional Record, March 25, 1999, p. S3565.
---------------------------------------------------------------------------
    The United States and Russia have, in the past decade, 
taken numerous steps to alter their nuclear forces without the 
formal framework provided by treaties. Chief among these were 
the Presidential Nuclear Initiatives of 1991. In late 
September, President George Bush announced that he was 
withdrawing all U.S. non-strategic nuclear weapons from naval 
vessels and overseas deployment, and stated that the United 
States would eliminate many of these weapons.\30\ He called on 
Soviet President Gorbachev to take similar steps. President 
Gorbachev reciprocated in early October.\31\ These initiatives 
led to significant reductions in deployed nuclear forces. 
Although many Members of Congress praised these initiatives 
after they were announced, President Bush neither consulted 
with nor informed the Senate of his intentions prior to 
announcing the initiatives.
---------------------------------------------------------------------------
    \30\ Presidential Initiative on Nuclear Arms. Fact Sheet. The White 
House, Office of the Press Secretary, September 27, 1991.
    \31\ Text of Gorbachev Reply to President's Nuclear Initiative. 
U.S. Embassy, Moscow. October 5, 1991.
---------------------------------------------------------------------------
    In several cases, the United States has chosen to abide by 
treaties without gaining Senate advice and consent to 
ratification. This occurred with the SALT II Treaty, which the 
United States and the Soviet Union signed on June 18, 1979.\32\ 
The Senate never voted on the treaty although the Foreign 
Relations Committee reported it favorably with 2 reservations 
and 18 statements and understandings. In December 1979, after 
the Soviet invasion of Afghanistan, President Carter asked that 
consideration be postponed, and Presidents Reagan and Bush 
never asked for consideration. On May 30, 1982, President 
Reagan declared that the United States would refrain from 
actions that would undercut the SALT agreements as long as the 
Soviet Union showed equal restraint. Congress played a role in 
shaping this policy because many Members had urged President 
Reagan to observe the limits in SALT II. A similar circumstance 
existed with respect to the 1974 Threshold Test Ban Treaty, 
which limited the underground nuclear tests to 150 kilotons. 
President Ford submitted the treaty to the Senate in 1976 but 
the Senate did not approve ratification until 1990, after the 
United States and the Soviet Union had negotiated new 
verification protocols. In the interim, the United States did 
observe the treaty's 150 kiloton limit on nuclear weapons 
tests.
---------------------------------------------------------------------------
    \32\ Ex. Y, 96-1. Submitted to the Senate June 25, 1979, Reported 
November 19, 1979, Exec. Rept. 96-14. Automatically re-referred at end 
of 96th Congress. Resolution to discharge committee submitted, July 15, 
1986, S. Ex. Res. 445. Ordered returned to the President by S. Res. 
267, approved by the Senate on October 12, 2000.
---------------------------------------------------------------------------
     In contrast, during the latter half of the 1990s, Congress 
prohibited the United States from reducing its nuclear forces 
to the levels mandated by the second Strategic Arms Reduction 
Treaty (START II) until that treaty entered into force. 
Beginning in fiscal year 1998, it included a provision in the 
annual defense authorization bills that precluded obligating or 
expending funds for ``retiring or dismantling, or for preparing 
to retire or dismantle'' strategic nuclear weapons that the 
United States would have retained under the START I Treaty but 
eliminated under START II.\33\ The U.S. Senate had consented to 
ratification of START II in January 1996, but the Russian 
parliament did not approve this treaty until April 2000. Many 
in Congress and the Clinton Administration believed that this 
legislation would provide an incentive for Russia to approve 
the treaty by indicating that the United States would not 
reduce its forces until START II entered into force.
---------------------------------------------------------------------------
    \33\ Public Law 105-85, Sec. 1302, as amended by Public Law 106-65 
Sec. 1501.
---------------------------------------------------------------------------
     The United States has also pursued arms control through 
agreements other than treaties. Some ``confidence-building 
measures,'' such as an agreement of September 30, 1971, on 
measures to reduce the risk of outbreak of nuclear war by 
accident, have been concluded as executive agreements. In other 
cases, particularly under the CSCE, agreements have been 
labeled politically, rather than legally, binding. At the 1992 
Helsinki Review Conference, NATO and former Warsaw Pact members 
signed a follow-up conventional arms accord on regulating troop 
levels between the Atlantic and the Urals.\34\ Congress has 
closely monitored action in the CSCE through a joint Commission 
on Security and Cooperation in Europe. Congress also initiated 
an ``arms control'' program with the Soviet Union and Russia 
through its passage of the Nunn-Lugar amendment to the 
implementing act for the Conventional Armed Forces in Europe 
(CFE) Treaty.\35\ This amendment created the Cooperative Threat 
Reduction (CTR) Program, which has provided U.S. assistance to 
Russia and other former Soviet states to help with the safe and 
secure transportation, storage, and elimination of nuclear and 
other weapons and materials. The United States has signed 
numerous Memorandums of Understanding with the recipient 
nations to implement this program, but none has required Senate 
advice and consent. Nonetheless, Congress affects policy and 
expenditures on this program through the annual authorization 
and appropriations process.
---------------------------------------------------------------------------
    \34\ White House statement said, ``President Bush also signed the 
Concluding Act of the Negotiation on Personnel Strength of Conventional 
Armed Forces ion Europe, otherwise known as the CFE-1A agreement * * *. 
The CFE-1A accord places politically binding limits on military 
manpower in Europe.'' CFE Treaty and CFE-1A Agreement. U.S. Department 
of State Dispatch. July 13, 1992, p. 560.
    \35\ Public Law 102-228. Signed on December 12, 1991. Congressional 
Record, November 25, 1991, p. S18003.
---------------------------------------------------------------------------
     The complexity and detail in arms control treaties has 
increased significantly as a result of the desire of the 
legislative and executive branches to assure adequate 
verification. The detailed provisions have often resulted in a 
need for modifications and the development of mechanisms for 
informal amendments, usually negotiated in compliance bodies 
established by the treaties, that are not submitted to the 
Senate.\36\ In addition, agreements on implementation issues 
often concluded as executive agreements that are not submitted 
to the Senate.
---------------------------------------------------------------------------
    \36\ For discussion, see Koplow, David A. When Is an Amendment Not 
an Amendment?: Modifications of Arms Control Agreements Without the 
Senate. University of Chicago Law Review. vol. 59, Summer 1992, pp. 
981-1072.
---------------------------------------------------------------------------
    As in other categories, the Senate has, since the end of 
World War II, approved most arms control treaties without 
formally attaching conditions of any type.\37\ Since the mid-
1980s, however, the Senate has attached significant conditions 
to the major arms control treaties presented to it, namely the 
Intermediate-Range Nuclear Forces (INF) Treaty, the Threshold 
Test Ban Treaty and Protocol, the Treaty on Conventional Armed 
Forces in Europe (CFE), the CFE Flank Agreement, the START I 
and START II Treaties, the Chemical Weapons Convention (CWC), 
and the Open Skies Treaty. Beginning with the INF Treaty, the 
Senate has added a condition concerning reinterpretation of the 
treaty and a declaration that future arms control agreements 
should be concluded as treaties. In addition, the Senate has 
sometimes specified in the resolutions of ratification its 
intention that certain conditions were to be transmitted to the 
other parties and that some were to be clearly approved by the 
other parties, or that some conditions were binding on the 
President and others declared the intention of the Senate.\38\ 
In 1999, the Senate also rejected a treaty when it voted 
against providing its advice and consent to the ratification of 
the Comprehensive Test Ban Treaty (CTBT).
---------------------------------------------------------------------------
    \37\ These included the Antarctic Treaty of December 1, 1959 (Ex. 
B, 86-2, approved August 10, 1960, by a vote of 66-21); the Outer Space 
Treaty of January 27, 1967 (Ex. D, 90-2, approved April 25, 1967, by a 
vote of 88-0); the Nuclear Non-Proliferation Treaty of July 1, 1968 
(Ex. H, 90-2, approved March 13, 1969, by a vote of 81-15); the Seabed 
Arms Control Treaty of February 11, 1971 (Ex. H, 92-1, approved 
February 15, 1972, by a vote of 83-17); the Anti-Ballistic Missile 
(ABM) Treaty (Ex. L, 92-2, approved August 3, 1972, by a vote of 83-
17); and the Environmental Modification Treaty of May 28, 1977 (Ex. K, 
95-1, approved November 28, 1979, by a vote of 98-0).
    \38\ For a more detailed discussion of Senate conditions, see 
Chapter VI.
---------------------------------------------------------------------------
INF Treaty
    The U.S.-Soviet Intermediate-Range Nuclear Forces (INF) 
Treaty, signed December 8, 1987, prohibited the two countries 
from producing, flight-testing, or possessing ground-launched 
ballistic or cruise missiles having a range between 500 and 
5,500 kilometers, and required the destruction or removal of 
some missiles and launchers.\39\ The Senate approved the INF 
Treaty on May 27, 1988, with three ``conditions,'' two 
``declarations,'' and three ``declarations and 
understandings.''
---------------------------------------------------------------------------
    \39\ Submitted to the Senate January 25, 1988, Treaty Doc. 100-11. 
Reported by the Foreign Relations Committee April 14, 1988, Exec. Rept. 
100-15. Approved by the Senate May 27, 1988, by a vote of 93-5.
---------------------------------------------------------------------------
    The primary condition related to the treatymaking power and 
the reinterpretation of treaties. This became an issue during 
consideration of the INF Treaty because of concern that the 
Reagan Administration was reinterpreting the 1972 Anti-
Ballistic Missile (ABM) Treaty to permit development and 
testing of the Strategic Defense Initiative.\40\ Many Senators 
believed that the executive branch could not alter the 
interpretation of a treaty without the advice and consent of 
the Senate and wanted to prevent similar reinterpretations in 
the future. Consequently, the Senate attached a condition, 
sponsored by Senators Byrd and Biden, stating that ``the United 
States shall interpret the Treaty in accordance with the common 
understanding of the Treaty shared by the President and the 
Senate at the time the Senate gave its advice and consent to 
ratification,'' and that the United States would not agree to a 
different interpretation except pursuant to Senate advice and 
consent or the enactment of a statute. It also spelled out the 
bases for the common understanding as (1) the text of the 
treaty and the resolution of ratification, and (2) the 
authoritative representations provided by the administration to 
the Senate in seeking its consent.\41\
---------------------------------------------------------------------------
    \40\ In 1993, the Clinton Administration made clear it had returned 
to the original interpretation. Letter of July 13, 1993, from Acting 
Director of the U.S. Arms Control and Disarmament Agency Thomas Graham, 
Jr., to Senator Pell.
    \41\ For text and discussion, see Chapter VI.
---------------------------------------------------------------------------
    A second condition made ratification subject to the 
President's obtaining the agreement of the Soviet Union that 
certain agreements on definitions and meanings of the treaty 
were of the same force and effect as the treaty. A third 
condition required the President, prior to exchanging 
instruments of ratifications, to certify that the United States 
and the Soviet Union had a specified common understanding 
concerning production of ground-launched ballistic missiles not 
covered by the treaty. The resolution of ratification also 
specified that one declaration and two understandings not 
relating to the subject matter of the treaty were to be 
communicated to the Soviet Union in connection with (and 
therefore not necessarily in) the exchange of ratifications: 
(1) the declaration that respect for human rights was an 
essential factor to ensure the development of friendly 
relations; (2) the understanding that the President should seek 
demonstrable progress by the Soviet Union in its implementation 
of certain documents concerning human rights; and (3) the 
understanding that the United States through the Helsinki 
process would expect full compliance with Soviet commitments in 
the field of human rights.
Threshold Test Ban Treaty and Protocol
    The United States and the Soviet Union signed the Threshold 
Test Ban Treaty in 1974 limiting underground nuclear tests to a 
yield of 150 kilotons.\42\
---------------------------------------------------------------------------
    \42\ Treaty between the United States of America and the Union of 
Soviet Socialist Republics on the Limitation of Underground Weapons 
Tests, signed July 3, 1974 (Treaty Doc. 94-2) and protocol signed July 
1, 1990 (Treaty Doc. 101-19).
---------------------------------------------------------------------------
    President Ford submitted it to the Senate together with the 
Peaceful Nuclear Explosions Treaty in 1976. The Senate Foreign 
Relations Committee ordered the treaties reported in 1977, but 
did not report them so that consideration of the Panama Canal 
treaties could proceed. The Carter Administration did not 
promote the two treaties because it was seeking a comprehensive 
ban of nuclear tests.
    In 1982 the Reagan Administration decided that additional 
verification provisions would be necessary before it would 
endorse the treaties, but the Soviet Union wanted negotiations 
on additional verification provisions to await ratification. In 
1987 President Reagan asked that the Senate consider the 
treaties, subject to the condition that he would not ratify 
them until the new verification protocols were negotiated and 
approved by the Senate. Some Senators objected to this dual 
ratification process. On February 27, 1987, the Foreign 
Relations Committee reported the treaties with a reservation 
that the President not ratify them until he certified that the 
Soviet Union had concluded specified additional agreements, and 
with a declaration supporting negotiations for a comprehensive 
test ban.\43\ The administration did not support the 
committee's recommendations and the Senate did not vote on the 
treaties at that time.
---------------------------------------------------------------------------
    \43\ Exec. Rept. 100-1.
---------------------------------------------------------------------------
    The United States and the Soviet Union signed the 
additional verification protocols on June 1, 1990; President 
Bush submitted them to the Senate on June 28, 1990. On 
September 14, 1990, the Foreign Relations Committee reported 
the Threshold Test Ban Treaty and Protocol subject to a 
declaration advocating five safeguards originally propounded by 
the Joint Chiefs of Staff but modified by the committee, and a 
declaration promoting continued efforts to achieve a verifiable 
comprehensive test ban.\44\
---------------------------------------------------------------------------
    \44\ Exec. Rept. 101-31.
---------------------------------------------------------------------------
    Future amendments to the agreements were an issue of 
concern during the committee's debate. In its report the 
Foreign Relations Committee reviewed concerns that Article XI 
of the protocol, which allows parties to amend the protocol 
through agreement in a Bilateral Consultative Commission, 
should not permit substantive changes without Senate approval. 
The committee obtained assurances from the Director of the Arms 
Control and Disarmament Agency that any substantive change that 
would affect the basic aims of the treaty would have to be made 
by means of an amendment, and that the executive branch would 
notify the committee on any changes prior to their becoming 
binding. The Senate approved both treaties and the new 
protocols on September 25, 1990.
CFE Treaty
    The Treaty on Conventional Armed Forces in Europe (CFE) was 
signed on November 19, 1990, by 16 members of NATO and 6 
members of the former Warsaw Pact including the Soviet 
Union.\45\ CFE established equal ceilings for each group of 
states in certain armaments categories and limited the forces 
of individual countries. The Senate approved the treaty on 
November 25, 1991, subject to six conditions and four 
declarations. The resolution of ratification explicitly stated 
that the conditions ``shall be binding upon the Executive'' and 
that the declarations ``express the intent of the Senate.''
---------------------------------------------------------------------------
    \45\ Treaty Doc. 102-8, submitted July 9, 1991. Reported November 
19, 1991, with five conditions, four declarations, Exec. Rept. 102-22. 
Approved by Senate, with amendments to resolution of ratification, 
November 25, 1991, by vote of 90-4.
---------------------------------------------------------------------------
    One of the conditions dealt with new states that might be 
formed from the Soviet Union. When the treaty was submitted to 
the Senate on July 9, 1991, the Soviet Union still existed. 
After a coup attempt against Soviet President Gorbachev in 
August 1991, the Soviet Union began to dissolve into a number 
of independent states. During its consideration of the treaty, 
the Senate found the situation rapidly changing and obligations 
of successor states of the Soviet Union became a major issue. 
The Senate added a condition to the resolution of ratification 
stating that if, in the future, a new state was formed in the 
area of application: (A) the President was to consult with the 
Senate on the effect on the treaty; (B) if the President 
determined that a new state's holdings were of such military 
significance as to constitute a changed circumstance and he 
decided not to invoke the withdrawal right, he was to request a 
conference to assess the viability of the treaty; and (C) if he 
made such a decision, he was to submit for the Senate's advice 
and consent any major change in the obligations. If the states 
in such a conference did not agree on a change in obligations, 
the President was to seek a Senate resolution of support for 
continued adherence. The Senate also added a declaration urging 
the President to seek the accession of any new state that might 
be formed in the area.
    In the CFE resolution of ratification, the Senate made two 
declarations dealing with the treatymaking power. One affirmed 
``the applicability to all treaties of the constitutionally 
based principles of the treaty interpretation set forth'' in 
the INF condition. Another declared the Senate intent to 
approve international agreements obligating the United States 
to reduce or limit the armed forces in a militarily significant 
manner only pursuant to the treaty power.
CFE Flank Agreement
    As the 1995 deadline for CFE reductions approached, it 
became evident that Russia would not meet the treaty's 
requirements. The outbreak of armed ethnic conflict in and 
around the Caucasus, most notably in Chechnya, led Russia to 
claim it needed to deploy equipment in excess of treaty limits 
in the ``flank zones.'' The parties to the CFE Treaty signed a 
flank agreement on May 31, 1996. This agreement removes several 
administrative districts from the old ``flank zone'' and, thus, 
permits the equipment ceilings for the flank zones to apply to 
a smaller area. To balance these adjustments, reporting 
requirements were enhanced, inspection rights in the zone 
increased, and district ceilings were placed on armored combat 
vehicles to prevent their concentration.
    The Clinton Administration initially did not plan to submit 
the flank agreement to the Senate for its advice and consent to 
ratification because it did not consider it to be an amendment 
to the treaty. However, after the Senate leadership pressured 
the administration and linked its submission to approval of the 
CWC, the administration submitted the CFE Flank Agreement to 
the Senate on April 7, 1997.\46\ The Foreign Relations 
Committee and the full Senate both approved the resolution of 
ratification by unanimous votes.\47\
---------------------------------------------------------------------------
    \46\ Treaty Doc. 105-5, submitted to the Senate April 7, 1997. 
Approved by the Senate May 14, 1997.
    \47\ Congressional Record, May 14, 1997. p. S4475.
---------------------------------------------------------------------------
    The resolution of ratification contains 14 conditions. Two 
of these conditions address monitoring and compliance issues; 
two state that any further modifications to the treaty or the 
geographical boundaries of the flank zones must be submitted to 
the Senate for advice and consent. Several of the conditions 
demonstrate the Senate's concerns regarding the continued 
stationing of Russian troops on the territories of other newly 
independent states and with the potential for political and 
economic coercion as a result of those troop deployments. As 
with other resolutions approved since 1987, this one also 
contains the Biden-Byrd condition on treaty interpretation, 
which was initially included in the resolution of ratification 
for the INF Treaty.
    The resolution of ratification for the CFE Flank Agreement 
contained one particularly contentious condition. In condition 
9, the Senate stated that the United States could not deposit 
the instruments of ratification for the CFE Flank Agreement 
until the President certified to the Senate that he would 
submit the Memorandum of Understanding on Succession (MOUS) to 
the 1972 ABM Treaty to the Senate for its advice and consent. 
This agreement named Russia, Ukraine, Belarus, and Kazakhstan 
as the successors to the Soviet Union for the ABM Treaty. The 
administration claimed that this agreement was not an amendment 
to the treaty, but many Senators disagreed, and some wanted to 
debate and defeat the MOUS as part of their effort to nullify 
the ABM Treaty. The administration and many Democratic Senators 
objected to condition 9, primarily because it was not germane 
to the CFE Flank Agreement, but they realized that they did not 
have the votes to remove it from the resolution of 
ratification.
START I Treaty
    The first treaty between the United States of America and 
the Soviet Union on the Reduction and Limitation of Strategic 
Offensive Arms (the START I Treaty) was signed by U.S. 
President Bush and Soviet President Mikhail Gorbachev on July 
31, 1991.\48\ Six months later, the Soviet Union disintegrated 
into a number of independent states. On May 23, 1992, the 
United States and Belarus, Kazakhstan, Russia, and Ukraine 
signed a protocol that named those four nations, each of which 
had Soviet nuclear weapons on its territory, as the successors 
to the Soviet Union for the START I Treaty. The three non-
Russian states also agreed to return the nuclear warheads on 
their territories to Russia. The President submitted the 
protocol to the Senate on June 19, 1992, as an amendment to and 
integral part of the START I Treaty. President Bush said the 
protocol would ensure that only one state emerging from the 
former Soviet Union would have nuclear weapons, and that all 
the former states of the Soviet Union that have nuclear weapons 
would be bound by the START I Treaty.
---------------------------------------------------------------------------
    \48\ Treaty Doc. 102-20, submitted to the Senate November 25, 1991. 
Protocol (Treaty Doc. 102-32) submitted June 19, 1992. Treaty Doc. 102-
20 reported September 18, 1992, with Treaty Doc. 102-32. Exec. Rept. 
102-53. Approved by Senate October 1, 1992.
---------------------------------------------------------------------------
    In the resolution of ratification, the Senate adopted eight 
conditions designated as binding upon the President. The 
conditions included that President Bush notify Belarus, 
Kazakhstan, and Ukraine that letters obligating them to 
eliminate all nuclear weapons and strategic offensive arms from 
their territory within 7 years would be legally binding. The 
President was also directed to communicate to the three states 
that the United States would regard as inconsistent with the 
START I Treaty any actions inconsistent with their obligations 
to adhere to the Non-Proliferation Treaty in the shortest 
possible time.
    Concerning implementation arrangements, the Senate made it 
a condition that failure to reach agreement would require the 
President to consult with the Senate. In the event Belarus, 
Kazakhstan, and Ukraine did not eliminate nuclear weapons and 
strategic offensive armaments in their territory within 7 
years, it was a condition that the President should consult 
with the Senate and submit any change in obligations for advice 
and consent of the Senate or, if the President decided not to 
invoke the withdrawal right, seek a Senate resolution of 
support. Another condition required the President to submit a 
report on compliance with specified arms control treaties 
within 180 days of advice and consent. A final condition, known 
as the Biden condition, required that the President ``seek an 
appropriate arrangement, including the use of reciprocal 
measures, to monitor (A) the numbers of nuclear stockpile 
weapons on the territory of the parties to this treaty and (B) 
the location and inventory of facilities on the territory of 
the parties to this treaty capable of producing or processing 
significant quantities of fissile materials.'' This condition 
reflected growing concern about the safety and security of 
former Soviet nuclear weapons and materials. The Senate Armed 
Services Committee, in its report on START I, objected to this 
condition, in part because it doubted the analysis supporting 
it and in part because it feared that efforts to negotiate such 
an arrangement could slow the negotiations on the new START II 
Treaty. The committee recommended that the Biden condition 
either be eliminated from the START I resolution of 
ratification, or that it be cast as a non-binding ``sense of 
the Senate'' recommendation.\49\ The Senate Foreign Relations 
Committee did not accept this recommendation. However, it 
indicated, in its report, that this requirement would not apply 
to the START II Treaty because such a requirement would likely 
delay negotiations.\50\
---------------------------------------------------------------------------
    \49\ United States Senate. Committee on Armed Services. Military 
Implications of the START I Treaty and the June 17, 1992 U.S.-Russian 
Joint Understanding on Further Reductions in Strategic Offensive Arms. 
Report 102-124. September 18, 1992. pp 10-14.
    \50\ Congressional Record. September 28, 1992, p. S15441.
---------------------------------------------------------------------------
    The resolution of ratification also included six 
declarations designated as expressing the intent of the Senate. 
Among these, one affirmed the applicability to all treaties of 
the condition on treaty interpretation in the INF Treaty. 
Another declared again the Senate position that it would 
consider for approval accords obligating the United States to 
reduce or limit its arms in a militarily significant manner 
``only pursuant to the treaty power set forth in Article II, 
Section 2, Clause 2 of the Constitution.''
START II
    The United States and Russia signed the second Strategic 
Arms Reduction Treaty (START II), on January 3, 1993. START II 
limits each of the parties to 3,500 warheads deployed on their 
strategic offensive nuclear weapons. It bans all land-based 
missiles with multiple warheads (MIRVed ICBMs) and limits the 
number of warheads that could be deployed on submarine-based 
ballistic missiles (SLBMs). In its original form, the two 
nations were to reduce their forces to the START II limits by 
January 1, 2003. However, in September 1997, the United States 
and Russia signed a protocol that would extend this timeline 
until the end of 2007.
    President Bush submitted the START II Treaty to the Senate 
on January 12, 1993.\51\ The Senate Foreign Relations Committee 
held hearings on the treaty in 1993, but did not report it to 
the Senate because the START I Treaty did not enter into force 
until December 1994. The committee held additional hearings in 
January, February, and March 1995, after the Republican Party 
gained a majority in the Senate. The committee delayed its vote 
on the resolution of ratification for most of 1995, while 
Senator Helms, the chairman, and the Clinton Administration 
sought to resolve a dispute over reorganization of the State 
Department. The committee approved the resolution of 
ratification, by a vote of 18-0 in December 1995 and the full 
Senate offered its advice and consent to ratification, by a 
vote of 87-4 on January 26, 1996. The resolution of 
ratification contains 8 conditions and 12 declarations.\52\
---------------------------------------------------------------------------
    \51\ Treaty Doc. 103-1, submitted to the Senate January 15, 1993. 
Reported by the Foreign Relations Committee December 15, 1995, Exec. 
Rept. 104-10. Approved by the Senate, January 26, 1996.
    \52\ Congressional Record. January 26, 1996. pp. S461-S463.
---------------------------------------------------------------------------
    By 1995, the debate over START II had become enmeshed in 
the debate over ballistic missile defenses and the ABM Treaty. 
This is evident in the resolution of ratification. The second 
condition states that U.S. ratification of the START II Treaty 
does not obligate the United States to accept any modification, 
change in scope, or extension of the ABM Treaty. Also, the 10th 
declaration discusses the nature of deterrence, noting that 
deterrence based on offensive retaliation has become outdated 
and that ballistic missile defense can contribute to a stable 
deterrent relationship. The conditions and declarations also 
address the Senate's concerns about compliance with START II 
and, in the eighth declaration, the resolution refers to the 
``clear past pattern of Soviet noncompliance with arms control 
agreements and continued cases of noncompliance by the Russian 
Federation * * *'' The resolution also displays the Senate's 
concerns about the Clinton Administration's stewardship of U.S. 
nuclear forces. The seventh condition states that the treaty is 
not binding on the United States until it enters into force and 
that the President must consult with the Senate if he wants to 
reduce U.S. forces below START II levels. The 12th declaration 
states that the United States is committed to maintaining its 
nuclear weapons infrastructure and that the United States 
reserves the right to resume nuclear testing to address warhead 
design flaws or aging problems. Finally, the resolution 
contains two declarations that have become standard in arms 
control--one affirmed the applicability to all treaties of the 
condition on treaty interpretation in the INF Treaty. Another 
declared again the Senate position that it would consider for 
approval accords obligating the United States to reduce or 
limit its arms in a militarily significant manner ``only 
pursuant to the treaty power set forth in Article II, Section 
2, Clause 2 of the Constitution.''
Open Skies Treaty
    The Treaty on Open Skies was signed in Helsinki on March 
24, 1992, by 25 nations originally including 16 members of 
NATO, 5 Eastern European members, and 4 former Soviet 
republics.\53\ Its purpose was to enhance military openness by 
providing each party the right to overfly the territory of 
other parties in unarmed observation aircraft. After hearings 
on the treaty and recommendations from the Senate Select 
Committee on Intelligence and Committee on Armed Services, the 
Foreign Relations Committee recommended advice and consent with 
two conditions to be binding on the President. First, if a 
party sought agreement within the Open Skies Consultative 
Commission for the introduction of additional categories or 
improvement of sensors, the President was to notify the Senate 
and not agree to the improvement until at least 30 days after 
the notification. Second, since the United States might not 
need many overflights because of its observation satellite 
capabilities, the President was to submit a report to the 
Senate, after the treaty had been in force 1 year, assessing 
the number of observation flights necessary. In addition, the 
committee recommended a declaration reaffirming the principles 
of treaty interpretation. The Senate gave its advice and 
consent to the treaty on August 6, 1993.\54\
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    \53\ Treaty Doc. 102-37, submitted to the Senate August 12, 1992. 
Reported by the Foreign Relations Committee August 2, 1993, Exec. Rept. 
103-5. Approved by Senate, August 6, 1993.
    \54\ Congressional Record, August 6, 1993, p. S10800 (daily ed.).
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Chemical Weapons Convention
    The Chemical Weapons Convention (CWC) opened for signature 
in January 1993.\55\ Since then, 170 nations have signed it and 
129 nations have ratified it. The convention entered into force 
on April 29, 1997. The CWC is designed to promote the global 
elimination of chemical weapons. It bans the development, 
production, transfer, stockpiling, and use of chemical and 
toxin weapons, mandates the destruction of all chemical weapons 
production facilities, and seeks to control the production and 
international transfer of the key chemical compounds of these 
weapons.
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    \55\ Treaty Doc. 103-21, submitted to the Senate on November 23, 
1993.
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    The Senate Foreign Relations, Armed Services, Intelligence, 
and Judiciary Committees held a total of 13 hearings on the CWC 
during the 103d, 104th, and 105th Congresses. Under a unanimous 
consent agreement, the CWC resolution of ratification was to 
have been brought to the Senate floor in mid-September 1996. 
However, uncertain of sufficient votes to ensure passage, its 
supporters postponed its consideration until after the 1996 
Presidential election. President Clinton vowed to press for CWC 
ratification in early 1997, but Senator Jesse Helms, chair of 
the Foreign Relations Committee, opposed the CWC and stated 
that it would not be a high priority for his committee. 
Furthermore, Senator Helms and the Senate's leadership sought 
assurances that other arms control agreements, such as the CFE 
Flank Agreement and the Agreed Statements on Demarcation to the 
ABM Treaty, would be brought before the Senate for its advice 
and consent. The administration objected to this linkage, but 
agreed to submit the agreements so that the Senate could 
address the CWC before it entered into force.
    After extensive negotiations between the White House and 
key Senators, and within the Senate itself, a unanimous consent 
agreement was reached to bring the CWC resolution of 
ratification to the Senate floor on April 23, 1997.\56\ The 
resolution contained 33 conditions, 5 of which were struck by 
roll call votes during floor debate. The 28 remaining 
conditions address a number of concerns raised during the 
debate over the CWC. These include the costs of treaty 
implementation and the U.S. financial contribution to the CWC's 
compliance organization, verification issues and the U.S. 
ability to detect and respond to noncompliance, and measures to 
manage the burden on U.S. industry as a result of CWC 
inspection and reporting requirements. The resolution of 
ratification also contains the two conditions that have become 
standard in arms control--the Biden-Byrd condition on treaty 
interpretation from the INF Treaty and the condition that 
reaffirms the Senate's role in