[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
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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\
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\1\ Prepared by Richard F. Grimmett, Specialist in National
Defense.
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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\
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\2\ See Chapters II and VI for references and additional
discussion.
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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\
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\3\ These include treaties on income taxation with Thailand, signed
March 1965, and Brazil, signed March 13, 1967.
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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.
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\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.
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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\
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\5\ See Chapter III for references and additional discussion.
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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\
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\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.
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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\
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\7\ See Chapter IV for references and additional discussion. See
also Chapter X.
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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\
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\8\ See Chapter IV for references and additional discussion. See
also Chapter X.
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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\
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\9\ See Chapter V for references and additional discussion.
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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\
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\10\ See Chapter VI for references and additional discussion.
Chapter VI also contains the text of Senate Rule XXX.
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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\
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\11\ See Chapter VII for references and additional discussion.
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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\
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\12\ See Chapter VIII for references and additional discussion.
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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.
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\13\ In addition to Chapter VIII, see Chapter X.
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(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.
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\14\ In addition to Chapter VIII, see Chapter VI, and discussion of
INF Treaty in Chapter XI.
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(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\
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\15\ See Chapter IX for references and additional discussion.
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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\
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\16\ See Chapter X for references and additional discussion.
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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\
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\17\ See Chapter VI and Chapter XI for references and additional
discussion.
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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\
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\18\ See section on Environmental Treaties in Chapter XI.
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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.
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\19\ See section on Amendment in Chapter IX.
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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\
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\20\ See Chapter XI for references and additional discussion.
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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.
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\21\ See Chapter IX for references and additional discussion.
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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\
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\22\ See Chapters VI, VIII, and IX for references and additional
discussion.
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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.
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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\
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\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.
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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\
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\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.
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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.
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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\
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\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.
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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\
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\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.
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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).
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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\
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\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.
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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\
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\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:
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\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.
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* * * 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\
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\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\
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\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).
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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\
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\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\
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\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.
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* * * [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\
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\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\
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\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.
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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.
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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.
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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:
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\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.
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* * * 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\
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\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:
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\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.
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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\
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\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\
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\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:
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\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.
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* * * [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\
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\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.
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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.
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\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).
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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\
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\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.
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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\
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\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.
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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.
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\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.
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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\
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\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\
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\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.
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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.
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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.
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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.
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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.
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* * * 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\
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\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.
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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.
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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.
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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.
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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.
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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\
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\36\ U.S. Congress. Senate. Executive Journal, vol. I, 1792, p.
115.
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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\
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\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.
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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.
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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\
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\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\
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\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\
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\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).
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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\
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\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.
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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\
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\51\ U.S. Congress. Senate. Committee on Foreign Relations. S.
Exec. Rept. 8, 81st Cong., 1st Sess. Report on North Atlantic Treaty,
p. 6.
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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\
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\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\
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\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.
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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.
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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.
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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.
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\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\
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\62\ Congressional Yellow Book, Winter 2000, pp. 10-11. (Published
by Leadership Directories, Inc., New York and Washington, D.C.)
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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\
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\65\ U.S. Congress. Senate. Committee on Foreign Relations.
Legislative Activities Report, 95th Cong., S. Rept. 96-47, p. 21.
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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\
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\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\
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\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.
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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\
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\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.
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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\
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\73\ S. Exec. Rept. 96-49, pp. 26-27.
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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\
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\74\ 14 Whiteman, p. 92.
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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\
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\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\
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\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'').
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----------
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.''
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\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.
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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\
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\5\ See Appendix 7, Simultaneous Consideration of Treaties and
Amending Protocols: Selected Precedents.
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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\:
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\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\
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\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.
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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.
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\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.).
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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\
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\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\
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\11\ Information may be found online at http://www.access.gpo.gov/
congress/doccat.html.
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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.
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\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.''
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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\
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\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.
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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\
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\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\
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\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).
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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.
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\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.
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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.
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\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.
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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\
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\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.
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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.''
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\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.).
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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\
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\25\ Treaty Doc. 100-20. See 136 Congressional Record, October 27,
1990, p. S17492 (daily ed.).
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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:
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\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.
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(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\
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\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\
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\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\
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\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\
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\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.).
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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\
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\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.
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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\
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\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).
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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:
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\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 im