[Senate Prints 106-71]
[From the U.S. Government Publishing 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\
---------------------------------------------------------------------------
\19\ See Appendix 8 for a list of all treaties to which the Senate
gave its advice and consent to ratification during the 100th-106th
Congresses. During this period, the chairmen of the committee have been
Claiborne Pell of Rhode Island (100th-103d Congresses) and Jesse Helms
of North Carolina (104th-106th Congresses).
---------------------------------------------------------------------------
C. Conditional Approval
The Foreign Relations Committee may recommend that the
Senate approve treaties conditionally, granting its advice and
consent only subject to certain stipulations that the President
must accept before proceeding to ratification.\20\ The
President, of course, also may propose, at the time of a
treaty's transmission to the Senate or during the Senate's
consideration of it, that the Senate attach certain conditions
or stipulations in the course of giving its advice and consent.
---------------------------------------------------------------------------
\20\ See American Law Institute, Restatement (Third) of the Foreign
Relations Law of the United States. American Law Institute Publishers,
1987, Vol. I, Sec. 314, pp. 186-189. During Senate consideration of
SALT II, the Foreign Relations Committee gave considerable attention to
the nature and legal effect of Senate conditions and discussed the
matter extensively in its report on the treaty. See S. Exec. Rept. 96-
14, 96th Cong., 1st Sess. (Nov. 19, 1979). An earlier discussion of
these issues with several useful illustrations appears in U.S.
Congress. Senate. The Role of the Senate in Treaty Ratification, A
Staff Memorandum to the Committee on Foreign Relations. Committee
Print. 95th Cong., 1st Sess., November 1977, pp. 3-13.
---------------------------------------------------------------------------
types of conditions
Conditions traditionally have been categorized as
amendments, reservations, understandings, declarations, and
provisos. Whatever they are called, however, conditions
generally are binding on the President, and the President
cannot proceed to ratify a treaty without giving them effect.
Because not all conditions necessarily affect the substance of
a treaty, not all are necessarily communicated to the other
party or parties to an agreement. But whatever name the Senate
gives to a condition, if the President considers that it alters
an international obligation under a treaty, he is expected to
transmit it to the other party or parties. The result may be
further negotiations or even abandonment of the treaty.
Both amendments and reservations are proposed revisions in
the obligations undertaken by the United States pursuant to a
treaty. Amendments are proposed changes in the actual text of
the treaty; reservations are specific qualifications or
stipulations that modify U.S. obligations without necessarily
changing treaty language.\21\ Both types of revisions amount,
therefore, to Senate counter offers that alter the original
deal agreed to by the United States and the other country or
countries involved. In the case of treaties that represent
significant trade-offs and compromises, such conditions
normally require the re-opening of negotiations, assuming the
other parties are willing to do so. In less delicate
circumstances, or on secondary issues, such conditions may be
accepted without extended delay, although that prospect is not
always easy to evaluate during Senate committee or floor
deliberations.
---------------------------------------------------------------------------
\21\ The Vienna Convention on the Law of Treaties, which the U.S.
has not ratified but which is viewed as codifying customary
international law in most respects, defines ``reservation'' as follows:
``[R]eservation'' means a unilateral statement, however phrased or
named, made by a State, when signing, ratifying, accepting, approving,
or acceding to a treaty, whereby it purports to exclude or to modify
the legal effect of certain provisions of the treaty in their
application to that State. Vienna Convention, Article 2.
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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.''
---------------------------------------------------------------------------
\23\ In the case of the 1976 Treaty of Friendship and Cooperation
with Spain, the State Department decided that it was inappropriate to
include the text of a lengthy Senate declaration in the instruments of
ratification, because the declaration related in part to the
encouragement of ``free institutions'' in a ``democratic Spain'' and
was certain to be offensive to Spain. The Department defended its
position on this point in a memorandum that appears in the 1976 Digest
of United States Practice in International Law. Eleanor C. McDowell
ed., State Department pub. 8908, November 1977, pp. 215-217. A number
of Senators protested however; and ultimately the declaration was
included as a separate ``annex'' to the U.S. instrument of
ratification.
\24\ See, for example, the resolution of ratification on the
``Inter-American Convention on Serving Criminal Sentences Abroad,'' 146
Congressional Record, October 18, 2000, p. S10658 (daily ed.).
---------------------------------------------------------------------------
Provisos often include conditions relating to the process
of implementing a treaty within the United States. Among the
conditions attached to the Senate's resolution of ratification
of the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, for example, was a proviso,
specifically not to be included in the instrument of
ratification, that the President of the United States would not
deposit the instrument of ratification until such time as he
had notified all parties that nothing in the convention
required or authorized legislation, or other action, by the
United States prohibited by the Constitution as interpreted by
the United States.\25\
---------------------------------------------------------------------------
\25\ Treaty Doc. 100-20. See 136 Congressional Record, October 27,
1990, p. S17492 (daily ed.).
---------------------------------------------------------------------------
The Senate Committee on Foreign Relations gave considerable
attention to the types of conditions added to treaties and to
their legal effect during its consideration of the SALT II
Treaty in 1979.\26\ The committee included a number of
declarations, understandings, and reservations in the
resolution of ratification it recommended to the Senate. But,
concerned that the traditional labels left some ambiguity
regarding the legal effect of the proposed conditions, it
grouped them into the following three categories:
---------------------------------------------------------------------------
\26\ The committee's concern had been stimulated in part by the
administration's refusal in 1976 to include a Senate declaration in the
instruments of ratification of a Treaty of Friendship and Cooperation
with Spain. See n. 22. In addition, during hearings on the SALT II
Treaty, former Yale Law School Dean Eugene V. Rostow had expressed the
view that reservations did not have the same legal effect as amendments
to the treaty itself. A reservation, he argued, ``has the same effect
as a letter from my mother.'' Testimony of Eugene Rostow, chairman,
Executive Committee, Committee on the Present Danger, before the Senate
Foreign Relations Committee, July 19, 1979, in the SALT II Treaty,
Hearings before the Committee on Foreign Relations, U.S. Senate, 96th
Cong., 1st Sess., Part 2, p. 393, and subsequently repeated on
September 6, 1979, Part 4, p. 13.
---------------------------------------------------------------------------
(I) conditions that did not need to be formally
communicated to, or accepted by, the Soviet Union;
(II) conditions that did need to be formally
communicated to, but not necessarily accepted by, the
Soviet Union; and
(III) conditions that required the explicit agreement
of the Soviet Union.\27\
---------------------------------------------------------------------------
\27\ U.S. Congress. Senate. Committee on Foreign Relations. SALT II
Treaty. S. Exec. Rept. 96-14, November 19, 1979.
In addition, the committee obtained the prior agreement of
the administration to this format. Secretary of State Cyrus
Vance gave assurances to the committee that
(1) all conditions would be deemed equally binding on
the President regardless of the category in which they
were placed;
(2) category II conditions would be conveyed to the
Soviet Union by formal diplomatic note prior to the
exchange of the instruments of ratification, thus
assuring that the Soviet Union understood the U.S.
position in advance of the treaty's entry into force,
yet not requiring explicit Soviet approval as in the
case of a condition conveyed in the instrument of
ratification; and
(3) the executive branch would follow a procedure for
securing Soviet agreement to the provisions in category
III that would leave no doubt as to the explicit
agreement of the Soviet Union. This would probably be
done, the Secretary said, by securing explicit Soviet
agreement in the ``Protocol of Exchange of Instruments
of Ratification'' that is signed by both parties.\28\
---------------------------------------------------------------------------
\28\ Id., at 29-32 (exchange of letters between the committee and
the Secretary of State).
Because of the Soviet Union's intervention in Afghanistan,
the Senate never voted on the SALT II Resolution of
Ratification. But it subsequently used these categories in its
Resolution of Ratification on the INF Treaty. As noted, these
categories, when used, have supplemented, not replaced, the
traditional typology.
The Committee on Foreign Relations re-emphasized its view
regarding conditions in its 1985 report on the Genocide
Convention, asserting that all conditions placed by the Senate
on its advice and consent were to be included in the instrument
of ratification unless the Senate expressly stated otherwise.
The report said:
Unless there is an express statement by the Senate to
the contrary, it is the Committee's firm view that all
conditions adopted by the Senate are to be included in
the instrument of ratification and therefore furnished
to all other parties to the treaty. Not only does the
Committee believe this to be the law, but it believes
it to be essential for practical reasons as well. The
Senate's conditions, together with the treaty and its
accompanying documents, describe in full the obligation
undertaken by the United States in ratifying the
treaty. To insure an identity of expectations by all
parties concerning the rights and obligations imposed
by the treaty, each party should be accorded formal
notice of the Senate's conditions. Notification by any
method other than inclusion in the instrument of
ratification simply increases the possibility of
misunderstanding.\29\
---------------------------------------------------------------------------
\29\ U.S. Congress. Senate. Committee on Foreign Relations.
Genocide Convention. S. Exec. Rept. 99-2, July 18, 1985. p. 15.
More recently, the committee has adopted the practice of
specifying which conditions are to be included in the
instrument of ratification and which should not be included. It
also has specified that particular declarations in its
resolutions of ratification are binding on the President.\30\
---------------------------------------------------------------------------
\30\ See, for example, the 33 resolutions of ratification to which
the Senate gave its advice and consent on October 18, 2000. 146
Congressional Record, October 18, 2000, pp. S10658-S10667 (daily ed.).
---------------------------------------------------------------------------
condition regarding treaty interpretation
In the mid-1980s a controversy erupted that has resulted in
the inclusion of a condition regarding treaty interpretation in
every resolution of ratification adopted by the Senate. In the
early 1980s the Reagan Administration initiated a ``Strategic
Defense Initiative'' (SDI) to develop new means, including
mobile- and space-based means, of protecting the United States
against missile attack. Critics immediately charged that SDI
would violate the 1972 Anti-Ballistic Missile (ABM) Treaty,
which barred the United States and the Soviet Union from
deploying ABM systems (except for one fixed site to protect
either the nation's capital or an offensive missile complex)
and from developing, testing, or deploying ``ABM systems which
are sea-based, air-based, space-based, or mobile land-based.''
The administration responded that a broader interpretation of
the treaty allowed the development and testing of ABM systems
based on different physical principles than those that existed
in 1972. It said that the text of the treaty was ``ambiguous''
in this respect, that the negotiating record of the treaty
supported the broader interpretation, that the subsequent
practice of the parties was consistent with the broader
interpretation, and that as a consequence the President was
justified in reinterpreting the treaty to more accurately
reflect what the negotiating record said it meant.\31\
---------------------------------------------------------------------------
\31\ For exposition of the administration's legal justifications,
see Sofaer, Abraham, ``The ABM Treaty and the Strategic Defense
Initiative,'' 99 Harvard Law Review 1972 (1986) and the testimonies of
Abraham Sofaer, Legal Adviser to the State Department, and Richard
Perle, Assistant Secretary of Defense for International Security
Policy, Joint Hearings on the ABM Treaty and the Constitution Before
the Senate Committee on Foreign Relations and the Senate Committee on
the Judiciary (1987), at 119-170 and 351-375.
---------------------------------------------------------------------------
Usually when the Foreign Relations Committee and the Senate
consider a treaty, they do not have access to the full
negotiating record, including all the instructions,
transcripts, correspondence, and other often voluminous
material relating to it. Instead, they rely on the testimony
and other formal communications from the executive branch to
ascertain a treaty's meaning. But in response to the
administration's claims regarding the ABM Treaty, the Senate,
at the initiative of Senators Nunn and Levin, sought and gained
access to the negotiating record of the ABM Treaty.\32\ The
Foreign Relations Committee and the Judiciary Committee held
extensive hearings \33\; and Senator Biden submitted, and the
Foreign Relations Committee reported, a resolution to constrain
the administration's ability to reinterpret the ABM Treaty.\34\
---------------------------------------------------------------------------
\32\ Under an access agreement concluded in February, 1988, the
State Department supplied the documents, and the Senate created an Arms
Control Treaty Review Support Office to house and provide a system for
using the documents. After extended study, Senator Nunn, in detailed
commentaries on the Senate floor, asserted that this record as well as
the Senate's ratification hearings and debates and the subsequent
practices of the parties belied the administration's claim. See 133
Congressional Record 5296-5302 (March 11, 1987), 5582-5587 (March 12,
1987), 5688-5690 (March 13, 1987), and 13143-13163 (May 20, 1987).
\33\ Joint Hearings on the ABM Treaty and the Constitution Before
the Senate Committee on Foreign Relations and the Senate Committee on
the Judiciary (1987).
\34\ S. Res. 167, 100th Cong., 1st Sess. (1987), the ``ABM Treaty
Interpretation Resolution,'' and S. Rept. 100-164, 100th Cong., 1st
Sess. (1987).
---------------------------------------------------------------------------
These actions served as precursors to a condition regarding
treaty interpretation that was added in 1988 to the resolution
of ratification on the INF Treaty.\35\ That condition
articulated what it said were the constitutional principles
that would govern the future interpretation of the treaty. The
Foreign Relations Committee explained:
---------------------------------------------------------------------------
\35\ Because of the administration's claims that the negotiating
record of the ABM Treaty gave a more accurate indication of its meaning
than administration testimony to the Senate, the Senate also sought and
gained access to the negotiating record of the INF Treaty. But in its
report on the INF Treaty, the Foreign Relations Committee took the
position that Senate review of negotiating records should not become an
institutionalized procedure, although reference to the record on a
case-by-case basis sometimes might be useful. In the committee's view,
``a systematic expectation of Senate perusal of every key treaty's
negotiating record'' might inhibit candor during future negotiations
and impose on the Senate ``a considerable task with no clear purpose.''
U.S. Congress. Senate. Committee on Foreign Relations. The INF Treaty.
Report. S. Exec. Rept. 100-15, 100th Cong., 2d Sess., April 14, 1988,
p. 100.
---------------------------------------------------------------------------
Both domestic and international law give primacy in
treaty interpretation to the text of the treaty.
International law requires that a treaty be interpreted
in accordance with the ordinary meaning to be given the
treaty's terms in light of their context and in light
of the treaty's object and purpose. Domestic law does
not differ, and is also premised on the assumption that
the Executive and the Senate, as co-makers of the
treaty for the United States, will share a common
understanding of a treaty's text. As a matter of
record, that common understanding of the text will be
reflected in the Executive's formal presentation of the
treaty to the Senate: in formal presentation documents,
in prepared testimony, and in verbal and written
intercourse regarding the treaty's meaning and
effect.\36\
---------------------------------------------------------------------------
\36\ Id., p. 97. See also the discussion of the Byrd-Biden
condition in Chapter VIII.
The ``Biden condition,'' as subsequently modified on the
Senate floor by amendments by Senators Byrd and Cohen and
approved by the Senate on May 26, 1988,\37\ became the first
condition to the INF Treaty and stated as follows:
---------------------------------------------------------------------------
\37\ The Senate approved the modified Byrd-Biden condition by a
vote of 72-27 and the resolution of ratification by a vote of 93-5. 134
Congressional Record 12655 (May 26, 1988) and 12849 (May 27, 1988),
respectively.
---------------------------------------------------------------------------
Provided that the Senate's advice and consent to
ratification of the INF Treaty is subject to the
condition, based on the treaty clauses of the
Constitution, that:
(1) the United States shall interpret the
Treaty in accordance with the common
understanding of the Treaty shared by the
President and the Senate at the time the Senate
gave advice and consent to ratification;
(2) such common understanding is based on:
(i) first, the text of the Treaty and
the provisions of this resolution of
ratification; and
(ii) second, the authoritative
representations that were provided by
the President, and his representatives
to the Senate and its Committees, in
seeking Senate consent to ratification,
insofar as such representations were
directed to the meaning and legal
effect of the text of the Treaty; and
(3) the United States shall not agree to or
adopt an interpretation different from that
common understanding except pursuant to Senate
advice and consent to a subsequent treaty or
protocol, or the enactment of a statute; and
(4) if, subsequent to ratification of the
Treaty, a question arises as to the
interpretation of a provision of the Treaty on
which no common understanding was reached in
accordance with paragraph (2), that provision
shall be interpreted in accordance with
applicable United States law.\38\
---------------------------------------------------------------------------
\38\ 134 Congressional Record 12849 (May 27, 1988).
President Reagan protested the inclusion of this condition in
the Senate's resolution of ratification but, nonetheless,
proceeded to complete the ratification of the INF Treaty.\39\
---------------------------------------------------------------------------
\39\ Id. 14261 (June 13, 1988) (Message from the President--
Comments with Respect to Senate Positions on the INF Treaty). It might
be noted that both the Bush and Clinton Administrations subsequently
expressed their acceptance of the principles stated in the Byrd-Biden
condition. See START Treaty, S. Hrg. 102-607, Pt. 1, pp. 506-507; Open
Skies Treaty, Exec. Rept. 103-5, p. 18.
---------------------------------------------------------------------------
In the following decade, the Senate incorporated the Byrd-
Biden condition to the INF Treaty by reference in its
resolutions of ratification on all of the major arms control
agreements: the CFE Treaty in 1991, START I in 1992, the Open
Skies Treaties in 1993, the START II Treaty in 1996, and the
Chemical Weapons Convention and the Flank Document Agreement to
the CFE Treaty in 1997.\40\ In each instance, however, it
broadened the condition by affirming its applicability not just
to the treaty under consideration, as it had with the INF
Treaty, but to all treaties.
---------------------------------------------------------------------------
\40\ CFE Treaty. Exec. Rept. 102-22, p. 81; START Treaty. Exec.
Rept. 102-53, pp. 96, 101-102; Open Skies Treaty, Exec. Rept. 103-5, p.
16; START II, Exec. Rept. 104-10, p. 46; Chemical Weapons Convention,
143 Congressional Record, April 24, 1997, p. S3656 (daily ed.); and
Flank Document Agreement, Exec. Rept. 105-1, pp. 22-24.
---------------------------------------------------------------------------
The Senate added another dimension to the Byrd-Biden
condition when it gave its advice and consent to the Flank
Document Agreement to the CFE Treaty in 1997. The Clinton
Administration had initially wanted to submit the Flank
Document to both the House and the Senate and to have it
approved by majority vote in both bodies as a congressionally-
authorized executive agreement. A legal memorandum from the
Justice Department had concluded that method of approving an
amendment to a treaty was lawful, and its argument was based in
part on subsection (1)(C) of the Byrd-Biden condition.\41\ The
Senate insisted on its prerogatives, however, and the
administration eventually submitted the Flank Document to the
Senate for its advice and consent. But to forestall any similar
construction of the Byrd-Biden condition in the future, the
Senate, upon the recommendation of the Foreign Relations
Committee, added the following language to the condition in its
resolution of ratification on the Flank Document:
---------------------------------------------------------------------------
\41\ Office of Legal Counsel, Department of Justice, ``Validity of
Congressional-Executive Agreements That Substantially Modify the United
States' Obligations Under an Existing Treaty'' (November 25, 1996). The
memorandum stated in part:
Finally, in its Resolution of Advice and Consent of 27 May 1988 to
the U.S.-U.S.S.R. Treaty on the Elimination of Their Intermediate-Range
and Shorter-Range Missiles (INF Treaty), the Senate adopted the ``Biden
condition,'' which provides that ``the United States shall interpret
the Treaty in accordance with the common understanding of the Treaty
shared by the President and the Senate at the time the Senate gave its
advice and consent to ratification,'' and that ``the United States
shall not agree to or adopt an interpretation different from that
common understanding except pursuant to Senate advice and consent to a
subsequent treaty or protocol, or the enactment of a statute.'' 134
Congressional Record 12,849 (1988) (emphasis added). The Senate
affirmed ``the applicability to all treaties of the constitutionally-
based principles'' in this condition. Resolution of Advice and Consent
of 25 November 1991 to the Treaty on Conventional Armed Forces in
Europe (CFE Treaty), 137 Congressional Record, November 23, 1991, pp.
S17,845, S17,846 (daily ed.), adopted id. at S18,038 (daily ed. Nov.
25, 1991). Because the Senate took the view that such ``common
understandings'' of a treaty had the same binding effect as express
provisions of the treaty for purposes of U.S. law, the Biden condition
logically supports the proposition that the President may be authorized
to accept changes in treaty obligations either by further Senate advice
and consent or by statutory enactment.
---------------------------------------------------------------------------
(8) Nothing in condition (1) of the resolution of
ratification of the INF Treaty, approved by the Senate
on May 27, 1988, shall be construed as authorizing the
President to obtain legislative approval for
modifications or amendments to treaties through
majority approval of both Houses.\42\
---------------------------------------------------------------------------
\42\ 143 Congressional Record, May 14, 1997, p. S4477 (daily ed.).
Subsequent to that dispute, the Senate has included the
Byrd-Biden condition, as modified, as a declaration not only in
its resolutions of ratification on arms control agreements but
also those on every other treaty it has considered, regardless
of its subject matter. The condition now is commonly worded as
follows:
DECLARATION.--The Senate's advice and consent is
subject to the following declaration, which shall be
binding upon the President:
TREATY INTERPRETATION.--The Senate affirms
the applicability to all treaties of the
constitutionally based principles of treaty
interpretation set forth in Condition (1) of
the resolution of ratification of the INF
Treaty, approved by the Senate on May 27, 1988,
and Condition (8) of the resolution of
ratification of the Document Agreed Among the
States Parties to the Treaty on Conventional
Armed Forces in Europe, approved by the Senate
on May 14, 1997.
condition regarding supremacy of the constitution
Since the beginning of the 105th Congress in 1997, the
Senate has routinely included a second condition as well in all
of its resolutions of ratification. That condition, commonly in
the form of a proviso, states as follows:
SUPREMACY OF THE CONSTITUTION.--Nothing in this
Treaty requires or authorizes legislation or other
action by the United States of America that is
prohibited by the Constitution of the United States as
interpreted by the United States.
This condition was first included in the Senate's resolution
of ratification on the Genocide Convention in 1986. In
subsequent Congresses the Senate gradually extended its use of
the condition, first to other human rights treaties and then to
treaties on narcotics, mutual legal assistance, and
extradition. In its current form, the proviso sometimes states
that it is ``binding on the President,'' and sometimes that it
is ``not [to] be included in the instrument of ratification to
be signed by the President.'' Sometimes the proviso includes
both phrases, and sometimes it includes neither.
Both the merits and the form of the condition have been
matters of controversy in the Senate. On May 21, 1985, the
Foreign Relations Committee approved the condition for the
first time, 9-8, as one of several conditions proposed by
Senators Helms and Lugar to the Genocide Convention.\43\ The
committee's report explained that the condition, at that time
in the form of a reservation to the convention, was desirable
as a matter of prudence because of ambiguities in some of the
provisions of the Genocide Convention. It noted that the
Supreme Court had held the Constitution to be supreme over
treaties as a matter of domestic law \44\; but, it said,
international law did not allow ``internal law'' to justify a
failure to perform the obligations imposed by a treaty. Thus,
the committee stated, ``[if] a conflict were to arise between
the requirements of the Constitution and those of the
Convention, the United States might be found to be in default
of its international obligation.'' \45\ Two ambiguities in the
convention were of particular concern, it said. First, it
stated, it was not clear whether the language directing parties
to enact legislation to implement the convention ``in
accordance with their respective Constitutions'' was solely
procedural or applied to the substance of the legislation as
well. Second, the committee report commented that there was a
possible conflict between the free speech clause of the first
amendment and the convention's requirement that ``direct and
public incitement to commit genocide'' be punished. The
committee concluded:
---------------------------------------------------------------------------
\43\ S. Exec. Rept. 99-2, 99th Cong., 1st Sess. (July 18, 1985), at
4.
\44\ Reid v. Covert, 354 U.S. 1 (1957).
\45\ S. Exec. Rept. 99-2, supra, at 20.
---------------------------------------------------------------------------
The Committee reservation may never be invoked.
Article V may be interpreted to apply to substance as
well as form. The other articles may never be construed
in a way inconsistent with the U.S. Constitution.
Nonetheless, the Committee believes that prudence, as
well as due regard for the obligations imposed by
international law, recommends the reservation.\46\
---------------------------------------------------------------------------
\46\ Id. at 21.
Eight Senators filed ``additional views'' criticizing the
inclusion of this reservation, however.\47\ First, they
asserted, ``36 years of detailed legal analysis'' of the
convention had produced no ``credible contention'' that it was,
or could be, in conflict with the Constitution. Second, they
noted that the Supreme Court had repeatedly held the
Constitution to be supreme over a treaty. Third, they said, it
created a lack of certitude about the intent of the United
States to fulfil its obligations under the convention and was
``disturbing to our allies who have undertaken an unqualified
acceptance of the treaty's obligations.'' Fourth, they stated
that the self-serving nature of the reservation suggested that
the United States ``was not ratifying the * * * Convention in
good faith.'' Fifth, they claimed, it invited other nations
``that can easily change their constitutions'' to adopt a
similar reservation and thus could create major problems in
enforcing the treaty's obligations. The eight Senators
concluded:
---------------------------------------------------------------------------
\47\ Id. at 28-31.
---------------------------------------------------------------------------
This reservation * * * will seriously compromise the
political and moral prestige the United States can
otherwise attain in the world community by unqualified
ratification of the Genocide Convention. It will hand
our adversaries a propaganda tool to use against the
United States and invite other nations to attach
similar self-judging reservations that could be used to
undermine treaty commitments.
Nonetheless, the reservation remained part of the resolution
of ratification as approved by the Senate, 83-11, on February
19, 1986.
In the 101st Congress the Senate attached the condition
not only to its resolution of ratification on another human
rights treaty but also to six mutual legal assistance treaties
(MLATs) as well as a narcotics convention. The merits of the
condition continued to be debated, but a consensus gradually
developed around its form.
Initially, the Committee on Foreign Relations rejected, by
votes of 2-15, Senator Helms' proposal to include a
constitutional supremacy condition as a reservation in the
resolutions of ratification on six mutual legal assistance
treaties.\48\ The committee majority and Senator Helms
articulated their conflicting views on the merits of the
condition in the committee's reports on the treaties.\49\ But
on the floor the Senate agreed to a compromise. The compromise
deleted the words ``as interpreted by the United States'' and
provided that the condition would be included in the
instruments of ratification on each treaty as an understanding
rather than as a reservation. This meant that the other parties
to the treaties would not have to expressly accept the
condition in their own ratification processes. As modified, the
Senate approved the condition by voice vote and then, after one
other modification, approved the resolutions of ratification on
the six treaties by votes of 99-0.\50\
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\48\ The treaties were with Great Britain (with respect to the
Cayman Islands), Mexico, Canada, Belgium, the Bahamas, and Thailand See
Treaty Docs. 100-8 (Aug. 4, 1987), 100-13 (Feb. 16, 1988), 100-14 (Feb.
22, 1988), 100-16 (March 29, 1988), 100-17 (April 13, 1988), 100-18
(April 25, 1988), respectively.
\49\ See S. Exec. Repts. 101-9, 101-10, 101-11, 101-12,101-13, and
101-8, respectively, all reported on July 31, 1989. (The committee also
had reported the treaties late in the second session of the 100th
Congress and had, similarly, rejected Senator Helms' proposal at that
time. See S. Exec. Rept. 100-26 (Sept. 30, 1988).) In each report the
majority asserted that the reservation was ``unnecessary'' both because
the Supreme Court had repeatedly held the Constitution to be supreme
over treaties and because none of the MLATs authorized or required
legislation or other action prohibited by the Constitution; that such a
reservation might lead some ``treaty partners'' to reject the treaties
or to insist on a reciprocal reservation that could ``limit the
usefulness of the treaty''; that it would invite defendants and targets
of investigation ``to interpose specious challenges to MLAT requests''
by claiming that their government's investigative methods did not
comport with our constitutional requirements; that a decade of
experience under several existing MLATs had not exposed any conflicts
with our Constitution; and that, unlike the Genocide Convention, the
MLATs addressed only procedural matters and not the substance of crimes
for which U.S. citizens might be tried. In ``Additional Views'' in each
report, Senator Helms argued in response that ``the essential reason
for such a proviso is the still unanswered question of whether the
Constitution supersedes a treaty or whether a treaty can be held to be
of equal force to the Constitution with respect to its provisions.''
Court decisions concerning the supremacy of the Constitution over
treaties, he contended, remained ambiguous and inconclusive. Senator
Helms also asserted that without the reservation the MLATS would allow
foreign governments, ``some of which are corrupt,'' to obtain evidence
on U.S. citizens in the U.S. without necessarily abiding by the
constitutional requirements that apply to U.S. investigations and ``to
seek U.S. evidence relating to persons in their own countries just to
see how much we know''; that the administration's arguments to the
contrary lacked cogency; and that the MLATs without the reservation
threatened ``a full scale assault against American liberties.''
\50\ 135 Congressional Record 25633 and 25637 (October 24, 1989).
---------------------------------------------------------------------------
In the following month, the Foreign Relations Committee
reported, and the Senate approved, a resolution of ratification
on the United Nations Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances.\51\ One article of
the convention obligated the parties to provide mutual legal
assistance with respect to certain narcotics offenses. Senator
Helms, as a consequence, proposed that the same understanding
be added as was added to the previously adopted MLATs. But his
proposal altered the form of the condition in one respect; it
specified that the understanding not be included in the
instruments of ratification on the convention. The committee
adopted his proposal, along with two other understandings \52\;
and the Senate approved the resolution of ratification on
November 21, 1989.\53\
---------------------------------------------------------------------------
\51\ Treaty Doc. 101-4 (May 20, 1989).
\52\ S. Exec. Rept. 101-15 (Nov. 14, 1989), pp. 10-11 and 115.
\53\ 135 Congressional Record 31383 (Nov. 21, 1989).
---------------------------------------------------------------------------
Finally, the Senate in the 101st Congress further modified
the form of the constitutional supremacy condition in its
resolution of ratification on the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or
Punishment.\54\ The condition was not formally offered during
the deliberations of the Senate Committee on Foreign Relations,
because the minority members were all absent. Nonetheless, the
committee report articulated the majority's objections to such
a condition, while the minority members vigorously protested
their exclusion from the committee's deliberations.\55\ Once
again, however, a compromise was developed that forestalled a
contentious floor debate. Although still objecting to the
condition as unnecessary, the Bush Administration, the chair of
the committee, Senator Pell, and Senator Helms agreed to add
four conditions to the resolution of ratification. In this
compromise the constitutional supremacy condition was stated to
be a ``proviso, which shall not be included in the instrument
of ratification to be deposited by the President'' but which
would be notified to the other parties. It was worded as
follows:
---------------------------------------------------------------------------
\54\ Tr. Doc. 100-20, 100th Cong., 2d Sess. (May 23, 1988).
\55\ S. Exec. Rept. 101-30, 101st Cong., 2d Sess. (Aug. 30, 1990),
pp. 4-5. Most of the majority's arguments reiterated the concerns that
had been expressed previously. But the report also asserted that the
inclusion of the condition in the instruments of ratification on the
Genocide Convention and the six MLATs had proven ``problematic.''
Twelve Western European nations, it said, had filed written objections
to the reservation on the Genocide Convention, and four of the six
states with which the MLATs had been negotiated, it stated, had
``voiced strong concerns about the proviso and/or have taken similar
reciprocal provisos.''
---------------------------------------------------------------------------
The President of the United States shall not deposit
the instrument of ratification until such time as he
has notified all present and prospective ratifying
parties to this Convention that nothing in this
Convention requires or authorizes legislation, or other
action, by the United States of America prohibited by
the Constitution of the United States as interpreted by
the United States.
During the floor debate Senator Pell observed that the
condition was not a reservation and, thus, neither altered the
obligations of the United States under the convention nor
allowed other parties to invoke it on a reciprocal basis as a
means of limiting their own obligations. Senator Helms, terming
the condition a ``sovereignty proviso,'' reiterated his concern
that ``other countries be put on notice that our Constitution
is the supreme law of the land, a law which can never be
invalidated or modified in any degree by an international
obligation.'' Although several other Senators expressed
objections to the proviso, the Senate approved the package of
conditions and the convention by division votes.\56\
---------------------------------------------------------------------------
\56\ 136 Congressional Record 36196 and 36198 (October 27, 1990).
---------------------------------------------------------------------------
In the 102d Congress the proviso gained its current form.
During the Senate Foreign Relations Committee's consideration
of another human rights treaty, the International Covenant on
Civil and Political Rights,\57\ Senator Helms proposed that the
constitutional supremacy condition be included as a proviso to
the resolution of ratification and that it state that it
``shall not be included in the instrument of ratification to be
deposited by the President.'' The committee adopted the
proposal by voice vote and explained the proviso in its report
as follows:
---------------------------------------------------------------------------
\57\ Ex. E, 95-2, 95th Cong., 2d Sess. (Feb. 23, 1978).
---------------------------------------------------------------------------
The substantive language of the proviso reflects the
Administration's position on the relationship between
treaties and the Constitution. Since this relationship
is a matter of domestic U.S. law, the proviso is not
included in the instrument of ratification. This
approach eliminates the potential for confusion at the
international level about the nature of the U.S.
ratification.\58\
---------------------------------------------------------------------------
\58\ Id. at 5.
The proviso elicited no comment in the brief Senate floor
debate, and the Senate approved the resolution of ratification
on the covenant by division vote on April 2, 1992.\59\
---------------------------------------------------------------------------
\59\ 138 Congressional Record 8071 (April 2, 1992).
---------------------------------------------------------------------------
At Senator Helms' initiative, the committee also approved
the addition of the same proviso to the resolutions of
ratification on four mutual legal assistance treaties during
the 102d Congress \60\; and the Senate, without comment on the
proviso, approved the resolutions.\61\ In the 103d Congress the
committee accepted the same proviso as part of the resolution
of ratification on another human rights treaty, the
International Convention on the Elimination of All Forms of
Racial Discrimination \62\; and the Senate, on June 24, 1994,
again concurred.\63\ In the 104th Congress, the Senate included
the proviso in its resolutions of ratification on six
additional MLATs \64\ and also extended its use by applying it
to seven resolutions relating to extradition treaties.\65\ With
party control of the Senate having changed, the proviso was
included in the resolutions of ratification recommended by the
Foreign Relations Committee without the necessity of amendment,
either in committee or on the floor. Neither the committee's
reports or the brief floor debates on either the MLATs or the
extradition treaties offered any novel comments on, or
objections to, the proviso.\66\
---------------------------------------------------------------------------
\60\ The MLATs were with Jamaica, Argentina, Uruguay, and Spain.
See Treaty Docs. 102-16 (Oct. 25, 1991), 102-18 (Oct. 31, 1991), 102-19
(Nov. 13, 1991), and 102-21 (Jan. 22, 1992), respectively. The
committee's reports on these MLATs stated, incorrectly, that the
proviso was ``identical to understandings approved by the Senate'' with
respect to the MLATs with the Bahamas, Belgium, Canada, and Mexico in
1989. See Exec. Repts. 102-32 (May 21, 1992), at 4; 102-33 (May 21,
1992), at 3-4; 102-34 (May 21, 1992), at 4; and 102-35 (May 21, 1992),
at 3-4.
\61\ 138 Congressional Record 17964-65 (July 2, 1992).
\62\ Exec. C, 95-2, 95th Cong., 2d Sess. (Feb. 23, 1978). In its
report the committee reiterated the comment it had made previously with
respect to the International Covenant on Civil and Political Rights:
``The substantive language of the proviso reflects the Administration's
position on the relationship between treaties and the U.S.
Constitution. Since this relationship is a matter of domestic U.S. law,
the proviso will not be included in the instrument of ratification. The
Committee agrees with the Administration that this approach eliminates
the potential for confusion at the international level about the nature
of the U.S. ratification.'' See S. Exec. Rept. 103-29, 103d Cong., 2d
Sess. (June 2, 1994), at 4.
\63\ 140 Congressional Record, June 24, 1994, p. S7634 (daily ed.).
\64\ The MLATs were with Panama, Austria, Hungary, the Philippines,
Great Britain, and Korea. See Treaty Docs. 102-15 (Oct. 24, 1991), 104-
21 (Sept. 7, 1995), 104-20 (Sept. 6, 1995), 104-18 (Sept. 5, 1995),
104-2 (July 30, 1996), and 104-22 (July 30, 1996), respectively.
\65\ The extradition treaties were with Malaysia, Bolivia, the
Philippines, Switzerland, Belgium (both a treaty and a supplemental
treaty), and Hungary. See Treaty Docs. 104-26 (May 17, 1996), 104-22
(Oct. 10, 1995), 104-16 (Sept. 5, 1995), 104-9 (June 12, 1995), 104-7
and 104-8 (July 12, 1995), and 104-5, respectively.
\66\ The reports on the MLATS were, respectively, for Panama, S.
Exec. Rept. 104-3 (May 5, 1995); for Austria, S. Exec. Rept. 104-24
(July 30, 1996); for Hungary, S. Exec. Rept. 104-25 (July 30, 1996);
for the Philippines, S. Exec. Rept. 104-26 (July 30, 1996); for Great
Britain, S. Exec. Rept. 104-23 (July 30, 1996) and for Korea, S. Exec.
Rept. 104-22 (July 30, 1996). The reports on the extradition treaties,
all of which were issued on July 30, 1996, were, for Malaysia, S. Exec.
Rept. 104-30; for Bolivia, S. Exec. Rept. 104-31; for the Philippines,
S. Exec. Rept. 104-29; for Switzerland, S. Exec. Rept. 104-32; for
Belgium, S. Exec. Rept. 104-28; and for Hungary, S. Exec. Rept. 104-27.
The Senate approved the Panama MLAT on May 16, 1995 (141 Congressional
Record S 6764) and the rest of the MLATs and all of the extradition
treaties as a package on August 2, 1996 (142 Congressional Record S
9661-62) by division votes, without substantive debate. With the
exception of the committee's report on the MLAT with Panama, the
reports all stated: ``Bilateral (MLATs/extradition treaties) rely on
relationships between sovereign countries with unique legal systems. In
as much as U.S. law is based on the Constitution, this treaty may not
require legislation prohibited by the Constitution.''
---------------------------------------------------------------------------
As noted above, since the beginning of the 105th Congress,
the committee and the Senate have included the condition as a
proviso in its resolutions of ratification on virtually all
treaties.\67\
---------------------------------------------------------------------------
\67\ The 105th and 106th Congresses approved a total of 104
treaties on such diverse subjects as mutual legal assistance,
extradition, child labor, taxes, copyright, airline liability, bribery,
trademarks, plant patents, maritime boundaries, migratory birds, arms
control, conservation, and adoption. The one treaty approved in the
106th Congress that did not include the proviso was the Convention on
Nuclear Safety. Treaty Doc. 104-6 (May 11, 1995); S. Exec. Rept. 105-1
(March 24, 1999); 145 Congressional Record, March 25, 1999, pp. S3573-
S3577 (daily ed.).
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D. Resolution of Ratification
When the committee reports a treaty to the Senate, it does
so with a proposed resolution of ratification. Proposed
conditions usually are incorporated as provisions of this
resolution. By contrast, any amendments to the text of the
treaty, which seldom are proposed, are reported as freestanding
proposals for the Senate to consider. Technically, neither the
committee nor the Senate actually amends the text of a treaty;
rather, the Senate identifies those amendments that would be
necessary to gain its favorable advice and consent. However,
the committee initially and the Senate subsequently can amend
the resolution of ratification. A hypothetical resolution of
ratification containing each type of condition described above
would take the following form:
Resolved (two-thirds of the Senators present
concurring therein), That the Senate advise and consent
to the ratification of [official treaty title], subject
to the following:
(1) reservation that * * *
(2) understanding that * * *
(3) declaration that * * *
and provided that:
(a) * * *
(b) * * *
The conditions included in the last clause are those referred
to as provisos.
E. Senate Floor Procedure
executive session
Once a treaty is reported from the Foreign Relations
Committee and placed on the Senate's Executive Calendar, it
must lie over for 1 calendar day before second reading and
Senate consideration, unless the Senate agrees by unanimous
consent to waive this requirement. The Majority Leader may
begin the process of consideration by making a motion to go
into executive session, as distinguished from legislative
session, to consider a particular treaty. This motion takes
precedence over most other motions; it is neither amendable nor
debatable, but it may be the subject of a roll call vote.
However, the most common procedure in recent years is for the
Majority Leader to obtain in advance a unanimous consent
agreement providing for the Senate to begin consideration of a
treaty in executive session at a particular day and time.
Until recently, the Senate's procedures encouraged it to
consider treaties and nominations in the order in which they
appeared on the Executive Calendar--that is, the order in which
they were reported from committee. The Senate would agree to a
motion that provided only that the Senate go into executive
session. Once in executive session, the Senate was required to
take up the first item on the Executive Calendar, whether it
was a treaty or a nomination, unless it decided otherwise by
unanimous consent or by motion. The motion to take up a treaty
out of its order on the Executive Calendar was debatable in
executive session, and therefore was subject to being
filibustered. This procedural hurdle to taking up items of
executive business out of their order on the calendar
occasionally had consequences for the fate of various
agreements. The Threshold Test Ban and Peaceful Nuclear
Explosions Treaties, for example, were ordered reported by the
Foreign Relations Committee in 1977 but then were recalled, in
part so as not to be placed on the Executive Calendar ahead of
the controversial Panama Canal Treaties.\68\ In the following
year, the Senate rejected an effort to reverse the order in
which the Senate would consider the two Canal Treaties
themselves.\69\
---------------------------------------------------------------------------
\68\ Confirmed in unpublished committee transcripts.
\69\ On February 22, 1978, by a vote of 67-30, the Senate rejected
a motion to reverse the order of consideration of the Canal Treaty and
the Neutrality Treaty.
---------------------------------------------------------------------------
Since that time, however, the Senate has established the
precedent that a non-debatable motion to go into executive
session can provide for the Senate to proceed directly to the
consideration of any particular item on the Executive Calendar.
This precedent enables the Senate to agree to a motion, most
likely made by the Majority Leader, to take up a specific
treaty that is on the Executive Calendar and that has satisfied
the layover requirement of Rule XXX.
non-controversial treaties
Once the Senate agrees to take up a treaty, its
consideration is governed by Senate Rule XXX. The Senate's
usual practice, however, has been to waive some of the
procedural requirements of this rule, including the second
reading of a treaty and consideration of amendments to the
treaty itself. Instead, the Senate proceeds directly to
consideration of the resolution of ratification as reported by
the Foreign Relations Committee. To this end, the Majority
Leader may ask and obtain unanimous consent that the treaty be
considered as having passed through all the parliamentary
stages up to and including presentation of the resolution of
ratification. Alternatively, there first may be some debate on
the treaty before the Presiding Officer proposes that the
Senate turn to the resolution of ratification. The procedure
followed may resemble the following:
The PRESIDING OFFICER. The Clerk will report the
treaty by title for the information of the Senate.
[After the Clerk reports the treaty by title, if no
one seeks recognition, or after the debate of the
treaty has been concluded, and if no one offers an
amendment, the Chair takes the initiative and makes the
following statement:]
The PRESIDING OFFICER. The treaty will be considered
as having passed through its various parliamentary
stages up to and including the presentation of the
resolution of ratification, which the Clerk will
report.
[After the Clerk reads the resolution, the Chair
should properly state:]
The PRESIDING OFFICER. Reservations to the resolution
of ratification are now in order. If there be no
reservations or understandings to be offered to the
resolution of ratification, the question is on the
adoption of the resolution of ratification.
[If the yeas and nays have been ordered, the Chair
states:]
The PRESIDING OFFICER. The yeas and nays have been
ordered on this question and the Clerk will call the
roll.
[After the roll call vote has been taken and the
Clerk gives the tabulation to the Presiding Officer,
the Chair states:]
The PRESIDING OFFICER. On this vote the yeas
are______; the nays are______. Two-thirds of the
Senators present (a quorum being present) having voted
in the affirmative, the resolution of ratification is
agreed to.
OR
On this vote the yeas are______; the nays are______.
Two-thirds of the Senators present (a quorum being
present) not having voted in the affirmative, the
resolution of ratification is not agreed to.
[After the Chair announces the results on the
resolution of ratification, the following action by
unanimous consent usually occurs:]
A SENATOR (usually the Majority Leader or someone
acting for him). Mr. President, I ask unanimous consent
that the President be immediately notified of the
Senate's consent (disapproval) to the resolution of
ratification.
The PRESIDING OFFICER. Without objection, it is so
ordered.\70\
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\70\ Riddick, Floyd M. and Alan S. Frumin. Riddick's Senate
Procedure. Sen. Doc. 101-28, 1992. pp. 1557-1558.
---------------------------------------------------------------------------
controversial treaties
The opponents of a treaty may object to setting aside the
procedures of Rule XXX by unanimous consent and proceeding
directly to consideration of the resolution of ratification. In
1978, for example, the late Senator James Allen, of Alabama,
refused to agree to abbreviating the Senate's procedures for
considering the Panama Canal Treaties. The procedures of Rule
XXX govern the Senate unless there is unanimous consent to
modify them or set them aside. Before 1986 these procedures
were more complicated than they are today because Rule XXX then
required that the Senate first consider treaties on the floor
``as in Committee of the Whole.'' \71\ In 1986, soon after
approval of the Genocide Convention, Rule XXX was amended to
eliminate this requirement.\72\
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\71\ The Committee of the Whole is a parliamentary device by which
the entire membership of a legislative body sits as a single committee
to consider a matter and then makes its recommendations to the body in
the same way that a standing committee would.
\72\ Rule XXX was amended as part of S. Res. 28, 99th Cong., 2d
Sess., February 27, 1986.
---------------------------------------------------------------------------
When the Senate begins considering a treaty under the
current Rule XXX procedure, the treaty is to be read for a
second time. This reading is to be in full and it can be waived
only by unanimous consent. The text of the treaty itself then
is open to amendment, although the first hours or days of
consideration may be devoted to speeches only, either by
informal arrangement or by a formal unanimous consent
agreement. If the Foreign Relations Committee has recommended
any amendments to the treaty, they are the first amendments to
be considered, and each committee amendment is subject to
second degree amendments while it is pending. Reservations,
understandings, and other such statements may not be offered to
the treaty, nor may they be offered to the resolution of
ratification while the treaty itself is before the Senate.
A motion to consider the treaty in secret (``with closed
doors'') may be made at any time by any Senator and requires
only a second. Once this motion is made and seconded, in
accordance with Senate Rule XXI, the Presiding Officer directs
the galleries to be cleared and the Senate continues its
business behind closed doors. ``A closed session, under Rule
XXI, can be invoked simply by a motion and a second, and the
question is not debatable. Once the Senate goes into closed
session, it may then determine whether it stays in closed
session * * *. When in closed session, a motion to return to
open session is in order and not debatable.'' \73\ On March 29,
1988, for example, the Senate went into closed session to
discuss issues raised by the INF Treaty on the day before it
was ordered reported by the Foreign Relations Committee.\74\
---------------------------------------------------------------------------
\73\ Riddick, Floyd M. and Alan S. Frumin, Riddick's Senate
Procedure. Sen. Doc. 101-28, 1992. pp. 278, 280.
\74\ Congressional Record, March 29, 1988, p. S3204 (daily ed.).
---------------------------------------------------------------------------
The INF Treaty is an example of a treaty considered under
the Rule XXX procedures since the rule was amended in 1986. In
considering that treaty, Majority Leader Robert Byrd, on May
17, 1988, secured unanimous consent that the second reading
proceed through the signatures of the parties, at which time
the Senate would dispense with the reading temporarily. After
debate, Senator Jesse Helms asked unanimous consent that
further reading of the attached protocols be suspended, subject
to the demand of any Senator that the reading of them be
resumed. Later, further reading was dispensed with.\75\ The
Senate then voted on and tabled (rejected) an amendment to the
treaty itself that was offered by Senator Steve Symms; other
proposed amendments to the treaty were tabled or withdrawn.
After the Senate proceeded to the consideration of the
resolution of ratification, it adopted various amendments to
the resolution as proposed by the Foreign Relations Committee,
and then agreed to the resolution, as amended, by the required
two-thirds majority.
---------------------------------------------------------------------------
\75\ Congressional Record, May 18, 1988, p. S6084 (daily ed.).
---------------------------------------------------------------------------
It is unusual today for Senators to propose amendments to
the text of a treaty. Instead, they typically formulate their
proposals in the form of conditions that they offer as
amendments to the resolution of ratification. Under Rule XXX,
after debate on the treaty itself, the next step is for the
Senate to consider this resolution. If the Senate has agreed to
any amendments to the text of the treaty, they are incorporated
in the resolution of ratification, not in the treaty itself.
The resolution states, in effect, that the Senate gives its
advice and consent to the ratification of the treaty on the
condition that the parties to the treaty accept the amendments
proposed by the Senate and listed in the resolution. Once the
resolution of ratification is laid before the Senate, no
further amendments to the text of the treaty may be proposed,
except by unanimous consent.
Under Rule XXX, the Senate is not to begin considering the
resolution of ratification on the same day it completes debate
on the treaty itself and disposes of any amendments to it,
unless the Senate by unanimous consent determines otherwise.
The resolution is prepared by the Executive Clerk and, when
presented to the Senate, includes any amendments to the text of
the treaty that the Senate has adopted as well as the texts of
any conditions recommended by the Committee on Foreign
Relations. As noted above, the committee now routinely proposes
at least two conditions, but at times it also has recommended
multiple conditions of different types. In March 1999, for
example, the committee reported protocols to the 1980
Conventional Weapons Convention with 1 reservation, 9
understandings, and 13 conditions. In July 2000, it reported
the Inter-American Convention on Sea Turtles with three
understandings, five declarations, and two provisos.
The conditions recommended by the Committee on Foreign
Relations are the first to be considered when the Senate takes
up the resolution of ratification. Each condition that the
committee has proposed is debatable and amendable. After the
Senate acts on the committee's recommended conditions,
individual Senators can propose their own conditions, which are
also debatable and amendable.
The resolution of ratification, like a bill the Senate
considers in legislative session, is subject to amendment in
two degrees. Each condition that the committee recommends or
that a Senator offers is a first degree amendment to the
resolution and is amendable in the second degree, subject to
the Senate's established precedents governing the amendment
process on the floor. It also is in order to offer an amendment
in the nature of a substitute that proposes to replace the
entire text of the resolution. Such a complete substitute can
propose that the Senate withhold its advice and consent. During
consideration of the resolution of ratification for the second
Panama Canal Treaty, for example, the Senate considered and
rejected a substitute proposing that the treaty be returned to
the President with the advice that negotiations be re-opened
with the Government of Panama. If the Senate had agreed to this
substitute, it would have nullified the proposed amendments to
the treaty to which the Senate already had agreed.
At any time that the resolution of ratification is before
the Senate, a motion to recommit the resolution to committee
may be offered. As with any motion to recommit, the motion may
be coupled with instructions to the committee, and those
instructions (such as instructions directing the committee to
hold additional hearings) are amendable.
If the Senate agrees to any conditions, they are attached
to the resolution following any proposed amendments, to which
the Senate had agreed earlier, to the text of the treaty. After
action on any proposed reservations, etc., the Senate finally
votes on a resolution of ratification that may contain both
amendments proposed to the treaty and amendments (in the form
of conditions) to the resolution itself. Approving the
resolution, as it may have been amended, requires a vote of at
least two-thirds of the Senators present and voting.
consideration of treaties under cloture
The cloture provisions of Senate Rule XXII can be applied
to the consideration of treaties. In the absence of cloture,
the treaty and its resolution of ratification, and amendments
to them, are debatable at length, and amendments need not be
germane. At any time during the Senate's consideration of a
treaty or resolution, a cloture motion may be filed. To be
successful, a cloture motion requires the affirmative votes of
at least ``three-fifths of the Senators duly chosen and
sworn.'' Cloture, if invoked, applies to floor action on both
the treaty and the resolution of ratification. The Senate does
not have to invoke cloture separately on the treaty and then on
the resolution.
If cloture is invoked, there is then a total of 30
additional hours permitted for consideration of the treaty and
the resolution of ratification, and all amendments to them. The
time consumed by votes and quorum calls as well as by debate in
connection with the treaty and the resolution all is included
within the 30-hour limitation. However, any time that the
Senate devotes to considering legislative business or other
executive business does not count against the 30 hours. During
these 30 hours for post-cloture consideration, each Senator is
limited to 1 hour of speaking time, except that any Senator who
has not spoken for, or yielded, at least 10 minutes during the
30-hour period is permitted up to 10 minutes for debate after
the 30 hours elapse. Under cloture, a germaneness rule
governing amendments is in effect, and no Senator may call up
more than two amendments until every other Senator has had an
opportunity to do likewise. After the 30 hours expire, Senators
may not offer additional amendments to either the treaty or the
resolution of ratification.
The Senate invoked cloture in 1992 during consideration of
START I and its related protocol. The Bush Administration
wanted to obtain the Senate's advice and consent before the
102d Congress adjourned in October of that year. Senate leaders
feared a filibuster by opponents, or at least a lengthy debate
that would delay other business and adjournment. On September
26, 1992, Senate Majority Leader George Mitchell submitted a
cloture motion that the Senate adopted on September 29 by a
vote of 87-6, putting the treaty under the 30-hour limitation
for post-cloture consideration.\76\
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\76\ Treaty Docs. 102-20 and 102-32. Congressional Record,
September 26, 1992, p. S15336 and September 29, 1992, p. S15504 (daily
ed.).
---------------------------------------------------------------------------
In some cases, filing cloture motions appears to have
expedited Senate consideration of treaties even though cloture
was not invoked on them. After a week of debate on the INF
Treaty, for example, Senate Majority Leader Robert Byrd
submitted a cloture motion on May 24, 1988, with a vote
scheduled for May 26. With debate on amendments moving
expeditiously, the vote was deferred on May 26, and on May 27
Senator Byrd received unanimous consent to set a schedule of
votes on pending amendments and to vitiate the cloture
motion.\77\
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\77\ Congressional Record, May 27, 1988, p. S12785 (daily ed.).
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final vote
The final vote on agreeing to the resolution of
ratification requires a two-thirds majority of those present
and voting for approval. Almost all other treaty-related
questions--amendments and procedural matters, for example--are
decided by simple majority votes. (The one exception is a
motion to postpone a treaty indefinitely, a rarely offered
motion, that also requires a two-thirds vote for approval.) The
Constitution does not require that any treaty-related votes be
decided by calling the roll. Nevertheless, the Senate
frequently conducts final treaty votes by roll call at times
convenient for most Senators, although it sometimes acts on
noncontroversial treaties by division votes instead. Increased
use of roll call votes developed as a result of adverse
publicity in the early 1950s when the Senate approved consular
conventions with Ireland and the United Kingdom with only two
Senators present.\78\
---------------------------------------------------------------------------
\78\ See the account of this incident in Carl Marcy, A Note on
Treaty Ratification. American Political Science Review 47:4, December
1953, p. 1130.
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In recent years, with the proliferation of roll call votes
and the increasing number of treaties concluded by the United
States, the Senate frequently has approved two or more treaties
en bloc, with a single roll call vote covering all of them. As
noted, on occasion it also has used the alternative procedure
of approving treaties by division vote. In those instances the
Presiding Officer asks the Senators present to indicate their
position by standing to be counted, and then announces his
conclusion that at least two-thirds of those present have voted
in favor of the resolution of ratification. On October 18,
2000, for instance, the Senate approved 33 treaties on diverse
subjects by division votes.\79\
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\79\ Congressional Record, October 18, 2000, pp. S10658-S10667
(daily ed.).
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When time pressures are severe and the treaties to be
considered are non-controversial, the Senate may agree, by
unanimous consent, to consider multiple treaties en bloc and to
dispense with all the Senate's regular procedures for
considering them. On October 21, 1998, for example, during the
closing minutes of the 105th Congress, the Senate cast 1
division vote by which it gave its advice and consent to the
ratification of 30 treaties. The Senate acted under the terms
of the following unanimous consent agreement propounded by
Senator DeWine on behalf of the Majority Leader:
Mr. DE WINE. Mr. President, on behalf of the Majority
Leader of the Senate, I ask unanimous consent that the
Senate proceed to executive session to consider the
following treaties on today's Executive Calendar:
Numbers 24 through 54.
The PRESIDING OFFICER. Without objection, it is so
ordered.
Mr. DE WINE. Mr. President, I further ask unanimous
consent that the treaties be considered as having
passed through their various parliamentary stages up to
and including the presentation of the resolution of
ratification, that all committee provisos,
reservations, understandings, and declarations be
considered agreed to.
I further ask unanimous consent that two technical
amendments that are at the desk to treaty documents
105-34 and 104-40 be considered as agreed to, that any
statements be inserted in the Congressional Record as
if read.
I further ask that there be one vote to count as
individual votes on each of the treaties, and further,
when the resolutions of ratification are voted upon,
the motions to reconsider be laid upon the table, that
the President then be notified of the Senate's action,
and following the disposition of the treaties, the
Senate return to legislative session.
The PRESIDING OFFICER. Without objection, it is so
ordered.\80\
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\80\ Congressional Record, October 21, 1998, pp. S12972-S12973
(daily ed.).
Once approved, the treaty, with the resolution of
ratification as agreed to by the Senate and signed by the
Secretary of the Senate, is transmitted by the Senate's
Executive Clerk to the White House. The White House then sends
it to the Department of State where the instruments of
ratification are prepared for the President's signature. Once a
resolution of ratification has been transmitted to the White
House, the Senate is unable to reconsider its actions with
respect to the treaty unless the President should consent or
desire to resubmit the treaty for that purpose.\81\
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\81\ Resolutions of ratification, like bills, are subject to
motions to reconsider. If the Senate votes to reconsider the vote by
which it agreed to a resolution of ratification, there could be another
vote on the same question in the same Congress. However, the Senate
cannot reconsider its vote on any matter unless it still has custody of
it.
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failure to receive two-thirds majority
If a treaty fails to receive the two-thirds vote necessary
for Senate advice and consent, the Executive Clerk normally
prepares a resolution for Senate approval reporting that fact
to the President. Unless the Senate acts affirmatively by
resolution to return a rejected treaty to the President,
however, that treaty is returned to the Senate's Executive
Calendar. Then, in accordance with paragraph 2 of Rule XXX, it
automatically is referred back to the Foreign Relations
Committee at the conclusion of the Congress.
The last time that the Senate rejected a treaty and
returned it to the President was in 2000. The Montreal Protocol
No. 3 would have modified the liability limits of the Warsaw
Convention for personal injury and death resulting from airline
accidents. Only four other treaties were defeated and returned
in the 20th century, the Versailles Peace Treaty of 1919 being
the most significant of these.\82\
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\82\ U.S. Congress. Senate Committee on Foreign Relations.
Background Information on the Committee on Foreign Relations, United
States Senate (5th revised edition, June 9, 1982), Document No. 97-30,
97th Cong., 2d Sess., p. 11.
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The Senate has considered some treaties without casting
final votes on giving its advice and consent to their
ratification. In such cases, the treaties ultimately are
returned to the Committee on Foreign Relations where they can
remain indefinitely on the committee's calendar. In 1972, for
instance, the Senate debated an international convention on
civil liability for oil pollution damage. However, the Senate
did not reach a final vote on the convention, so it was
returned to the committee at the end of the Congress.
Similarly, in 1980, the committee reported and the Senate
debated, but did not vote on, separate maritime boundary
agreements with Mexico and Cuba. At the final adjournment of
the Congress later that year, both agreements were returned to
the committee. The committee took no further action on the
agreement with Cuba. In 1997, however, the committee again
reported, and the Senate gave its approval to, the agreement
with Mexico.
Some treaties have been voted on and failed to receive the
required two-thirds majority, but then were returned to the
Foreign Relations Committee, leaving open the possibility that
the committee and the Senate could vote on them again. In some
cases, no further action has been taken. The Optional Dispute
Settlement Protocol to the Geneva Law of the Sea Treaties
failed on May 26, 1960. At the end of the Congress, the
protocol was re-referred to the committee and placed on its
calendar. (Ex. N, 86-1), where it remained for more than 40
years.\83\
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\83\ A summary of Senate action on this issue appears in Comment,
Laws and Contemporary Problems 46:2, p. 19.
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In other cases, further action did take place. On March 8,
1983, Ex. B, 95-1, Two Related Protocols to the Warsaw
Convention on Airline Liability, Concluded at Montreal, failed
to receive the necessary two-thirds vote and were returned to
the Foreign Relations Committee calendar. The committee
reported both protocols again in 1990 and then once again in
1991; but the Senate took no action. In 1998, because of
intervening actions resulting in the acceptance by the airline
industry of higher liability limits for personal injury and
death, the committee reported Montreal Protocol No. 4 favorably
but recommended that Montreal Protocol No. 3 be returned to the
President. Protocol No. 4 concerned liability limits for
baggage and cargo and had never been particularly
controversial; it had failed of adoption because it was linked
with Protocol No. 3, which concerned the controversial issue of
liability for personal injury and death. Once the political
situation permitted the two protocols to be separated, Montreal
Protocol No. 4 was readily approved by the Senate and Protocol
No. 3 was returned to the President.\84\
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\84\ Ex. B, 95-1, submitted January 14, 1977. Exec. Rept. 97-45,
December 16, 1981. Exec. Rept. 98-1, February 10, 1983; Congressional
Record, March 8, 1983, p. S2279 (daily ed.); Exec. Rept. 101-21, June
28, 1990; Exec. Rept. 102-1, February 5, 1991; Congressional Record,
June 28, 1991, p. S9216 (daily ed.); August 1, 1991, p. S11711;
November 5, 1991, p. S15875; Exec. Rept. 105-20, August 25, 1998;
Congressional Record, September 28, 1998, p. S11059 (daily ed.).
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In at least one instance, the Senate has approved a treaty
after rejecting it and then agreeing to a motion to reconsider
that decision. By a vote of 49-32, the Senate rejected a tax
convention with the United Kingdom on June 23, 1978. The Senate
then agreed to reconsider that vote and, 4 days later, approved
the convention by a vote of 82-5.\85\
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\85\ Ex. K, 94-2; Ex. Q, 94-2; Ex. J, 95-1.
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F. Return or Withdrawal
More often than being disapproved by Senate vote, treaties
lacking adequate support simply are not reported by the Foreign
Relations Committee or, if reported, are never voted on by the
Senate. These treaties may remain pending on the calendar of
the committee or they may be returned to the President.
The normal practice for returning treaties has been for
the committee to report out, and for the Senate to adopt, a
Senate resolution directing the Secretary of the Senate to
return a particular treaty or treaties to the President. This
procedure was used several times in 1981: once to return a
pending fishing treaty with Canada that lacked Senate support,
and on two other occasions to return obsolete tax treaties.\86\
In 1991, the Senate adopted a resolution to return 1979 and
1983 Amendments to the 1966 International Convention on Load
Lines.\87\ President Bush had requested the return of the
amendments when he submitted the 1988 Protocols Relating to the
Safety of Life at Sea Convention and the Load Lines Convention,
which replaced the earlier amendments.\88\ Most recently, the
Foreign Relations Committee reported S. Res. 267 on March 9,
2000, proposing that the Secretary of the Senate be directed to
return to the President a total of 18 treaties, including the
Law of the Sea Protocol, mentioned earlier, that the Senate had
received in September 1959, more than 40 years earlier.\89\ On
October 12, 2000, after deleting one treaty from the list, the
Senate approved the resolution.\90\
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\86\ The vehicle for returning these treaties was an executive
resolution. Now, however, regular Senate resolutions are employed for
this purpose.
\87\ S. Exec. Res. 104, reported April 23, 1991, and agreed to June
11, 1991. The amendments withdrawn were Treaty Docs. 97-14 and 100-12.
\88\ Treaty Doc. 102-2, submitted March 19, 1991.
\89\ Congressional Record, March 9, 2000, pp. S1423-S1424 (daily
ed.).
\90\ Id., October 12, 2000, p. S10499 (daily ed.).
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The initiative for returning a treaty may come from the
Foreign Relations Committee itself or the Senate leadership, or
it may take the form of a request from the President.\91\ The
President does not have the formal authority to withdraw a
treaty from Senate consideration without the Senate's
concurrence. In practice, however, a President can render any
pending treaty effectively moot, at least for the duration of
his time in office, simply by declaring his unwillingness to
ratify it, regardless of whatever action the Senate might take.
The decision to return one or more treaties usually reflects a
mutual agreement between the Senate and the President, and
often is primarily a housecleaning decision to remove obsolete
or superseded treaties from the committee calendar. As
discussed earlier, the Senate also can approve a resolution,
without prior action on it by the Foreign Relations Committee,
in order to return to the President a treaty that failed to
obtain the necessary two-thirds vote of approval.
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\91\ A Presidential message asking for the return of a treaty is
transmitted by the Senate Parliamentarian to the Executive Clerk, who
delivers it to the Foreign Relations Committee.
VII. PRESIDENTIAL OPTIONS ON TREATIES AFTER SENATE ACTION \1\
---------------------------------------------------------------------------
\1\ Prepared by Raphael F. Perl, Specialist in International
Affairs.
---------------------------------------------------------------------------
----------
When a treaty to which the Senate has advised and consented
in either qualified or unqualified form is returned to the
President, a number of procedural options are available to
him.\2\ He may ratify the treaty; resubmit the treaty for
further consideration at a later date; or simply decide not to
ratify the treaty.\3\ If he resubmits the treaty, he may do so
in its original form, or he may do so in a form which has been
modified as a result of further negotiations. If he decides not
to ratify the treaty, he may so indicate in a formal
announcement, or he may do nothing. The President may also
request withdrawal of a treaty from Senate consideration.\4\
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\2\ In some instances the Senate has also rejected a treaty. See
Collier, E., U.S. Senate Rejection of Treaties, a Brief Survey of Past
Instances. March 30, 1987, Congressional Research Service Report 87-
305F. The Comprehensive Nuclear Test-Ban Treaty is the most recent
example. Senate Treaty Doc. 105-28.
\3\ See Whiteman, M., Digest of International Law, Washington,
D.C., U.S. Government Printing Office, 1970, v. 14, p. 61 and Crandall,
Treaties, Their Making and Enforcement, pp. 98-101. (2d ed. 1916).
\4\ Presidential withdrawal of a treaty while that treaty is under
consideration by the Senate is discussed in Chapter VI.
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This chapter discusses the options available to the
President when a treaty is returned to him together with the
Senate's resolution of advice and consent to ratification. It
also briefly examines options available to the President if
other nations (after Senate consideration) subsequently attach
conditions to a treaty which may affect its meaning.
A. Ratification
ratification of the treaty
When the Senate gives its advice on and consent to a treaty
and returns the treaty to the White House, the President is
then free to ratify the treaty if he so chooses. Ratification
is a formal act on the instrumental plane expressing the
consent of a state to be bound by a treaty.\5\ There is no
legal obligation for a nation to ratify a treaty signed on its
behalf.\6\
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\5\ cf. Whiteman, M., Digest of International Law, v. 14, pp. 45-
48.
\6\ Ibid., p. 50.
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A nation generally confirms its willingness to be bound in
a formal document. Such documents are generally referred to as
instruments of ratification. However, when the treaty so
provides, they may take the form of instruments of acceptance,
instruments of approval, or instruments of accession.\7\
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\7\ Vienna Convention on the Law of Treaties, S. Exec. Doc. L,
Article 16. S. Exec. Doc. L, 92d Cong., 1st Sess. (1971). See Appendix
5 (hereafter cited as Vienna Convention).
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A treaty may specifically provide that it is to be ratified
by the President by and with the advice and consent of the
Senate.\8\ However, this full formulation is not required. A
treaty may provide language, in more general terms, to the
effect that ``consent * * * shall be expressed by means of
ratification,'' or that it is signed ``subject to
ratification,'' or ``subject to ratification by signatory
States in accordance with their respective constitutional
procedures.'' \9\ The more neutral language is usually used to
indicate that a treaty is not binding.
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\8\ Treaty of Amity, Commerce, and Navigation. (Jay Treaty with
Great Britain) signed November 19, 1794. TS105; 12 Bevans 13.
Ratification advised by the Senate with amendment, June 24, 1795.
\9\ Article 14 of the Vienna Convention discusses consent to be
bound expressed by ratification, but does not address the issue of
whether ratification is required if an agreement is silent on this
topic. Modern treaties generally do not fail to address this matter.
See Restatement (Third) of the Foreign Relations Law of the United
States, sec. 312, Reporters' Note 2.
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Ratification itself is a national act.\10\ In order for a
nation to be bound internationally, treaties generally require
international action such as the exchange or deposit of
instruments of ratification.\11\ It is this international
exchange or deposit of instruments of ratification which is
ordinarily associated with the entry into force of a
treaty.\12\ Bilateral treaties commonly specify entry into
force upon exchange of instruments of ratification, or a
certain time after such an exchange; multilateral treaties
sometimes require that a certain number of instruments of
ratification be deposited in order for the treaty to enter into
force, either upon deposit of the requisite number or a certain
time thereafter.
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\10\ Whiteman, Digest of International Law, v. 14, p. 62.
\11\ Article 2 of the Vienna Convention defines ``ratification,''
``acceptance,'' ``approval,'' and ``accession'' as ``international acts
whereby a state establishes on the international plane its consent to
be bound by a treaty.''
\12\ Whiteman, Digest of International Law, v. 14, p. 62.
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As ratification is a national process, it is determined by
domestic procedures and requirements that differ between
nations. For example, one state's law may require approval by
the national legislature as a step in the ratification process
while another's may not.\13\ In U.S. practice, after the Senate
gives its advice and consent to ratification of a treaty, the
Secretary of the Senate attests to the resolution of advice and
consent, and transmits it together with the treaty to the White
House for transmittal to the Secretary of State. The Secretary
then prepares an instrument of ratification for the President's
signature.\14\
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\13\ In the case of a bilateral executive agreement between the
United States and another country, the law of the other country might
require ratification there even though U.S. procedure might not include
ratification in such a case.
\14\ Whiteman, Digest of International Law, v. 14, pp. 46-47.
---------------------------------------------------------------------------
The instrument of ratification includes the title of the
treaty and the date of signature. It also contains a summary of
action taken by the Senate together with conditions or
amendments proposed by the Senate.\15\ The instrument will
include a recitation of any reservations by the Senate, and may
also include understandings or declarations contained in the
Senate's resolution of advice and consent. Sometimes the Senate
specifies or the Department of State determines that a proviso
or statement need not be included in the instrument of
ratification, particularly if its substance relates only to
domestic affairs. The instrument of ratification is normally
prepared in duplicate: one original is deposited or exchanged,
the other is stored for the archival record along with the
original treaty or, in the case of a multilateral treaty, a
certified copy provided by the depositary.
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\15\ The President may also include in the instrument a statement
or understanding which reflects the Senate's understanding of a treaty,
even if the Senate did not choose to reduce its interpretation to a
formal reservation or understanding. In such instances the record would
reflect that the Senate attached a particular meaning to the treaty.
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Once prepared, the instrument of ratification, in
duplicate, is sent to the President for signature. The
President signs both duplicates of the instrument and returns
both to the Secretary of State who, in attestation of the
President's ratification, countersigns them and affixes to them
the official Seal of the United States. At this point,
ratification is complete on the national level and the
instrument of ratification is ready for international exchange
or deposit.\16\
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\16\ U.S. Department of State, Digest of United States Practice in
International Law, 1974, p. 217. For an example of an instrument of
ratification, see Appendix 9.
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exchange or deposit of instruments of ratification (entry into force)
Treaties generally require the parties to take
international action before an agreement formally enters into
force. Thus, once a President has ratified a treaty, he would
normally direct that the United States take the action
necessary to effect the treaty's entry into force. In the case
of bilateral treaties this action most often involves an
exchange of instruments of ratification. Hence, a bilateral
treaty usually enters into force upon such exchange or at a
time after such an exchange, as provided in the treaty. In the
case of multilateral treaties, such agreements generally enter
into force after the deposit of a specified number of
instruments of ratification at a specified location. Exchange
or deposit, therefore, has been characterized as ``the key to
entry into force.'' \17\
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\17\ Whiteman, Digest of International Law, v. 14, p. 62, and
Digest of United States Practice in International Law, 1976, p. 217. A
detailed examination of exchange procedures may be found in Volume 11
of the Department of State's Foreign-Affairs Manual [Circular 175] at
secs. 734 and 746, text reproduced in Appendix 4. International
exchange or deposit of instruments of ratification is not always
necessary in order for an international agreement to enter into force.
For example, an executive agreement may provide that it comes into
effect upon signature, or that its entry into force is dependent on a
specified event.
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In the case of the Chemical Weapons Convention (CWC), for
example, the Senate's resolution of advice and consent required
the President to issue a certification before the U.S.
instrument of ratification could be deposited.
The Panama Canal Treaty \18\ and the Vienna Convention on
the Law of Treaties \19\ are illustrative of requirements for
expressing consent to be bound to bilateral and multilateral
treaties, respectively. The Panama Canal Treaty provided that:
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\18\ Panama Canal Treaty Between the United States of America and
Panama, signed at Washington, September 7, 1977, TIAS 10030, Article
II, Sec. 1. The treaty terminated by its terms December 31, 1999.
\19\ Articles 82-84.
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This Treaty shall be subject to ratification in
accordance with the constitutional procedures of the
two Parties. The instruments of ratification of this
Treaty shall be exchanged at Panama * * * \20\
---------------------------------------------------------------------------
\20\ Article II, Sec. 1.
Similarly, the Vienna Convention on the Law of Treaties
reads:
1. The present Convention shall enter into force on
the thirtieth day following the date of deposit of the
thirty-fifth instrument of ratification or accession.
2. For each State ratifying or acceding to the
Convention after the deposit of the thirty-fifth
instrument of ratification or accession, the Convention
shall enter into force on the thirtieth day after the
deposit by such State of its instrument of ratification
or accession.\21\
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\21\ Vienna Convention, Article 84.
When the necessary exchange or deposit of instruments of
ratification of a treaty has been completed and the treaty has
entered into force, the treaty text is prepared for publication
by the Department of State in United States Treaties and Other
International Acts Series,\22\ and registration for publication
with the U.N. Secretariat pursuant to Article 102 of the U.N.
Charter.\23\ The United States no longer has a practice of
proclaiming treaties unless specific circumstances require
proclamation.\24\
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\22\ 1 U.S.C. Sec. 112(a). Slip or pamphlet treaty texts are
published in the Treaties and Other International Acts Series (TIAS).
See 1 U.S.C. Sec. 113. See also Chapter X and section, Guide to
Resources on Treaties, in the annotated bibliography contained in
Appendix 1.
\23\ Although Article 102 of the U.N. Charter specifies that a
treaty must be registered before it can be invoked before any organ of
the United Nations, this provision has not always been followed in
practice.
\24\ The proclamation of a treaty is a national act by which the
text of a ratified treaty is publicized. Whiteman, Digest of
International Law, v. 14, p. 113. For an example of a proclamation, see
Appendix 9. There are no constitutional or statutory provisions in the
United States which require proclamation of a treaty as such. However,
if a treaty changes tariffs, the tariffs must be proclaimed. Most
agreements do not specifically require proclamation, and because
proclamation is a national act, the absence of a proclamation does not
affect the international obligation of a treaty. Whiteman, Digest of
International Law, v. 14, p. 114.
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B. Resubmission of the Treaty or Submission of Protocol
The President may also resubmit a rejected or modified
treaty to the Senate for reconsideration at any time prior to
its ratification although the general practice is to submit a
protocol or supplemental agreement setting out amendments. The
option of resubmitting the entire treaty permits the
flexibility of delaying ratification of a treaty if, for
example, the President expects an imminent change in the
fundamental circumstances which gave rise to the agreement. It
also permits him, in instances in which the Senate has rejected
a treaty or attached reservations he opposed to a treaty, to
wait for more favorable circumstances and resubmit the
treaty.\25\ The President may also resubmit a treaty in a
renegotiated form should a Senate understanding, declaration,
or reservation alter or restrict its meaning to such a degree
that it was unacceptable to him or to the other party to the
agreement.
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\25\ For example, the Senate might be more receptive to unqualified
advice and consent to a multilateral treaty which is resubmitted after
100 other signatories have ratified it, instead of just a few at the
time it was originally submitted.
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Generally, renegotiation of a treaty will be achieved by
negotiation of a protocol or supplement to the original
agreement.\26\ A common motive for such Presidential action is
to enable the Senate to give advice and consent to ratification
without reservations, or to avoid outright Senate rejection of
a treaty. In such circumstances, the executive branch usually
attempts to negotiate a protocol or supplement to the treaty
which eliminates objections raised or clarifies provisions
questioned by the Senate.\27\ Any such instrument is then
submitted to the Senate for consideration together with the
original treaty. Such was the case, for example, with the
United Nations Convention on the Law of the Sea, which was done
in 1982. The United States did not sign the convention at that
time because of flaws in the convention's seabed mining regime.
An Agreement Relating to the Implementation of Part XI of the
United Nations Convention on the Law of the Sea was transmitted
to the Senate in 1994, along with the original convention. The
Letter of Submittal from the Secretary of State states that the
agreement ``contains legally binding changes to that part of
the Convention dealing with the mining of the seabed * * * and
is to be applied and interpreted together with the Convention
as a single instrument.'' \28\ The agreement itself deals
principally with the renegotiated seabed mining provisions; by
correcting those defects in the chief convention, however, it
``promotes universal adherence to the Convention by removing
obstacles to acceptance of the Convention by * * * the United
States.'' \29\
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\26\ For example, the U.S.-U.K. Supplementary Treaty to the
Extradition Treaty of June 8, 1972, with annex. TIAS 12050.
\27\ Whiteman, Digest of International Law, v. 14, p. 58.
\28\ Senate Treaty Doc. 103-39, p. v.
\29\ Ibid.
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However, in instances where a clarification is sought, the
executive branch may be able to satisfy the Senate with
assurances that specified provisions of a treaty will be
administered in a certain way. In such instances, negotiation
of a protocol would not be necessary.\30\
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\30\ Whiteman, Digest of International Law, v. 14, p. 58.
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Another variant is presented by the 1974 Threshold Test Ban
and 1976 Peaceful Nuclear Explosion Treaties. It was not until
protocols relating to verification of both treaties were
concluded in 1990 that the Senate gave advice and consent to
ratification of the two treaties and their related protocols.
The most recent example of close linkage between a treaty and a
protocol to it is the Inter-American Convention on Mutual
Assistance in Criminal Matters, done in 1992, and its optional
protocol, done in 1993, which were transmitted and treated by
the Senate as a single package; the Senate gave its advice and
consent to ratification of both instruments on October 18,
2000.\31\
---------------------------------------------------------------------------
\31\ Senate Treaty Doc. 105-25, S. Exec. Rept. 106-24.
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A treaty may also be formally resubmitted to the Senate,
after full advice and consent have been granted, but before the
treaty has been ratified by the President or entered into
force. Such instances may occur when restrictive provisions
added in order to obtain the Senate's advice and consent are
not accepted by the other signatory(s) to the treaty. With the
passage of time, the Executive may believe the Senate will be
less inclined to impose restrictions, or the other government
may be more receptive to accepting the wishes of the Senate.
An often cited historical example of such a situation
involves a naturalization convention between the United States
and Turkey concluded at Constantinople, August 11, 1874. The
Senate, on January 22, 1875, granted advice and consent to this
agreement with amendments which were not fully accepted by the
Turkish Government, and the treaty was not ratified by the
President. Fourteen years later, the Turkish Government decided
to accept the agreement as amended, but because of the passage
of time, President Cleveland again gave the Senate the
opportunity to act. The Senate, by a resolution dated February
28, 1889, advised the President to ratify but added a new
understanding as a condition. A new agreement which
incorporated all of the Senate amendments was finally
negotiated and signed by the President in 1908. This agreement
was then submitted to the Senate and subsequently ratified.\32\
---------------------------------------------------------------------------
\32\ Crandall, Treaties, Their Making and Enforcement, pp. 101-102.
However, once the Senate has given advice and consent to a treaty, it
does not appear that the President is under any constitutional
obligation to resubmit the treaty as was done in the above cited
example. Ibid., p. 101.
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C. Inaction or Refusal to Ratify
U.S. law does not impose any legal obligation on the
President to ratify a treaty after the Senate has given its
advice and consent.\33\
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\33\ Restatement (Third) of the Foreign Relations Law of the United
States, sec. 303, Comment d and Reporters' Note 3. This power, although
not expressly given to the President by the Constitution, has been
characterized as a ``power which inheres in the executive power
conferred upon him to conduct our foreign relations'' See Statement of
John C. Spooner before the U.S. Senate of January 23, 1906.
Congressional Record, 59th Cong., 1st Sess., p. 1419.
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It is also generally conceded that international law does
not require a state to ratify a treaty until it chooses to
become a party to the treaty by the means specified in the
treaty.\34\ The President therefore, is free to ratify, or not
to ratify a treaty as he sees fit.
---------------------------------------------------------------------------
\34\ Whiteman, Digest of International Law, v. 14, p. 50.
---------------------------------------------------------------------------
As ratification requires an affirmative act on the part of
a President, a failure of the President to ratify means that a
treaty cannot enter into force for the United States. In most
cases, Presidential delay of ratification is because
implementing legislation for the treaty has not yet been
enacted by the Congress. Presidential inaction is usually
temporary, as was the case with ratification of the 1958 United
Nations Convention on the Recognition and Enforcement of
Foreign Arbitral Awards.\35\ The Senate granted its advice and
consent to ratification of this convention in 1968, but
implementing legislation (Public Law 91-360) was not approved
until July 1970. The President then ratified the convention in
September 1970.\36\
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\35\ 21 U.S.T. 2517, TIAS 6997, 330 UNTS 38.
\36\ Another more recent example is the treaty with Mexico on the
Execution of Penal Sentences [28 U.S.T. 7399, TIAS 8718]. The treaty
was signed on November 25, 1976. Senate advice and consent was given on
July 21, 1977, and implementing legislation (Public Law 95-144) was
approved on October 28, 1977. Instruments of ratification were
exchanged with Mexico 3 days later on October 31, 1977. See also
Restatement (Third) of the Foreign Relations Law of the United States,
sec. 303, Reporters' Note 3.
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Numerous historical examples of Presidential non-
ratification have been cited by scholarly sources.\37\ One was
a treaty of amity, commerce, and extradition with Venezuela
signed July 10, 1856. The Senate gave advice and consent to
ratification of the treaty with an amendment, but the President
decided not to ratify the treaty and instead renegotiated it in
order to effect other changes. The re-negotiated treaty was
eventually signed, submitted to the Senate, and ratified.\38\
---------------------------------------------------------------------------
\37\ See Crandall, Treaties, Their Making and Enforcement. pp. 97-
99.
\38\ Ibid., p. 98. For a list of 38 treaties that were approved by
the Senate with reservations, but which did not enter into force as a
result of the reservations, see Collier, E., U.S. Senate Rejection of
Treaties [Congressional Research Service Multilith 79-149 F.] (July 16,
1979.) This list, however, does not distinguish treaties unratified
because Senate reservations were unacceptable to the President, from
those not ratified because reservations were unacceptable to other
parties.
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Non-ratification, after Senate advice and consent is given
to a treaty, serves as a final option for a President who does
not want to ratify a particular treaty. In practice, however,
Presidential dissatisfaction will be expressed at earlier
stages of the treaty's consideration, and as Presidents and
their policies may differ, one President may be reluctant to
ratify a treaty signed under a previous administration.
For example, the Eisenhower Administration took the formal
position that the ``United States will not * * * become a party
to the covenants on human rights, the convention on the
political rights of women and certain other proposed
multilateral agreements.'' \39\ Presumably, this statement
included the Genocide Convention, signed by a previous
administration on December 11, 1948, but which had been
awaiting the advice and consent of the Senate since 1949.\40\
Eisenhower's policy was reversed by the Kennedy Administration
which sent to the Senate human rights conventions on slavery,
forced labor, and political rights of women,\41\ and by the
Nixon Administration which renewed the earlier request for
Senate advice and consent to the Genocide Convention.\42\
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\39\ U.S. Department of State Bulletin, vol. 32, p. 822 (1955).
\40\ See Henkin, Foreign Affairs and the Constitution (1972), p.
394 n. 71.
\41\ 113 Congressional Record 8332 (1967).
\42\ S. Exec. Rept. 92-6, 92d Cong., 1st Sess. (1971).
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Another more recent example, albeit involving
administration opposition to ratification prior to a formal
vote by the full Senate, is found in the Vienna Convention on
the Law of Treaties. The Foreign Relations Committee ordered
reported out a resolution of advice and consent to the treaty
on September 7, 1972, that contained an understanding and
interpretation which the executive branch [through the
Department of State] opposed. As a result of negotiations
between the executive branch and the Senate, the convention was
not voted upon by the full Senate and has since remained in
committee, thereby relieving the President of the possibility
of being presented with an ``advised and consented'' treaty in
a form not acceptable to him.\43\
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\43\ See Digest of United States Practice in International Law,
1974, pp. 195-198. For further discussion of Senate action on the
Vienna Convention, see Chapter III. For subsequent consideration, see
Nash (Leich), Cumulative Digest of United States Practice in
International Law 1981-1988, pp. 1228-1239.
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procedure when other nations attach new conditions
Unless prohibited by the agreement itself, a state may
attach conditions to an agreement only at signature or
ratification. If such expressions are attached to the treaty as
formal statements which limit or modify its substance, they are
known as ``reservations.'' \44\ A reservation is a formal
declaration by a state that excludes or modifies the legal
effect of certain treaty provisions as between that state and
other parties.\45\ If a foreign state, or in the case of the
United States, a President, adds a reservation to a bilateral
treaty after the Senate has given advice and consent, the
President must submit the new reservation to the Senate for its
advice and consent prior to his ratification of the treaty.\46\
---------------------------------------------------------------------------
\44\ Whiteman, Digest of International Law, v. 14, p. 137.
\45\ Ibid. Cf. also Vienna Convention on the Law of Treaties,
Article 2(1)(d).
\46\ Henkin, Foreign Affairs and the Constitution (1972), p. 379.
However, in the case of multilateral treaties this is generally not the
practice followed. See discussion which follows.
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As a practical matter, however, reservations to
multilateral treaties made by other nations after Senate advice
and consent are generally not submitted to the Senate. This is
often the case with multilateral agreements where the executive
branch has developed a practice of dealing with new
reservations of other states, after Senate advice and consent
to a multilateral treaty, without seeking Senate advice and
consent on the new reservation. This development owes its
origin in large part to the greatly accelerated pace and
increased volume of U.S. treatymaking that has been the rule
following the Second World War, and which has prompted the
Department of State, since then, not to refer to the Senate for
advice and consent new reservations made by other states to
multilateral treaties previously approved by the Senate.\47\
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\47\ A letter of March 1, 1966, on file in the Office of the Legal
Adviser, Department of State, addressed U.S. practice in this regard
over the preceding 20 years. The text of the letter is reproduced in
the American Journal of International Law, v. 60 (1966) p. 563.
---------------------------------------------------------------------------
The rationale for such State Department action has been
characterized by some sources as apparently being based on a
doctrine of implied or tacit consent by the Senate to such
reservations,\48\ and a Department of State letter on this
issue \49\ maintains that the ``reservations made during this
period have been such that they were not regarded as requiring
Senate consideration.'' The letter cited a number of factors
leading to this conclusion including the existence of
``reservations'' which were not true reservations (that is,
reservations by title only and not by substance), repetition by
states of reservations identical to, or patterned on those of
other states to which the Senate had originally consented, and
policies unique to some multilateral agreements which permit
reservations without referral to other states, or which make
them subject to majority approval by the other nations--a
process to which the Senate had originally given its advice and
consent.\50\
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\48\ Restatement (Third) of the Foreign Relations Law of the United
States, sec. 314, Comment c. See also discussion of tacit amendment in
section on amendments in Chapter IX.
\49\ Letter of March 1, 1966, American Journal of International
Law, v. 60 (1966), p. 563.
\50\ The letter cites the 1954 Convention concerning Customs
Facilities for Touring [TIAS 3879] as an example of an agreement
requiring majority approval of reservations. It has been suggested that
in such cases * * * ``perhaps * * * the Executive concluded that,
knowing the practice, the Senate had waived the need for its consent.
Or that he could accept these modifications on his own authority.''
Henkin, Foreign Affairs and the Constitution, p. 379, n. 21. Note that
the practice of attaching reservations to multilateral treaties which
are not formally renegotiated, is often a controversial one. It, in
effect, permits a state to depart from the terms of the treaty in
contrast to the general agreement of the parties to be equally bound by
the terms of the document. Thus, the practice of permitting
reservations to multilateral treaties has the effect of making it
attractive for states to express objections to a document, and at the
same time, to become parties to it. The end result, however, is often a
less homogenous document.
---------------------------------------------------------------------------
States may also issue clarifications or explanations which
do not substantively modify a treaty. Such statements may be
titled ``declaration,'' ``understanding,'' or any other
descriptive term a party desires. However, whether in fact a
particular statement is a reservation or merely a non-
substantive addition to an agreement is determined by its
content and not by its title. This distinction between
reservations and other non-substantive conditions is important
because non-substantive understandings, declarations, and
statements made by other states after Senate advice and consent
to ratification of a treaty are considered by the Department of
State not to require new advice and consent.\51\
---------------------------------------------------------------------------
\51\ Such statements may be regarded as nothing more than a
clarifying statement. See Whiteman, Digest of International Law, v. 14,
p. 188.
---------------------------------------------------------------------------
The issue of whether or not a particular statement was
indeed a non-substantive statement, not a reservation, was
raised in regard to a communique issued by the Foreign Ministry
of Panama on April 25, 1978.\52\ The communique in question
concerned the Senate's reservations to the Panama Canal Treaty,
and Senator Jesse Helms, in a letter to President Carter,
stated that the Panamanian interpretation either rejected or
repudiated ``key'' Senate changes.\53\ The response from the
White House was that the communique in question had no legal
effect as it merely contained a point-by-point description of
items of Senate action together with a commentary thereon. The
response stressed the State Department's view that the formal
instruments of ratification of both the United States and
Panama would contain the full texts of the amendments,
conditions, reservations, and understandings which the Senate
had approved along with the Panama Canal Treaties and that
these items would be contained in the formal protocol of
exchange. These were, it noted, the documents by which the
parties would be bound.\54\
---------------------------------------------------------------------------
\52\ See Digest of United States Practice in International Law,
1978, pp. 729-731. The U.S. Senate adopted a resolution of advice and
consent to the treaty with amendments, reservations and understandings
earlier on March 16, 1978.
\53\ Ibid., p. 729. For a text of the lengthy Panamanian
communique, see Congressional Record, vol. 124, pt. 12 (June 4, 1978),
pp. S16156-S16163. It is interesting to note that a Panamanian
plebiscite, held in accordance with that country's constitution,
approved the treaty as formulated prior to the issuance of this
communique, just as the United States had.
\54\ Letter of June 14, 1979, from Assistant Secretary of State for
Congressional Relations Douglas J. Bennett, Jr., text partially
reproduced in Digest of United States Practice in International Law,
1978, p. 730.
---------------------------------------------------------------------------
The White House position was, therefore, that because the
Panamanian communique did not constitute a reservation in the
opinion of the executive branch, the President was not required
to submit it to the Senate for advice and consent. The Panama
Canal Treaty subsequently entered into force on October 1,
1979, without Presidential submittal of the Panamanian
communique to the Senate for its advice and consent.\55\
---------------------------------------------------------------------------
\55\ Ibid., See also U.S. Department of State, Treaties in Force,
p. 225 (2000). Note that the day before ratification of the treaty,
Panama inserted three new paragraphs in its ratification provision and
the issue of whether these were non-substantive statements was again
raised. See Congressional Record of June 15, 1978, v. 124, pt. 14. pp.
17790-17793 for objections raised and the administration's response.
---------------------------------------------------------------------------
The issue of whether or not certain statements of the
Panamanian Government were reservations or not was again raised
in hearings before the Senate Judiciary Committee's
Subcommittee on Separation of Powers in June 1983.\56\ In the
words of committee witness Dr. Charles H. Breecher:
---------------------------------------------------------------------------
\56\ U.S. Congress. Senate. Committee on the Judiciary. Hearings
before the Subcommittee on Separation of Powers. The Panama Canal
Treaty--Constitutional and Legal Aspects of the Ratification Process,
98th Cong., 1st Sess., June 23, 1983.
---------------------------------------------------------------------------
[The] Panama Canal treaties have not--I repeat, not
been ratified in international law, and they therefore
did not go into effect on the 1st of October 1979, and
are not in effect now.
The reason is very simple. In their respective
instruments of ratification, the United States and
Panama did not agree to the same text of the treaties.
Instead, Panama first agreed to the treaties as the
President of the United States had ratified them,
pursuant to Senate advice and consent, and then added
in both its instruments of ratification, unilaterally,
something they called an understanding, on which Panama
made its agreement to the treaties contingent.
This Panamanian understanding--in reality, a counter-
reservation to both treaties, three paragraphs long--
would, had it been accepted by the United States, have
nullified the so-called DeConcini reservation under
which the United States has permanently * * * the right
to use independently * * * without Panamanian consent,
or even against Panamanian opposition, military force
in Panama to keep the Canal open and operating. Since
the United States has not accepted this Panamanian so-
called understanding, there are no treaties in
international law.\57\
---------------------------------------------------------------------------
\57\ Ibid., pp. 4-5.
As part of his response to these assertions, Robert E.
Dalton, Assistant Legal Adviser for Treaty Affairs at the
Department of State, expressed the following viewpoint:
It is indeed true that an amendment or reservation
added to a treaty after Senate ratification may require
Senate approval. This is based on the notion that the
constitutional mandate of Senate advice and consent to
a treaty should not be undercut by subsequent changes
to the document which the Senate has approved. However,
the flaw in the application of these principles to the
three-paragraph Panamanian statement is that the
Panamanian statement is not an amendment or reservation
either in form or substance.
* * *
In the present case, the first two Panamanian
paragraphs are quite clearly labeled
``understandings,'' and the third is a ``declaration.''
On their face, then, they are not statements that would
seem to require submission to the Senate. Of course,
the definition in the Vienna Convention says, quite
rightly, that the label is not necessarily controlling;
it is the substance which determines whether a
statement is a true reservation. An analysis of the
three Panamanian paragraphs makes clear that they are
what they are labeled. None purports to exclude or
modify the DeConcini condition or any other provision
of the treaties, as advised and consented to by the
Senate. None is a true reservation.\58\
---------------------------------------------------------------------------
\58\ Ibid., pp. 102-103.
It must be stressed, in conclusion, that the issue of
seemingly non-substantive statements raises an important
question for the Senate. U.S. practice is such that when a
treaty has once been sent to the Senate for advice and consent,
it is the executive branch that determines whether a subsequent
statement is a substantive modification or not. It is therefore
up to the executive branch, in exercising its discretion not to
submit such a statement to the Senate for its advice and
consent, to proceed in a manner that does not trammel the
Senate's constitutional role in the treatymaking process.
VIII. DISPUTE SETTLEMENT, RULES OF INTERPRETATION, AND OBLIGATION TO
IMPLEMENT \1\
---------------------------------------------------------------------------
\1\ Prepared by Jeanne J. Grimmett, Legislative Attorney.
---------------------------------------------------------------------------
----------
Once a treaty has entered into force, states may differ in
the interpretation of their obligations and disputes may arise.
Most disputes are settled by consultation or negotiation.
However, when these measures fail, states may resort to more
formal dispute settlement procedures. This chapter examines the
formal procedural options available to states that want to
resolve treaty disputes peacefully when negotiations have
failed. The most frequently used options are conciliation,
arbitration, and judicial settlement. In the past, the U.S.
Senate has sometimes attached conditions to its acceptance of
compulsory judicial settlement procedures of the International
Court of Justice in treaty disputes. As certain dispute
settlement procedures in the Vienna Convention are similar to
those previously approved with conditions--or in the case of
the Law of the Sea Treaty Optional Protocol--rejected by the
Senate \2\--particular attention is given to those procedures
in the Vienna Convention which mandate compulsory jurisdiction
of the International Court.
---------------------------------------------------------------------------
\2\ Ex. N, 86-1, rejected May 27, 1960; motion to reconsider
entered but not taken up. The Optional Protocol was returned to the
President by S. Res. 267, 106th Cong., 2d Sess., adopted October 12,
2000. 146 Congressional Record, October 12, 2000, p. S10499 (daily
ed.).
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International law applies to disputes between nations. The
rules of international law on treaty interpretation as
specified in the Vienna Convention on the Law of Treaties
parallel the traditional international rules of treaty
interpretation. However, the rules governing treaty
interpretation set forth by the Vienna Convention differ in
some important respects from the rules of treaty interpretation
applied by U.S. courts in determining a treaty's effect as
domestic law. This chapter examines briefly the criteria for a
treaty interpretation applied by these two systems. Finally, as
disputes generally arise out of questions relating to a party's
implementation of a treaty, the question of the obligation of
Congress to implement an international agreement is also
discussed.
A. Dispute Settlement
If a dispute arises between states concerning a treaty's
implementation, it may be possible for the parties involved to
consult and negotiate a mutually acceptable solution. If
negotiation does not resolve the dispute, the parties may
resort to more formal remedies such as conciliation,
arbitration and judicial settlement.
conciliation
Conciliation is a non-binding process whereby the parties
to a dispute submit to the efforts of an international body or
commission of persons to bring about a friendly settlement of a
dispute. The Vienna Convention provides that in certain
disputes, if not otherwise settled \3\ within 12 months, a
party to the dispute may request the Secretary General of the
United Nations to set into motion an advisory conciliation
procedure. Under this procedure, the Secretary General shall
maintain a list of conciliators consisting of qualified jurists
for prospective appointment to a commission which ``* * * shall
hear the parties, examine the claims and objections, and make
proposals to the parties with a view to reaching an amicable
settlement of the dispute.'' \4\ The Commission is initially
composed of an even number of members. Each state party to the
dispute has 60 days to designate one commission member from the
list who is not of its nationality, and one additional member--
not necessarily from the list--of its own nationality. The four
conciliators then have an additional 60 days to choose a fifth
conciliator as chairperson, but if they cannot agree within
that time, the Secretary General chooses that person.\5\
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\3\ Or submitted to the International Court of Justice or to
arbitration.
\4\ Vienna Convention, Annex, Secs. 1, 5. Note that conciliation is
also accorded recognition in article 33 of U.N. Charter to which the
United States is a party.
\5\ Ibid., Sec. 2.
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The commission may only hear a narrow range of disputes
relating to validity, termination, withdrawal from or
suspension of the operation of a treaty.\6\ It may not hear
disputes relating to implementation, and it may not hear
disputes relating to jus cogens (superior law). Any party to
the convention, however, may submit a jus cogens dispute to the
International Courts.\7\
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\6\ Vienna Convention, Arts. 65-66.
\7\ Vienna Convention, Art. 66(a). For a discussion of jus cogens
see Chapter III, Section D, supra. Jus cogens refers to the existence
of a superior law or peremptory norm of international law which holds a
special status internationally and which cannot be violated by a
treaty. A dispute relating to jus cogens would center on the issue of
whether a particular international rule is so universally accepted and
exalted by the international community that no derogation is permitted
from it. Parties to a treaty would not be legally permitted, even by
choice, to violate such a rule. An example of such an agreement would
be an aggression pact by two nations against a third. Such an agreement
would violate the U.N. Charter prohibition against the use of force for
the settlement of disputes, which is often cited as an example of jus
cogens.
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Numerous bilateral agreements also provide for the
establishment of conciliation commissions or boards. The
Agreement Between the United States and Poland Regarding
Fisheries in the Western Region of the Middle Atlantic Ocean
\8\ is an example of a bilateral agreement of this type.
Article 10 of the agreement provides for the creation of a
conciliation board composed of four members, two appointed by
each government. The governments undertake to encourage
settlement of claims in accordance with the board's findings,
but the parties involved are not bound to do so. If one of the
parties refuses to settle in accordance with the board's
findings, the board is to encourage the parties to submit to
binding arbitration.
---------------------------------------------------------------------------
\8\ Entered into force July 1, 1975, 26 U.S.T. 1117, Treaties and
Other International Acts (TIAS) 8099.
---------------------------------------------------------------------------
During two periods, 1913-1915 and 1928-1930, the United
States entered into more than 40 bilateral conciliation
treaties.\9\ The earlier of these treaties, the ``Bryan''
Treaties, provided for the establishment of commissions of
inquiry on a permanent basis. Recourse to these commissions is
binding, although the commission's reports are not binding on
the parties. Senate consent, in these instances, was limited to
the original treaties, the terms of which did not require
subsequent Senate consent to specific appointments to the
commission, or to the choice of its rules of procedure.\10\
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\9\ The so-called ``Bryan'' Treaties and ``Kellogg Conciliation
Treaties.'' See Whiteman, Marjorie, Digest of International Law, v. 12,
1971, pp. 948-950 (hereafter cited as Whiteman), for a list of
countries and citations. The United States also signed a conciliation
treaty with Liberia on August 21, 1939 (T.S. 968) and a multilateral
Inter-American Convention on Conciliation in 1933 (T.S. 887).
\10\ See, for example, the Treaty with Bolivia of Jan. 22, 1914, 38
Stat. 1868, 5 Bevans 740.
---------------------------------------------------------------------------
arbitration
Arbitration is ``the settlement of disputes between states
by judges of their own choice, and on the basis of respect for
law.'' \11\ Arbitration is procedurally similar to non-binding
conciliation but differs from conciliation in that parties to
arbitral proceedings agree to accept and to carry out the award
of the tribunal in good faith. Individual treaties frequently
contain an arbitration clause by which the parties agree to
create special tribunals and to submit to them any disputes
regarding the treaty's application or interpretation.\12\ Thus,
the Treaty of Peace with Italy of February 10, 1947 provided
that:
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\11\ Schwarzenberger, G. A Manual of International Law. 1967, p.
241 (hereafter cited as Schwarzenberger). Arbitration is accorded
special recognition by the Vienna Convention, which provides that a
dispute relating to a jus cogens (superior law) not otherwise settled
within 12 months, may be submitted to arbitration by consent of the
parties instead of to the International Court of Justice. Vienna
Convention, Art. 66(a).
\12\ A treaty provision which grants a tribunal automatic
jurisdiction over disputes regarding the application or interpretation
of a treaty is known as a ``compromissory clause.'' Bishop, William W.,
Jr. International Law. 3d ed. 1971, pp. 68-69. Under international law
a state may not be compelled to enter into third-party dispute
settlement and must thus consent to its use. A compromissory clause is
a means of giving such consent. American Law Institute, Restatement
(Third) of the Foreign Relations Law of the United States. 1987,
Sec. 902, Comment e (hereafter cited as Rest. 3d). For a discussion of
U.S. treaty practice involving compromissory clauses, see Noyes, John
E. The Functions of Compromissory Clauses in U.S. Treaties. Virginia
Journal of International Law, v. 34, 1994, p. 831 (hereafter cited as
Noyes).
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Any disputes which may arise in giving effect to * *
* the present Treaty shall be referred to a
Conciliation Commission consisting of one
representative of the Government of the United Nation
concerned and one representative of the Government of
Italy, having equal status.
[Provisions for appointment of a third member
omitted]
* * * The decision of the majority of the members of
the Commission * * * shall be accepted by the parties
as definitive and binding.\13\
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\13\ Treaty of Peace with Italy, signed Feb. 10, 1947, Art. 83,
Sec. 6, TIAS 1648, 4 Bevans 311. Details of augmented Commission
membership and procedures in the event the initial two members are
unable to agree have been omitted.
During the period 1928-1930, the United States concluded a
series of at least 25 bilateral arbitration treaties with
foreign nations. The text of these treaties generally specified
that special agreements would provide for the organization of
special tribunals, define their powers, state questions at
issue, and settle the terms of reference, and that the special
agreements would require the advice and consent of the
Senate.\14\ On the other hand, there have been numerous
instances in which the Senate has approved treaties providing
for submission of specific matters to arbitration and has left
it to the President to manage appointment of the arbitrators
and to determine the scope and form of the arbitration.\15\
---------------------------------------------------------------------------
\14\ See, for example, the Arbitration Agreement with Norway of
Feb. 20, 1929, 46 Stat. 2278, 10 Bevans 488. A list of 25 countries
with citations to U.S. Arbitration treaties with them is provided in
Whiteman, v. 12, 1970, pp. 1044 and 1045.
\15\ For a list of 39 such instances, see Willoughby, W. The
Constitutional Law of the United States. 2d ed. 1929, p. 543. Note also
that the United States is a party to the Convention on the Recognition
and Enforcement of Foreign Arbitral Awards, 21 U.S.T. 2517, TIAS 6997.
The Senate gave its advice and consent to this agreement with
declarations on Oct. 4, 1968.
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In addition, a recent program of bilateral investment
treaties has included an investor-state disputes mechanism that
gives U.S. investors the right to binding arbitration against a
host state without involvement of the U.S. Government, through
the International Center for the Settlement of Investment
Disputes.\16\ Binding investor-state arbitration is also
provided for in the investment chapter of the trilateral North
American Free Trade Agreement (NAFTA).\17\
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\16\ For a discussion of investment treaties, see Chapter XI.
\17\ North American Free Trade Agreement, entered into force Jan.
1, 1994, Arts. 1115-1138, H.R. Doc. 103-159, v. 1, 103d Cong., 1st
Sess., 1993, pp. 1109-1121.
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The World Trade Organization (WTO) Understanding on Rules
and Procedures Governing the Settlement of Disputes,\18\ which
provides for the resolution of disputes arising under WTO
agreements \19\ and operates through a system of ad hoc
panels,\20\ incorporates binding arbitration at two points in
the dispute process. In the understanding, WTO Members agree to
submit to binding arbitration in the following situations: (1)
to determine the length of time within which a Member must
comply with an adopted panel (and any Appellate Body) report,
in the event the time period proposed by the Member is
unacceptable and the disputing parties cannot otherwise agree
on a deadline, and (2) to determine the level of trade
retaliation, in the event a defending party has not complied
with its obligations with the agreed-upon compliance period,
the WTO has authorized the prevailing party to retaliate, and
the defending party objects to the level of suspension of trade
concessions or obligations proposed by the prevailing party or
claims that certain principles and procedures in the Dispute
Settlement Understanding were not followed.\21\ In the latter
proceeding, the arbitrator is to determine whether the level of
the suspended WTO concessions or other obligations is
equivalent to the level of nullification or impairment of WTO
benefits. The Dispute Settlement Understanding also allows WTO
Members to submit a dispute to arbitration upon mutual
agreement of the disputing parties.\22\
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\18\ Understanding on Rules and Procedures Governing the Settlement
of Disputes (Dispute Settlement Understanding), entered into force Jan.
1, 1995, H.R. Doc. 103-316, v. 1, 103d Cong., 2d Sess., 1994, pp. 1654-
1678. Congress approved the Dispute Settlement Understanding in sec.
101 of the Uruguay Round Agreements Act, Public Law 103-365, 108 Stat.
4814.
\19\ All WTO Members must be a party to the Dispute Settlement
Understanding and are under an obligation ``to have recourse to, and
abide by, the rules and procedures'' of the Understanding when they
seek redress of WTO violations and other nullification and impairment
of benefits, and not to take certain unilateral measures in WTO-related
trade disputes. Dispute Settlement Understanding, Arts. 1:1, 23. WTO
Members ``recognize that [the Understanding] * * * serves to preserve
the rights and obligations of Members under the covered agreements, and
to clarify the existing provisions of those agreements in accordance
with customary rules of interpretation of public international law.''
Ibid., Art. 3:2. See generally Noyes, at 883-890.
\20\ A panel is to issue a report on the disputed measure, which is
subject to appeal by a disputing party to a standing Appellate Body.
Once the panel, and any Appellate Body report is adopted by the WTO
Members, the losing party must present a compliance plan to the WTO and
is expected to comply with its obligations within a reasonable period
of time; if the losing party does not do so, it is required to enter
into negotiations over compensation with the prevailing party, if the
latter so requests, or it may be subject to retaliation. The
Understanding contains a negative consensus rule for certain decisions
made by the WTO during a dispute proceeding aimed at strengthening the
process and facilitating compliance with WTO obligations. The rule
applies to the establishment of panels, the adoption of panel and
Appellate Body Reports, and where compliance with adopted reports is
not forthcoming and, if requested by the prevailing party in the
dispute, authorization for that party to retaliate (that is, withdraw a
WTO-covered trade concession or obligation owed the defending party).
Under the rule, the WTO will take the proposed action unless all WTO
Members present the meeting at which it is being considered vote not to
do so. Ibid., Arts. 6, 12, 16-17, 21-22.
\21\ Ibid., Arts. 21:3(c), 22:6.
\22\ Ibid., Art. 25.
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judicial settlement
Judicial settlement, as a mechanism for settling treaty
disputes, differs from arbitration in the method of selecting
the members of the judicial organ involved. In arbitration
proceedings, the panel of judges is chosen by agreement of the
parties, while ``judicial settlement presupposes the existence
of a standing tribunal with its own bench of judges and its own
rules of procedure which parties to a dispute must accept.''
\23\
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\23\ Schwarzenberger, p. 241.
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An example of a U.S. decision to submit a dispute to
binding judicial settlement is found in the 1979 United States-
Canadian Maritime Boundary Dispute Settlement Agreement.\24\
Under the terms of this treaty, the parties agreed to submit
their boundary dispute over delimitation of the Gulf of Maine
Area to a chamber of the International Court of Justice
pursuant to Article 40 of the Statute of the Court. The Senate
granted its advice and consent to this agreement with
amendments, and the treaty was proclaimed by President Reagan
on February 15, 1982. The dispute was then submitted, and the
chamber rendered a decision on October 12, 1984.
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\24\ United States-Canada Maritime Boundary; Dispute Settlement
Treaty with Agreements, signed March 29, 1979, 33 U.S.T. 2797, TIAS
10204.
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The Vienna Convention on the Law of Treaties provides for
recourse to judicial settlement in treaty disputes relating to
whether or not a particular norm of international law is
superior or peremptory in character ( jus cogens). If
resolution of such disputes is not reached within 12 months
after formal notification of the dispute to the other party,
any party may invoke the jurisdiction of the International
Court of Justice unless the parties agree to submit to
arbitration.\25\ If the Court subsequently reaches a decision,
the parties are required by the U.N. Charter \26\ to comply
with it. However, the ability of the Court to have its
decisions enforced is limited to enforcement by the Security
Council.\27\ The U.N. Charter leaves enforcement of the Court's
decisions in such instances to a political decision of the
council, which is subject to veto by any of the five permanent
members, including the United States.\28\
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\25\ Vienna Convention, Art. 66(a).
\26\ U.N. Charter, Art. 94.
\27\ Ibid., Arts. 39-52.
\28\ Ibid., Arts. 39-52, 23, 27.
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Nations may also agree to submit disputes relating to
treaty interpretation to the jurisdiction of the International
Court of Justice before specific disputes actually arise. The
Statute of the International Court (to which the United States
became a party ipso facto when it became a member of the United
Nations) provides that states may at any time declare, under
Article 36(2) of the Statute, that they recognize the
compulsory jurisdiction of the court in legal disputes in a
variety of areas including ``the interpretation of a treaty.''
In practice, numerous treaties to which the United States is a
party and to which the Senate has consented contain provisions
for submission of disputes to the International Court of
Justice.\29\ In addition, prior to 1985, when the United States
terminated its Article 36(2)(b) declaration,\30\ the United
States subscribed to the Court's compulsory jurisdiction
subject to a Senate reservation known as the ``Connally
amendment.'' The Connally amendment exempted from the Court's
compulsory jurisdiction any matter ``essentially within the
domestic jurisdiction of the United States of America as
determined by the United States of America.'' \31\
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\29\ Examples include the 1969 Consular Convention with Belgium
(Art. 46), 25 U.S.T. 41, TIAS 7775, and the 1971 Convention on
Psychotropic Substances (Art. 31), which entered into force for the
United States on July 15, 1980. TIAS 9725. As of April 8, 1992, the
Senate had approved 42 multilateral treaties containing provisions for
submission of disputes to the International Court of Justice. U.S.
Senate. Consular Conventions, Extradition Treaties, and Treaties
Relating to Mutual Legal Assistance in Criminal Matters (MLATS), April
8, 1992, S. Hrg. 102-674, p. 17. In some cases, the Senate has added a
condition concerning submissions of disputes to the International
Court. As noted by one commentator, however, the United States ``is
party to very few treaties entering into force for the United States
since 1980 that contain compromissory clauses referring disputes to the
ICJ.'' Noyes, p. 869, n. 170.
\30\ The United States withdrew its declaration accepting the
Court's compulsory jurisdiction on October 7, 1985, in response to the
Court's decision to adjudicate Nicaragua's suit against the United
States. Letter from Secretary of State George P. Shultz to U.N.
Secretary, October 7, 1985. International Legal Materials, v. 24, 1985,
p. 1742.
\31\ The Connally amendment is a condition of ratification to U.S.
acceptance of the International Court's compulsory jurisdiction. It is
contained in the Senate's resolution of advice and consent on the U.S.
declaration of adherence to the Court's jurisdiction. See S. Res. 196,
79th Cong., 2d Sess., Congressional Record, v. 92, Aug. 1-2, 1946, pp.
10621, 10692, 10705-10706, for the text of S. Res. 196 as finally
adopted. For the text of the Presidential declaration incorporating S.
Res. 196, of Aug. 2, 1946, see 61 Stat. 1218, TIAS No. 1598 (1946). S.
Res. 196 was agreed to by a vote of 60 yeas, 2 nays and 34 not voting.
---------------------------------------------------------------------------
The Connally amendment further qualified U.S. acceptance of
the Court's compulsory jurisdiction in certain instances when
disputes involving multilateral treaties were involved. Under
the provisions of the amendment, U.S. unqualified acceptance of
the Court's compulsory jurisdiction did not apply to:
(c) Disputes arising under a multilateral treaty,
unless, (1) all Parties to the treaty, affected by the
decision are also parties to the case before the Court,
or (2) the United States of America specifically agrees
to jurisdiction.\32\
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\32\ S. Res. 196, supra note 30. This is referred to as the
``Vandenberg amendment,'' but it is generally included when the term
``Connally amendment'' is used.
This Senate condition of ratification may be important in
relation to the Vienna Convention because the convention
provides that disputes involving peremptory norms of
international law be submitted to the compulsory jurisdiction
of the International Court. In contrast, the Connally amendment
specifically reserved for the United States the option of not
submitting treaty interpretation disputes to the International
Court insofar as such disputes might involve matters
essentially within the domestic jurisdiction of the United
States as determined by the United States.
The Vienna Convention has not yet been ratified by the
United States and remains pending before the Senate Foreign
Relations Committee. But should the Senate give its advice and
consent, unqualified Senate approval of its dispute settlement
mechanisms would thus appear to broaden significantly U.S.
acceptance of the Court's jurisdiction. Some might consider
this to be contrary to the spirit of the Connally Reservation
which specifically attempted to preserve for the United States
the option of disputes concerning ``the interpretation of a
treaty'' insofar involve ``matters which are essentially within
the domestic jurisdiction in any further consideration of the
Vienna Convention.\33\
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\33\ The Connally amendment has been the subject of much
controversy. On May 20, 1974, the Senate passed a sense of the Senate
resolution which bears on the Connally amendment. The resolution,
advisory in nature, expressed the sense of the Senate that the
President should undertake negotiations with other countries that have
qualified their acceptance of the compulsory jurisdiction of the
International Court to have each party agree to accept the Court's
jurisdiction without reservation. See Rague, M. The Reservation of
Power and the Connally Amendment. New York University Journal of
International Law and Politics, v. 11, 1978, pp. 350-355. The executive
branch position on the Connally Reservation has been that ``[t]he
Department of State is on record that the Reservation does not provide
the United States with any substantial benefit, and every
Administration since that of President Eisenhower has urged its
repeal.'' U.S. Department of State. Reform and Restructuring of the
U.N. System, Selected Documents No. 8, 1978, pp. 13-16, and U.S.
Department of State. Digest of United States Practice in International
Law 1978. 1980, p. 1567.
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In giving its advice and consent to the Genocide Convention
providing for the submission of disputes to the International
Court of Justice, the Senate added a condition requiring the
specific consent of the United States. The condition specified:
(1) That with reference to Article IX of the
Convention, before any dispute to which the United
States is a party may be submitted to the jurisdiction
of the International Court of Justice under this
article, the specific consent of the United States is
required in each case.\34\
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\34\ Congressional Record, v. 132, Feb. 19, 1986, p. 2349.
---------------------------------------------------------------------------
B. Rules of Interpretation
The dispute settlement procedures established by the Vienna
Convention also raise another issue of importance to the
Senate, namely, that the Vienna Convention provides rules for
treaty interpretation which differ from those traditionally
applied by the U.S. courts. This may be important to the extent
that the Connally Reservation may have been intended not only
to qualify compulsory U.S. submission to an international
tribunal (that is, to foreign judges), but also to avoid
compulsory submission to that tribunal's law.\35\
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\35\ Note that the issue of whether or not to submit to foreign
law, as well as to foreign judges, was one of the main issues in
contentions against repeal of the Connally amendment. See Stromberg,
Ruth, and Zafren, Daniel Hill. The Connally Amendment: The United
States' Self-Judging Reservation to the Compulsory Jurisdiction of the
International Court of Justice. Library of Congress, Legislative
Reference Service, Oct. 31, 1968, p. 8.
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The Vienna Convention codifies existing international rules
of treaty interpretation,\36\ which differ from the rules of
treaty interpretation as applied by U.S. courts.\37\ In
essence, the convention stresses ``the dominant position of the
text itself in the interpretative process,'' \38\ whereas U.S.
courts are more apt to permit supplementary means of
interpretation if necessary.\39\
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\36\ Vienna Convention, Arts. 31-32.
\37\ Rest. 3d, Sec. 325, Comment g.
\38\ Rosenne, Shabtai. Interpretation of Treaties in the
Restatement and the International Law Commission's Draft Articles: A
Comparison. Columbia Journal of Transnational Law, v. 5, 1966, p. 221.
\39\ Rest. 3d, Sec. 325, Comment g and Reporters' Note 1.
---------------------------------------------------------------------------
The Vienna Convention provides that a treaty be
``interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose.'' \40\ The context
of the treaty for interpretation purposes is generally limited
to preambles, annexes, agreements relating to the agreement,
and subsequent agreements which relate to the interpretation of
the treaty, or subsequent practice which establishes agreement
of the parties regarding interpretations.\41\ Supplementary
means of interpretation (such as the preparatory work of the
treaty) are not allowed under the convention unless application
of the earlier rule would lead to a manifestly absurd or
unreasonable result.\42\ Thus, except for unusual
circumstances, the convention would exclude as aids to
interpretation such items as the preparatory work of the treaty
and the circumstances of its conclusion.\43\
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\40\ Vienna Convention, Art. 31.
\41\ Ibid.
\42\ Ibid., Art. 32.
\43\ See Kearney, Richard D. and Dalton, Robert E. The Treaty on
Treaties. American Journal of International Law, v. 64, 1970, p. 520.
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In contrast, current U.S. application of international law
in treaty interpretation aims at ascertaining the meaning
intended by the parties in the light of all relevant factors.
Consequently, U.S. courts have not been hesitant to react to
travaux preparatoires.\44\
---------------------------------------------------------------------------
\44\ Rest. 3d, Sec. 325, Reporters' Note 1.
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Relevant factors may include the ordinary meaning of words
in context, the title of the agreement and statements of
purpose, the circumstances of negotiation, negotiating history,
unilateral statements of understanding, subsequent practice,
change of circumstances, compatibility with international law
and general principles of law, and differences between
languages.\45\
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\45\ Ibid., Sec. 325, Comments and Reporters' Notes.
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Furthermore, when interpreting a treaty under domestic law,
U.S. courts include as relevant matters indications of U.S.
intent in making the agreement,\46\ as well as the executive
branch's interpretation of the agreement's meaning.\47\ U.S.
courts generally assign ``great weight'' to such executive
branch interpretation of an international agreement.\48\ Thus,
for example, in 1933, the U.S. Supreme Court in deciding
whether a particular offense was extraditable under the
Extradition Convention with Great Britain of 1899, noted the
treaty's construction by the executive branch as a factor to be
considered in reaching its decision to extradite the
appellant.\49\ The U.S. Supreme Court noted, similarly, in 1961
that ``while courts interpret treaties for themselves, the
meaning given them by the departments of government
particularly charged with their negotiation and enforcement is
given great weight.'' \50\
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\46\ For example, the legislative history of a Senate reservation
to a treaty might be considered in ascertaining its intent.
\47\ Rest. 3d, Sec. 326(2).
\48\ Ibid., Sec. 326(2), Reporters' Note 4.
\49\ Factor v. Laubenheimer, 290 U.S. 276, 294-295 (1933).
\50\ Kolovrat v. Oregon, 336 U.S. 187 (1961). For recent examples
of judicial treaty interpretation, see El Al Israel Airlines, Ltd. v.
Tsui Yuan Tseng, 525 U.S. 155, 167-174 (1999); Zicherman v. Korean Air
Lines Co. Ltd., 516 U.S. 217, 226-228 (1996), Sale v. Haitian Centers
Council, Inc., 509 U.S. 155, 177-188 (1993), Itel Containers
International Corp. v. Huddleston, 507 U.S. 60, 64-69 (1993), and
United States v. Stuart, 489 U.S. 353 (1989).
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The issue of treaty re-interpretation by the executive
branch after Senate advice and consent and subsequent
ratification by the parties has been an item of recent interest
to the Senate. The Antiballistic Missile (ABM) Treaty between
the United States and the former Soviet Union was approved by
the Senate in 1972 and subsequently ratified. The treaty
restricted the parties' use of ABM systems. Subsequently, in
1985, the Reagan Administration sought to ``reinterpret'' the
treaty to permit the development of mobile space-based
antiballistic systems.\51\ The Senate Foreign Relations
Committee responded by proposing S. Res. 167, the ABM Treaty
Interpretation Resolution.\52\ Although never acted on by the
Senate, the resolution focused attention on the problem of
reinterpretation. In effect, it concluded that the only
interpretation of a treaty that is valid and constitutional is
that understood by the Senate at the time of its formal
approval. Specifically, Section (2) of the Resolution provided
as follows:
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\51\ The Clinton Administration announced in 1993 that it had
returned to the traditional interpretation that the ABM Treaty
prohibits the development, testing, and deployment of sea-based, space-
based, and mobile land-based ABM systems and components without regard
for technology utilized. Letter of July 13, 1993, from Thomas Graham,
Jr., Acting Director of the U.S. Arms Control and Disarmament Agency,
to Senator Pell. See Appendix 10.
\52\ See U.S. Senate. Committee on Foreign Relations. The ABM
Interpretation Resolution. S. Rept. 100-164, 100th Cong., 1st Sess.,
1987.
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(2) Under the United States Constitution--
(A) a treaty is properly interpreted in good
faith in accordance with the ordinary meaning
to be given its terms in light of their context
and in light of its object and purpose;
(B) the meaning is to be determined in light
of what the Senate understands the treaty to
mean when it gives its advice and consent;
(C) the understanding of the Senate is
manifested by any formal expression of
understanding by the Senate, as well as by
other evidence of what the Senate understood
the treaty to mean, including Senate approval
or acceptance of, or Senate acquiescence in,
interpretations of the treaty by the Executive
branch communicated to the Senate;
(D) the Senate's understanding of a treaty
cannot be informed by other matters of which it
is not aware, such as private statements made
during the negotiations that were not
communicated to the Senate; and
(E) any subsequent practice between the
Parties in the application of the treaty is to
be taken into account in interpreting the
treaty.
Subsequently, in a 1988 move designed to preempt any future
administration reinterpretation of the INF Treaty,\53\ the
Senate attached conditions to the resolution of ratification
designed to bind the President to the interpretation understood
by the Senate of the provisions of the treaty at the time of
its consent. The text of the relevant condition stated:
---------------------------------------------------------------------------
\53\ Treaty Between the United States of America and the Union of
Soviet Socialist Republics on the Elimination of Intermediate-Range and
Shorter-Range Missiles, Treaty Doc. 100-11.
---------------------------------------------------------------------------
(1) Provided, that the Senate's advice and consent to
ratification of the INF Treaty is subject to the
condition, based on the Treaty Clauses of the
Constitution, that--
(A) the United States shall interpret the
Treaty in accordance with the common
understanding of the Treaty shared by the
President and the Senate at the time the Senate
gave its advice and consent to ratification;
(B) such common understanding is based on:
(i) first, the text of the Treaty and
the provisions of this resolution of
ratification, and
(ii) second, the authoritative
representations which were provided by
the President and his representatives
to the Senate and its Committees, in
seeking Senate consent to ratification,
insofar as such representations were
directed to the meaning and legal
effect of the text of the Treaty; and
(C) the United States shall not agree to or
adopt an interpretation different from that
common understanding except pursuant to Senate
advice and consent to a subsequent treaty or
protocol, or the enactment of a statute; and
(D) if, subsequent to ratification of the
Treaty, a question arises as to the
interpretation of a provision of the Treaty on
which no common understanding was reached in
accordance with paragraph (2), that provision
shall be interpreted in accordance with
applicable United States law.\54\
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\54\ Congressional Record, v. 134, May 27, 1988, p. 12849. See also
discussion of treaty interpretation in Chapter VI.
The Senate affirmed ``the applicability to all treaties of
the constitutionally-based principles of treaty interpretation
set forth in condition (1) in the resolution of ratification
approved by the Senate on May 27, 1988, with respect to the INF
Treaty'' in declarations in the Resolutions of Ratification of
the Treaty on Conventional Armed Forces in Europe (CFE) in
1991, the START I Treaty in 1992, the Open Skies Treaty in
1993, the Start II Treaty in 1996, and the Chemical Weapons
Convention and the Flank Document Agreement to the CFE Treaty
in 1997.\55\ Since 1997, the Senate has added a modified
version of this condition to its resolution of ratification on
all treaties that have come before it.\56\
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\55\ CFE Treaty, Exec. Rept. 102-22, p. 81; START I Treaty, Exec.
Rept. 102-53, pp. 96, 101-102; Open Skies Treaty, Exec. Rept. 103-5, p.
16; START II Treaty, Exec. Rept. 104-10, p. 46; Chemical Weapons
Convention, 143 Congressional Record, April 24, 1997, p. S3656 (daily
ed.); and Flank Document Agreement, Exec Rept. 105-1, pp. 22-24.
\56\ For further discussion, see Chapter VI, under ``Condition
Regarding Treaty Interpretation.''
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C. Obligation to Implement
Disputes involving treaties commonly center on questions
relating to a party's implementation of its obligations. A
question that may be raised under U.S. law is whether or not
Congress has a duty to implement a treaty which is in force
internationally, but which requires additional legislation or
implementation or an appropriation of funds to give effect to
obligations assumed internationally by the United States.
When implementation of a treaty requires domestic
legislation or an appropriation of funds, only the Congress can
provide them.\57\ The issue of the extent of the obligation of
Congress to appropriate money arose with debate on the Jay
Treaty, the first treaty concluded under the Constitution. In
the 1796 debates on appropriations for the treaty, Treasury
Secretary Hamilton argued that as treaties are the law of the
land, Congress was obligated to appropriate the money to
implement them. Members of Congress, notably James Madison,
maintained that the House was free to decide whether or not to
approve appropriations regardless of any treaty obligations.
The House eventually approved the request for funds, but
appended to its approval a stipulation that it was free not to
approve such requests in the future.\58\ The House manual notes
subsequent occasions when the House maintained the position
that a treaty must depend on a law for its execution of
stipulations that relate to subjects constitutionally entrusted
to Congress.\59\
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\57\ Article I, Section 9 of the U.S. Constitution provides that
``no money shall be drawn from the Treasury, but in consequence of
appropriations made by law.''
\58\ Byrd, Elbert M. Jr. Treaties and Executive Agreements in the
United States: Their Separate Roles and Limitations. 1960, pp. 35-39.
\59\ U.S. Congress. House. Constitution, Jefferson's Manual, and
Rules of the House of Representatives of the United States. H.R. Doc.
104-272, Sec. 596, 104th Cong., 2d Sess.
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Although the Congress has usually insisted on the right of
choice not to appropriate funds to implement a perfected
treaty, historically the funds have generally been forthcoming.
Exceptions do exist, however, notably past congressional
reluctance to appropriate the full amounts of money assessed
for U.S. contributions to the United Nations.\60\
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\60\ See generally Bite, Vita. U.S. Withholding and Arrearages to
the United Nations Regular Budget: Issues for Congress. Congressional
Research Service Report 91-515F, June 19, 1991; and Bite, Vita. U.N.
System Funding: Congressional Issues. Congressional Research Service
Issue Brief for Congress IB86116 (updated December 14, 2000).
---------------------------------------------------------------------------
The extent of congressional obligation to implement a
treaty under U.S. law has not been resolved in principle.\61\
According to an often-cited authority, Congress has generally
responded ``to a sense of duty to carry out what the treaty-
makers promised, to a reluctance to defy and confront the
President (especially after he can no longer retreat), to an
unwillingness to make the U.S. system appear undependable, even
ludicrous. But the independence of the legislative power
(subject only to the Presidential veto as provided in the
constitution) has given Congress opportunities to interpret the
need for implementation and to shape and limit it in important
details; Congress has not always given the President exactly
the laws he asked for or as much money as he said a treaty
required.'' \62\
---------------------------------------------------------------------------
\61\ Henkin, Louis. Foreign Affairs and the United States
Constitution. 2d ed. 1996, p. 205 (hereafter cited as Henkin). However,
failure to implement an internationally perfected treaty would
constitute a violation of obligations assumed by the United States
under international law. See Memorandum of April 12, 1976, by Monroe
Leigh, Legal Adviser, Department of State, as quoted in U.S. Department
of State. Digest of U.S. Practice in International Law 1976. 1977, p.
221.
\62\ Henkin, pp. 205-206.
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With regard to funding U.S. international obligations,
Congress, since 1971, has made a number of cuts in
appropriations for the multilateral development banks. In 1971,
the administration requested $912.85 million and received only
$455 million. Although the level of such cuts has varied, they
have occurred consistently on an annual basis. For fiscal year
1993, the administration requested $1,785.5 million, the
Congress appropriated only $1,583.5 million.\63\ This included
contributions which were less than the administration had
requested for some multilateral programs and more than the
administration had requested for others.\64\
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\63\ Public Law 102-266, signed April 2, 1992. For a table and
breakdown of the cuts see Sanford, Jonathan E. U.S. Foreign Policy and
Multilateral Development Banks. 1982, pp. 126-129 (hereafter cited as
Sanford 1982).
\64\ See Sanford, Jonathan E. Multilateral Development Banks: U.S.
Contributions FY 1990-2001. CRS Report for Congress RS 20792.
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Among other things, these events may be seen as evidence of
the Congress' desire to make clear its right and power to
specify commitment levels and to make appropriations cuts even
after approving international agreements.\65\ For example, in
1974 Congress enacted legislation authorizing the Secretary of
the Treasury ``to pledge on behalf of the United States to
pay'' $1.5 billion in four equal annual installments, as the
U.S. share of the fourth replenishment to the International
Development Association. In a letter to Treasury Secretary
William Simon, however, the Senate Appropriations Committee
stressed that Congress ``was not committed to any given funding
level until that figure is actually appropriated.'' After the
administration nonetheless filed papers with the World Bank
formally committing the United States to an agreement to pay
this amount,\66\ Congress responded by cutting by $55 million
the first U.S. payment to the International Development
Association in what reportedly was an attempt by Congress to
make clear its dissatisfaction over the commitment issue.\67\
Beginning in 1977, Congress had stipulated in its authorization
acts that the U.S. Government could not make any formal
commitment until the necessary appropriations legislation was
enacted. As a recent example, Congress in 1997 required the
Secretary of the Treasury to obtain the appropriation prior to
making final commitment for the contribution to the financial
institution for its eleventh replenishment on behalf of the
United States.\68\
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\65\ For a discussion of the commitment issue generally, see
Sanford 1982, pp. 152-179.
\66\ Sanford 1982, p. 171. For the text of the Appropriations
Committee letter, see U.S. Senate. Foreign Assistance and Related
Programs Appropriation Bill, 1976. S. Rept. 94-704, 94th Cong., 2d
Sess., 1976, pp. 165-167.
\67\ U.S. Congress, House, Foreign Assistance and Related Programs
Appropriations Bill, 1976, H. Rept. 94-857, 94th Cong., 2d Sess., 1976,
pp. 50-51. The last portion of the $55 million was ultimately restored
in fiscal year 1981, well after the schedule provided for in the
original commitment.
\68\ Public Law 105-118, Sec. 560(a), 111 Stat. 2425, 22 U.S.C.
Sec. 284s note (Supp. IV 1999). In 1999, however, Congress, without
using the appropriations condition employed in earlier years,
authorized the Secretary of the Treasury, in order ``to fulfill
commitments of the United States * * * [to] contribute on behalf of the
United States * * * to the twelfth replenishment of the International
Development Association''; at the same time, Congress authorized an
appropriation of $2.41 billion for this purpose. Public Law 106-113,
Appendix B--H.R. 3422, Sec. 594, 113 Stat. 1501A-122. In 1998, Congress
added an appropriations condition to authority granted to the United
States Governor of the International Monetary Fund to consent to an
increase in the U.S. quota in the Fund equivalent to 10,622,500,000
Special Drawing Rights. 22 U.S.C. Sec. 286e-1m (Supp. IV 1999), as
added by Public Law 105-277, Div. A, Sec. 101(d) [title VI, Sec. 608],
112 Stat. 2681-224.
---------------------------------------------------------------------------
The Senate may also use its advice and consent to a treaty
as an opportunity to make clear that appropriation of funds
will be made subject to the appropriations process on a year-
to-year schedule. In the case of the Treaty of Friendship and
Cooperation Between the United States and Spain,\69\ the
President had promised security assistance to Spain over a 5-
year period in exchange for U.S. base rights. The Senate,
however, conditioned its advice and consent to the treaty on a
declaration intended to emphasize that appropriation of the
promised funds could only be done by statutory authorization
and not by treaty alone.\70\ The pertinent language of the
Senate declaration involved reads:
---------------------------------------------------------------------------
\69\ Treaty of Friendship and Cooperation between the United States
and Spain, signed Jan. 24, 1976, entered into force Sept. 21, 1976, 27
U.S.T. 3005, TIAS 8360.
\70\ U.S. Congress, Senate, Treaty of Friendship and Cooperation
with Spain, S. Exec. Rept. 94-25, 94th Cong., 2d Sess., p. 7. The
language in this report specified that the committee intends ``to make
it clear that funds will be made available to carry out the Treaty from
year to year through the normal appropriations process, including prior
authorizations procedures'' and * * * ``intends to deal with funding of
the Treaty commitments for foreign assistance and military sales in the
regular foreign assistance authorization and appropriation and
legislation.'' Excerpts from the committee report are also found in
U.S. Department of State. Digest of United States Practice in
International Law 1976. 1977, pp. 232-233.
---------------------------------------------------------------------------
the sums referred to in * * * the Treaty, shall be made
available for obligation through the normal procedures
of the Congress, including the process of prior
authorization, and annual appropriations shall be
provided to Spain in accordance with the provisions of
foreign assistance and related legislation.\71\
---------------------------------------------------------------------------
\71\ See S. Exec. Rept. 94-25, and Digest of United States Practice
in International Law 1976. 1977, p. 232.
Congress, in the exercise of its appropriation power, can
also earmark funds for a specific purpose, thereby preventing
their use for other purposes. The record suggests, however,
that this has often been held impermissible under the rules of
multilateral agencies. One example involving funds to implement
a treaty is found in the 1975 fiscal year appropriations for
the Inter-American Development Bank. In that year, Congress
earmarked $50 million of the bank's concessional aid
specifically for loans to cooperative institutions. The bank,
however, refused to accept the funds on the ground that its
charter prohibits acceptance of conditional contributions to
its regular loan accounts. Congress subsequently rescinded the
earmarking requirements in its 1976 fiscal year appropriations
legislation.\72\ In another instance, legislation in October
1978 prohibited the use of U.S. assessed contributions to the
United Nations for financing of technical assistance to other
countries.\73\ President Carter, when signing the bill into
law, voiced a strong opposition to those restrictions saying
that ``if allowed to stand, this [congressional] action would
cause the United States to violate its treaty obligations to
support the organizations of the United Nations system.'' \74\
---------------------------------------------------------------------------
\72\ U.S. Congress. Senate. Foreign Assistance and Related Agencies
Appropriations Bill, 1975. S. Rept. 94-39, 94th Cong., 1st Sess., 1975,
pp. 151-155 and U.S. Congress. Senate, Foreign Assistance and Related
Agencies Appropriations Bill, 1976. S. Rept. 94-704, 94th Cong., 2d
Sess. 1976, pp. 161-162. See also Sanford, Jonathan. U.S. Policy toward
the Multilateral Development Banks: The Role of Congress. George
Washington Journal of International Law and Economics, v. 22, 1988, pp.
49-57.
\73\ The Department of State, Justice and Commerce, the Judiciary,
and Related Agencies Appropriations Act, 1979, Public Law 95-431, 92
Stat. 1021.
\74\ For the text of the President's statements, see U.S.
Department of State. Digest of United States Practice in International
Law 1978. pp. 136-137.
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Another method by which Congress has attempted to use the
appropriations power to influence treaty implementation is
through sense of the Congress resolutions. Congress has used
such resolutions to indicate its views about reasonable funding
required to give effect to a treaty. In 1977 and 1978, Congress
passed legislation specifying the U.S. share in future
multilateral development bank funding plans.\75\ In such
instances, by specifying in advance the limits of its intent to
commit funds, the Congress hoped to reduce the possibility of
future congressional-executive branch friction over the issue.
---------------------------------------------------------------------------
\75\ See Foreign Assistance and Related Programs Appropriations
Act, 1978, Public Law 95-148, 91 Stat. 1238, for the sense of the
Senate on future U.S. contributions to the international financial
institutions. (22 U.S.C. 262c note). See Foreign Assistance and Related
Programs Appropriations Act, 1979, Public Law 95-481, 92 Stat. 1591,
for the sense of the Congress on such funding. Note that it is not
unusual for the executive branch to negotiate and sign agreements
``subject to the availability of funds.''
---------------------------------------------------------------------------
More recently, Congress has called for legislative-
executive consultation prior to and during international
negotiations leading up to agreements involving funds. In 1981,
Congress added Title XII to the International Financial
Institutions Act, which states:
Title XII--Congressional Consultations \76\
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\76\ 22 U.S.C. 262g-3. International Financial Institutions Act,
Public Law 95-118, as amended. Title XII was added by sec. 1361(b) of
Public Law 97-35.
---------------------------------------------------------------------------
Sec. 1201. The Secretary of the Treasury or his
designee shall consult with the Chairman and the
Ranking Minority Member of--
(1) the Committee on Banking, Finance, and
Urban Affairs of the House of Representatives,
the Committee on Appropriations of the House of
Representatives, and the appropriate
subcommittee of each such committee, and
(2) the Committee on Foreign Relations of the
Senate, the Committee on Appropriations of the
Senate, and the appropriate subcommittee of
each such committee, for the purpose of
discussing the position of the executive branch
and the views of the Congress with respect to
any international negotiations being held to
consider future replenishments or capital
expansions of any multilateral development bank
which may involve an increased contribution or
subscription by the United States. Such
consultation shall be made (A) not later than
30 days before the initiation of such
international negotiations, (B) during the
period in which such negotiations are being
held, in a frequent and timely manner, and (C)
before a session of such negotiations is held
at which the United States representatives may
agree to such a replenishment or capital
expansion.
Similarly, the Foreign Operations Appropriation Act for
Fiscal Year 1993 called for consultation prior to negotiations
of agreements on funding multilateral financial institutions,
stating the following:
Prior Consultations on IFI Replenishments \77\
---------------------------------------------------------------------------
\77\ Foreign Operations, Export Financing, and Related Programs
Appropriations Act, 1993, Public Law 102-391.
---------------------------------------------------------------------------
Sec. 537. Prior to entering into formal negotiations
on any replenishment for any international financial
institution or multilateral development bank, the
Secretary of the Treasury shall consult with the
Committees on Appropriations and appropriate
authorizing committees on the United States position
entering those negotiations.
IX. AMENDMENT OR MODIFICATION, EXTENSION, SUSPENSION, AND TERMINATION
OF TREATIES AND OTHER INTERNATIONAL AGREEMENTS \1\
---------------------------------------------------------------------------
\1\ Prepared by David M. Ackerman, Legislative Attorney.
---------------------------------------------------------------------------
----------
A. Introduction \2\
---------------------------------------------------------------------------
\2\ In determining the legal framework governing the subjects of
this chapter, considerable reliance has been placed on the Vienna
Convention on the Law of Treaties and the American Law Institute's
Restatement (Third) of the Foreign Relations Law of the United States
(1987). Some use has also been made of the edition of the Restatement
published in 1965 and, on occasion, a tentative draft Restatement which
contained the ALI's study drafts leading up to the revisions that
appear in the Restatement (Third). Other major sources of information
have been the various editions of the Department of State's Digest of
International Law, notably the Hackworth, Whiteman, and Nash (Leich)
editions, supplemented by the annual volumes that appeared from 1973-
1980 and the post-1988 notes on the ``Contemporary Practice of the
United States Relating to International Law'' that appear in the
quarterly American Journal of International Law. Reference has also
been made to such treatises as Butler, Charles Henry. The Treaty-Making
Power of the United States Senate. New York. The Banks Law Publishing
Company, 1902; Crandall, Samuel B. Treaties: Their Making and
Enforcement. Washington, D.C., John Byrne & Company, 1916; and Henkin,
Louis. Foreign Affairs and the United States Constitution (2d ed.).
Oxford. Clarendon Press, 1996. The Senate Foreign Relations Committee's
biennial reports of its legislative activities have in recent years
also provided helpful information with respect to legislative,
principally Senate, developments. For summaries of the committee's
activities in the 101st, 102d, 103d, and 104th Congresses, see S. Rept.
102-30 (1991); S. Rept. 103-35 (1993); S. Rept. 104-21 (1995); and S.
Rept. 105-8 (1997), respectively.
---------------------------------------------------------------------------
The Constitution in clear and unmistakable terms settles
only three matters with respect to treaties: \3\ it establishes
the treaty power and identifies the treatymaking principals;
\4\ it provides that self-executing treaties together with the
Constitution and Federal laws constitute the supreme law of the
land; \5\ and it withholds from the several states of the
United States authority to enter into any treaty.\6\ On a whole
range of concerns affecting the subject of treaties, including
amendment or modification, extension, suspension, and
termination, the Constitution is silent. More than 200 years of
practice and judicial decisions have filled some of the
mentioned and other gaps,\7\ but a number of treaty-related
issues persist without definitive resolution.
---------------------------------------------------------------------------
\3\ International law does not distinguish between agreements
designated as treaties and other international agreements; all such
agreements are denominated as treaties. In domestic law, however, the
word ``treaty'' means an international agreement made by the President
with the advice and consent of the Senate, two-thirds of the Senators
present concurring. Other international agreements, also from a purely
domestic perspective, include executive agreements pursuant to treaty,
congressionally-authorized executive agreements, and sole executive
agreements or executive agreements more or less exclusively based on
Presidential powers. See Chapters III and IV.
\4\ Article II, sec. 2, Clause 2.
\5\ Article VI, sec. 2.
\6\ Article I, sec. 10, Clause 1.
\7\ For example, a treaty may not appropriate funds. Turner v.
American Baptist Missionary Union, 24 F. Cas. 344 (No. 14, 251) (C.C.
Mich. 1852). A treaty may not enact criminal law. Compare United States
v. Hudson & Goodwin, 7 Cranch (11 U.S.) 32 (1812); United States v.
Coolidge, 1 Wheat. (14 U.S.) 415 (1816); cf. The Estrella, 4 Wheat. (17
U.S.) 298 (1819).
---------------------------------------------------------------------------
Neither the records of the Proceedings at the
Constitutional Convention \8\ nor those of the ratifying
conventions in the states \9\ indicate the reasons for these
glaring omissions. It may be, as one commentator has suggested
in discussing treaty termination, that ``perhaps the Framers
were concerned only to check the President in `entangling' the
United States; `disentangling' is less risky and may have to be
done quickly, and is often done piecemeal, or ad hoc, by
various means and acts.'' \10\
---------------------------------------------------------------------------
\8\ See, generally, Farrand, Max. The Records of Convention of 1787
(4 vols.), Yale University Press (1966).
\9\ See, generally, Elliot, Jonathan. The Debates in the Several
State Conventions on the Adoption of the Federal Constitution (5
vols.), Burt Franklin, New York (1888 ed.)
\10\ Henkin, Louis. Foreign Affairs and the United States
Constitution (2d ed.), Clarendon Press (1996), p. 212 (hereafter cited
as Henkin).
---------------------------------------------------------------------------
The constitutional treatment of other kinds of
international agreements, designated executive agreements, is
even more sparse than that of treaties. The Constitution does
not expressly authorize the making of international agreements
other than treaties, but executive agreements on a variety of
subjects and of varying degrees of importance have been common
from the earliest of times under the Constitution.\11\
---------------------------------------------------------------------------
\11\ See Chapters III and IV.
---------------------------------------------------------------------------
Although these domestic legal matters are of more than
passing interest, they have not prevented the United States
from amending or modifying, extending, suspending, and
terminating international agreements. As a state in the
international community of states, the United States is subject
to international law, the law that governs relations between
states.\12\ Accordingly, the United States, constitutional
silence notwithstanding, is invested with powers which belong
to all independent nations. In a celebrated passage from a
landmark Supreme Court decision, this idea was expressed as
follows:
---------------------------------------------------------------------------
\12\ American Law Institute, Restatement (Third) of the Foreign
Relations Law of the United States, vol. 1, American Law Institute
Publishers (1987), Sec. 1 (hereafter cited as Restatement (Third) or
Rest. 3d).
---------------------------------------------------------------------------
It results that the investment of the Federal
government with the powers of external sovereignty did
not depend upon the affirmative grants of the
Constitution. The powers to declare and wage war, to
conclude peace, to make treaties, to maintain
diplomatic relations with other sovereignties, if they
had never been mentioned in the Constitution, would
have vested in the Federal government as necessary
concomitants of nationality. * * * As a member of the
family of nations, the right and power of the United
States in that field are equal to the right and power
of other members of the international family.
Otherwise, the United States is not completely
sovereign. The power to acquire territory by
discovery and occupation * * *, the power to expel
undesirable aliens * * *, the power to make such
international agreements as do not constitute treaties
in the constitutional sense * * *, none of which is
expressly affirmed by the Constitution, nevertheless
exist as inherently inseparable from the conception of
nationality. This the court recognized, and * * * found
the warrant for its conclusions not in the provisions
of the Constitution, but in the law of nations.\13\
---------------------------------------------------------------------------
\13\ United States v. Curtiss-Wright Export Corp., 299 U.S. 304,
318 (1936) (emphasis added).
As a general rule, international law and domestic law
regarding the amendment or modification, extension, suspension,
and termination of treaties and other international agreements
are in substantial harmony. International law recognizes the
power to accomplish each of these ends in the proper
circumstances and allows and accommodates adherence to domestic
legal procedures relating to the manner of their execution.
However, as the fundamental rule of treaties is that they are
to be observed,\14\ provisions of internal law are generally
not available as a justification for the failure of a party to
carry out a treaty.\15\
---------------------------------------------------------------------------
\14\ Pacta sunt servanda or ``agreements must be kept'' is a
fundamental rule of international law. Article 26 of the Vienna
Convention on the Law of Treaties, Senate. Ex. L, 92d Cong., 1st Sess.
(April 24, 1970), states the rule as follows: ``Every treaty in force
is binding upon the parties to it and must be performed by them in good
faith.''
\15\ With regard to internal law and the observance of treaties,
Article 27 of the Vienna Convention on the Law of Treaties provides, in
part, as follows: ``A party may not invoke the provisions of its
internal law as justification for its failure to perform a treaty.''
However, an exception is allowed under Article 46 of the Convention in
one specific circumstance, namely, where the violation of internal law
``was manifest and concerned a rule of * * * internal law of
fundamental importance.''
---------------------------------------------------------------------------
It can be argued that amendment or modification, extension,
suspension, and termination of a treaty are essentially the
forging of new agreements and that, therefore, each is subject
to the same rules as apply to the making of a treaty, that is,
conjoint action by the President and the Senate. However, that
conclusion is not established by an unbroken line of consistent
practice. By and large the participation of the Senate with
respect to amendment or modification and extension of treaties
seems fairly well established; suspension seems largely left to
Presidential determination; termination has happened in such a
variety of ways that it has been said that ``[n]o settled rule
or procedure has been followed.'' \16\ But even the supposed
iron-clad domestic rule that the amendment or modification of a
treaty has to be accomplished by an instrument of equal dignity
which is subject to Senate approval has been departed from on
at least a pair of notable occasions. ``For example, both the
Italian and Japanese peace treaties have been altered by
executive agreements not subject to Senate approval.'' \17\
Moreover, to the extent that congressionally-authorized
executive agreements have become the legal equivalent of
treaties,\18\ it can be contended that the amendment or
modification and extension of a treaty could be accomplished by
such an executive agreement, although this does not appear to
have happened in practice.
---------------------------------------------------------------------------
\16\ Whiteman, Marjorie. Digest of International Law, 1970. v. 14,
460 (hereafter cited as 14 Whiteman). Compare S. Rept. 97, 34th Cong.,
1st Sess. See, generally, U.S. Congress. Senate. Committee on Foreign
Relations. Termination of Treaties: The Constitutional Allocation of
Power. Committee Print. 95th Cong., 2d Sess. (1978).
\17\ U.S. Congress. Senate. Committee on Foreign Relations.
International Agreements: An Analysis of Executive Regulations and
Practices. Committee Print. 95th Cong., 1st Sess., 10, n. 16 (1977).
\18\ Rest. 3d, supra, note 12, Sec. 303, Comment e, p. 161: ``The
prevailing view is that the Congressional-Executive agreement can be
used as an alternative to the treaty method in every instance.''
---------------------------------------------------------------------------
Judged as a purely domestic legal matter, the amendment or
modification, extension, suspension, and termination of an
executive agreement concluded by the President can be
accomplished by the President alone.\19\ This conclusion seems
to be invariably true in the case of executive agreements
concluded by virtue of exclusive Presidential authority and
frequently but not always true with respect to executive
agreements authorized by statute or treaty.\20\ In the two last
mentioned circumstances, the authorizing statute or treaty may
conceivably condition amendment or modification, extension,
suspension, and termination on senatorial or congressional
approval.\21\
---------------------------------------------------------------------------
\19\ Ibid., Sec. 339, Reporters' Note 2.
\20\ ``No one has questioned the President's authority to terminate
sole executive agreements. Where the Constitution lodges the power to
terminate * * * a congressional-executive agreement has been an issue
at various times in the history of the United States. Practice has
varied, the President sometimes terminating an agreement on his own
authority, sometimes when requested to do so by Congress or by the
Senate alone.'' Ibid. See also Hackworth, Green Haywood. Digest of
International Law, 1927. v. V, p. 429 (hereafter cited as V Hackworth).
\21\ ``Congress could impose such a condition in authorizing the
President to conclude an agreement that depended on Congressional
authority.'' Restatement of the Law: Foreign Relations Law of the
United States (Revised) (Tentative Draft No. 1, 1980), p. 193
(hereafter cited as Draft Restatement).
---------------------------------------------------------------------------
Finally, treaties and executive agreements generally may
both be superseded by an act of Congress in so far as their
domestic consequences are concerned.\22\ However, legislation
alone does not affect the international obligation of the
United States under a treaty or executive agreement.
---------------------------------------------------------------------------
\22\ Head Money Cases, 112 U.S. 580 (1884); Whitney v. Robertson,
124 U.S. 581 (1888); The Chinese Exclusion Case, 130 U.S. 581 (1889).
The fact that this results in a violation of international law by the
United States does not appear to be of any constitutional significance.
Henkin, supra, note 2, p. 485, note 130.
---------------------------------------------------------------------------
Several post-World War II developments have impacted the
Senate's role with respect to international agreements. One of
these developments has been the shift to executive agreements
and away from treaties, a subject documented elsewhere in this
volume. That shift, arguably, has diminished the role of the
Senate and given greater prominence to Presidential initiative
and, in the case of congressionally-authorized executive
agreements, to the House of Representatives. As previously
noted, executive agreements have been used in at least two
instances to modify treaties.
The emergence and growth in multiparty or multilateral
international agreements seems also to have had a decided
impact on Senate consideration of amendments and modifications.
For instance, in discussing other countries' reservations to
treaties with the United States at a time when bilateral
treaties were the norm, the Solicitor of the Department of
State wrote some years ago that ``[i]f after the ratification
of an international treaty, by the United States, this
Government should be asked to agree to reservations on the part
of some other nation, I think that the Executive could not give
such agreement without the consent of the Senate.'' \23\ But
that does not appear to be the case with respect to
reservations to multilateral agreements. ``[I]n 1966, the
Office of the Legal Adviser to the Department of State asserted
flatly that since 1946 not a single reservation to a
multilateral treaty had been submitted to the Senate for
approval.'' \24\ The Restatement (Third) similarly observes:
---------------------------------------------------------------------------
\23\ Wildhaber, Luzius. Treaty-Making Power and the Constitution.
Basel and Stattgart, Helbing & Lichtenhahn, 1971, p. 67.
\24\ Ibid.
---------------------------------------------------------------------------
If another party formulates a reservation to a treaty
to which the United States is a party, the reservation
cannot become effective as to the United States,
through acceptance or failure to object, unless the
Senate has given its consent. In multilateral
agreements, however, the Executive Branch has developed
the practice of accepting or acquiescing in
reservations by another state, entered after United
States adherence to the treaty, without seeking Senate
consent * * *.\25\
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\25\ Rest. 3d, supra, note 12, Sec. 314, Comment c.
This practice is due, perhaps, to the large number of
signatories frequently involved in multilateral agreements and
the sometimes technical and complex nature of their subject
matter.
A related practice that has begun to occur with increasing
frequency is the inclusion in some multilateral agreements of
provisions barring reservations.\26\ The Senate Committee on
Foreign Relations has protested that no-reservations clauses
intrude on the Senate's constitutional prerogatives but,
nonetheless, has given its advice and consent to a number of
such treaties.\27\
---------------------------------------------------------------------------
\26\ See, for example, Article 24 of the United Nations Framework
Convention on Climate Change, TIAS ____ (1994); Article 24 of the
Protocol on Environmental Protection to the Antarctic Treaty, TIAS ____
(1998); Article 25 of the Kyoto Protocol to the United Nations
Framework Convention on Climate Change, FCCC/CP/L.7/Add.1 (1997) (not
yet submitted to the Senate); Article 18 of the Vienna Convention for
the Protection of the Ozone Layer, TIAS 11097 (1988); Article 309 of
the United Nations Convention on the Law of the Sea, Tr. Doc. 103-39
(submitted to the Senate on October 7, 1994); Article 10 of the South
Pacific Regional Environment Programme Agreement, Tr. Doc. 105-32
(November 7, 1997); United Nations Convention To Combat Desertification
in Countries Experiencing Drought, Particularly in Africa, With
Annexes, Tr. Doc. 104-29 (approved by the Senate on October 18, 2000);
and Article 23 of the Inter-American Convention on Sea Turtles, Tr.
Doc. 105-48 (approved by the Senate on September 20, 2000).
\27\ The Senate Committee on Foreign Relations has generally voiced
its objection to no-reservations clauses in its reports on the treaties
which contain them. Typical is its report recommending Senate advice
and consent to the Protocol on Environmental Protection to the
Antarctic Treaty, which stated as follows: ``* * * [T]he Senate's
approval of these treaties should not be construed as a precedent for
such clauses in future agreements with other nations requiring the
Senate's advice and consent * * *. The President's agreement to such a
prohibition can not constrain the Senate's advice and consent to a
treaty subject to any reservation it might determine is required by the
national interest.'' S. Exec. Rept. 102-54 (September 22, 1992), at 7.
More recently, however, the committee has expressed its objection
in the form of declarations included in the Senate's resolutions of
ratification. A declaration in the resolution of ratification on the
Inter-American Convention on Sea Turtles, which was approved by the
Senate on September 20, 2000, stated as follows: ``* * * [I]t is the
sense of the Senate that this `no reservations' provision has the
effect of inhibiting the Senate in its exercise of its constitutional
duty to give advice and consent to ratification of a treaty, and the
Senate's approval of these treaties should not be construed as a
precedent for acquiescence to future treaties containing such
provisions.'' S. Exec. Rept. 106-18 (September 5, 2000), at 5.
The Senate had previously included a similar declaration in its
resolution of ratification on the United Nations Convention Relating to
the Conservation and Management of Straddling Fish Stocks and Highly
Migratory Fish Stocks when it gave its advice and consent to the
convention on June 27, 1996. See 142 Congressional Record, June 27,
1996, p. S7210 (daily ed.). The Senate also included a sense of the
Senate declaration in its resolution of ratification on the CWC,
approved on April 24, 1997, which stated as follows: ``SENSE OF THE
SENATE.--It is the sense of the Senate that--(i) the advice and consent
given by the Senate in the past to ratification of treaties containing
provisions which prohibit amendments or reservations should not be
construed as a precedent for such provisions in future treaties; (ii)
United States negotiators to a treaty should not agree to any provision
that has the effect of inhibiting the Senate from attaching
reservations or offering amendments to the treaty; and (iii) the Senate
should not consent in the future to any article or other provision of
any treaty that would prohibit the Senate from giving its advice and
consent to ratification of the treaty subject to amendment or
reservation.'' 143 Congressional Record, April 24, 1997, p. S3656
(daily ed.).
---------------------------------------------------------------------------
Another development that has had implications for the
Senate's role with respect to multilateral agreements is the
evolving practice of tacit amendment. The practice takes
various forms--Presidential acquiescence, nonsubmission of
reservations by other parties, implementing bodies with the
authority to make changes, and amendment by fewer than all of
the parties--and has not escaped the Senate Foreign Relations
Committee's attention. The committee has at times sought to
establish some rough ground rules to ensure committee oversight
of such practices (as distinguished from formal Senate approval
by two-thirds vote) while not unduly delaying the amending
process.\28\ But the practice developed under these ground
rules and committee experience associated with them apparently
have not been rigorously analyzed.
---------------------------------------------------------------------------
\28\ S. Exec. Rept. 96-36, 96th Cong., 2d Sess. (1980), p. 2. See
also discussion of tacit acceptance of reservations in Chapter VII.
---------------------------------------------------------------------------
Thus, theory and past practice regarding the necessity for
conjoint action by the President and the Senate on treaty-
related matters are not always clear or consistent. As the
Senate Committee on Foreign Relations indicated in 1979, these
developments are largely the result of expediency and the press
of time and circumstances.\29\ They also illustrate once again
that
---------------------------------------------------------------------------
\29\ S. Rept. 96-119, 96th Cong., 1st Sess. (1979), p. 5.
---------------------------------------------------------------------------
The actual art of governing under our Constitution
does not and cannot conform to * * * definitions * * *
based on isolated clauses or even single Articles torn
from context.\30\ * * * [I]t is doubtless both futile
and perhaps dangerous to find any epigrammatical
explanation of how this country has been governed.\31\
---------------------------------------------------------------------------
\30\ Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635
(1952) (Jackson, J., concurring).
\31\ Dames & Moore v. Regan, 453 U.S. 654, 660 (1981).
---------------------------------------------------------------------------
B. Amendment and Modification \32\
---------------------------------------------------------------------------
\32\ The Vienna Convention on the Law of Treaties uses the word
``amendment'' to denote changes in an international agreement
applicable to all of the parties and the word ``modification'' to refer
to changes in an international agreement applicable to only some of the
parties. Arts. 40 and 41. The distinction has implications only with
respect to multilateral agreements, not bilateral ones.
---------------------------------------------------------------------------
treaties
The amendment of a binding international agreement may be
accomplished in a variety of ways including, among others, in
accordance with provisions included for that purpose in the
agreement, by the consent of the parties, and by entry into
force of a new, subsequent agreement on the same subject
involving the same parties.
The inclusion in international agreements of provisions for
their modification is a fairly common practice. It reflects the
commonsense view that the conditions which prevail at the time
the parties negotiate an agreement may change and that a
procedure to adjust to new conditions is the height of prudence
and wisdom.
Amendment or modification of an international agreement by
consent of the parties is recognition of the fact that consent
is the foundation of international agreements. Accordingly, the
parties are at liberty to change an international agreement
regardless of its terms. For similar reasons a later agreement
on the same subject involving the same parties that expressly
or by implication modifies an earlier agreement will be
regarded as effecting the resulting change.
The Vienna Convention on the Law of Treaties embraces these
broad principles in Article 39 of Part IV, captioned ``General
rule regarding the amendment of treaties.'' It provides that
[a] treaty may be amended by agreement between the
parties. The rules laid down in Part II [relating,
among other things, to the conclusion of treaties]
apply to such an agreement except in so far as the
treaty may otherwise provide.
This general principle applies to the amendment of
bilateral and multilateral treaties alike.
Article 40, in turn, sets out both procedural and
substantive rules for the amendment of a multilateral treaty in
the strict Vienna Convention sense of a revision that applies
to all of the parties. Article 40 provides that, unless the
treaty in question provides otherwise, the following four
considerations apply to an amendment:
(1) Notice of any proposal to amend a multilateral
treaty as between all the parties has to be
communicated to every party, and each party has the
right to take part in the decision as to the action in
regard to the proposal and to take part in the
negotiation and conclusion of any agreement to amend
the treaty.
(2) Every state entitled to become a party to the
treaty is also entitled to become a party to the treaty
as amended.
(3) An amending agreement does not bind a party to
the treaty which does not become a party to the
amending agreement; the unamended treaty continues to
govern the mutual rights and obligations as between
parties one of which is not and one of which is bound
by the amending agreement.\33\
---------------------------------------------------------------------------
\33\ Article 40 references Article 30(4)(b), which provides that in
instances when one state is a party to both an original treaty and a
subsequent treaty that alters the first and another state is a party
only to the first treaty, their mutual rights and obligations are
governed by the treaty to which they both are parties.
---------------------------------------------------------------------------
(4) In the absence of an expression to the contrary,
a state which becomes a party after the amending
agreement has come into force is to be considered as
(a) a party to the treaty as amended and (b) a party
also to the unamended treaty in its relations with any
party which is not bound by the amending agreement.
Finally, Article 41 deals with the modification of a
multilateral treaty in the strict Vienna Convention sense of a
change that is intended to apply to fewer than all of the
parties to an international agreement. It provides that two or
more parties to a multilateral treaty inter se may modify it
and bind themselves if the treaty allows such a modification.
If the treaty does not specifically allow such a modification
but does not prohibit it, Article 41 states that a modification
of this nature is still permitted provided that the
modification does not affect the enjoyment of the rights or the
performance of obligations of the other parties to the treaty
and does not relate to a provision derogation from which is
incompatible with the effective execution of the object and
purpose of the treaty as a whole. Unless the inter se agreement
is one provided for by the treaty, the parties to it must
notify the other parties of their intention to conclude the
agreement and of the modifications for which it provides.
The Restatement (Third) states a rule for the conduct of
the United States with respect to amendment or modification of
an international agreement that is generally in conformity with
the just described international law on the subject. Section
334, thus, provides that:
(1) An international agreement may be amended by
agreement between the parties.
(2) Unless it provides otherwise, a multilateral
agreement may be amended, with effect as between those
states that become parties to the amending agreement,
if all the contracting states were given an opportunity
to take part in the negotiations and to become parties
to the agreement as amended.
(3) Two or more of the parties to a multilateral
agreement may agree to modify the agreement as between
themselves alone if such modification is provided for
by the agreement or it is not prohibited by it and
would not be incompatible with the rights of the other
parties to the agreement or with its object and
purpose.\34\
---------------------------------------------------------------------------
\34\ Rest. 3d, supra, Sec. 334.
As previously indicated, amendments or modifications to a
treaty or international agreement generally have entailed the
same procedure as the original agreement unless otherwise
specified in the original agreement. Thus, the Hackworth
edition of the Digest of International Law states that ``the
modification of [an] existing treaty * * * involves the
conjoint action of the treatymaking powers in a variety of
circumstances,'' \35\ and the Whiteman edition reiterates that
``it is a general rule that a treaty cannot be modified except
by an instrument brought into force through the treaty
processes.'' \36\ Consequently, the advice and consent of the
Senate has generally been sought for amendments to treaties.
The Whiteman edition of the Digest of International Law
describes one such instance, as follows:
---------------------------------------------------------------------------
\35\ V Hackworth, supra, p. 333.
\36\ 14 Whiteman, supra, p. 441.
---------------------------------------------------------------------------
* * * At the 29th session of the General Conference
of the International Labor Organization (ILO),
Montreal, October 9, 1946, there were adopted an
instrument for the amendment of the ILO Constitution *
* * and a Final Articles Revision Convention, 1946 * *
* In transmitting to the Congress a draft of a joint
resolution providing for acceptance of the United
States of the revised Constitution, the following
statement was made in a document accompanying the
letter from the Secretary of State:
``The Final Articles Revision Convention,
which is printed in the same document, is to be
discussed in a separate memorandum. It is
intended that this convention will be submitted
to the Senate for its advice and consent
inasmuch as its intended effect is to change
the language of conventions which have been
ratified with the advice and consent of the
Senate or are pending before that body.'' \37\
---------------------------------------------------------------------------
\37\ Ibid., pp. 59-60.
Similarly, the Senate on October 1, 1992, without fanfare
or protracted debate, gave its advice and consent to
Presidential ratification of the Strategic Arms Reduction
Treaty (START) along with an amending protocol. START, a
product of 10 years of frequently difficult negotiations
between the United States and the former Soviet Union, reduced
rather than simply placed a cap on weapons systems possessed by
the rival Cold War superpowers. Signed July 31, 1991, by
President Bush and then-Soviet President Mikhail S. Gorbachev,
the treaty became caught up in the events that led to the
dissolution of the Soviet Union and the emergence of more than
a dozen new states on its territory. Accordingly, the Bush
Administration negotiated an amendatory protocol providing that
four of the new succeeding states which had strategic offensive
weapons within their borders (Russia, Belarus, Ukraine and
Kazakhstan) would assume the former Soviet Union's obligations
under the treaty as originally drafted. The administration
submitted the protocol to the Senate, and the Senate then
approved both START and the amendatory protocol at the same
time.\38\
---------------------------------------------------------------------------
\38\ The protocol was submitted to the Senate on June 23, 1992. See
Senate Treaty Doc. 102-32, 102d Cong., 2d Sess. (1992).
---------------------------------------------------------------------------
More recently, the Senate has forcefully insisted on its
right to advise and consent on amendments to treaties. One of
the treaty issues that emerged in the aftermath of the
dissolution of the Soviet Union concerned the definition of
what states were to be deemed its successor states for purposes
of allocating its rights and obligations under the Anti-
Ballistic Missile (ABM) Treaty. After lengthy negotiations a
Memorandum of Understanding on Succession (MOUS) was concluded
in September 1997, which designated Belarus, Kazakhstan,
Russia, and Ukraine as the successor parties to the treaty and
allocated to them specified rights and obligations. The Clinton
Administration had contended that the determination of the
successor states did not constitute an amendment to the ABM
Treaty but was an exercise of the President's constitutional
prerogatives to determine state succession issues for purposes
of treaty continuity.\39\ But a number of Senators disagreed
with that perspective; and prior to the signing of the MOUS the
Senate included the following condition in its resolution of
ratification on an unrelated agreement, the Conventional Forces
in Europe Flank Document: \40\
---------------------------------------------------------------------------
\39\ See Letter from William C. Danvers, Special Assistant to the
President, to Al Gore, President of the United States Senate
transmitting the ``Report on the Livingston ABM Amendment'' (November
29, 1996), reported as filed in the Senate at 143 Congressional Record,
January 7, 1997, p. S87 (daily ed.) (No. EC 175). The Livingston
amendment, Sec. 406 of the Department of State and Related Agencies
Appropriations Act for Fiscal 1997, required the President to report to
Congress on whether the MOUS and the Agreed Statement on Demarcation
(ASD) constituted ``substantive changes'' to the ABM Treaty and whether
they ``require the advice and consent of the Senate.''
\40\ TIAS ____ (May 15, 1997).
---------------------------------------------------------------------------
(9) SENATE PREROGATIVES ON MULTILATERALIZATION OF THE
ABM TREATY.--
(A) * * *
(B) CERTIFICATION REQUIRED.--Prior to the
deposit of the United States instrument of
ratification, the President shall certify to
the Senate that he will submit for Senate
advice and consent to ratification any
international agreement--
(i) that would add one or more
countries as States Parties to the ABM
Treaty, or otherwise convert the ABM
Treaty from a bilateral treaty to a
multilateral treaty; or
(ii) that would change the geographic
scope or coverage of the ABM Treaty, or
otherwise modify the meaning of the
term ``national territory'' as used in
Article VI and Article IX of the ABM
Treaty.
(C) * * *.\41\
---------------------------------------------------------------------------
\41\ For the text of the Senate's resolution of ratification on the
CFE Flank Document, see 143 Congressional Record, May 14, 1997, p.
S4477 (daily ed.).
---------------------------------------------------------------------------
President Clinton protested that this condition invaded ``a
matter reserved to the President under the Constitution'' and
was substantively unrelated to the CFE Flank Document but,
nonetheless, certified that he would submit ``any agreement
concluded on ABM Treaty succession'' to the Senate for its
advice and consent.\42\
---------------------------------------------------------------------------
\42\ 143 Congressional Record, May 15, 1997, pp. S4587-S4588 (daily
ed.) (Report on the CFE Flank Document--Message from the President).
---------------------------------------------------------------------------
The Senate's advice and consent on the CFE Flank Document
was itself the result of Senate insistence on its prerogatives.
The 1990 Treaty on Conventional Forces in Europe (CFE) was an
arms control agreement between the 22 nations of the North
Atlantic Treaty Organization (NATO) and the Warsaw Pact placing
alliancewide, regional, and national ceilings on specific major
categories of conventional military equipment. The purpose of
the pact was to stabilize the military situation in Europe and
to reduce tensions. But the dissolution of the Warsaw Pact and
the breakup of the Soviet Union necessitated measures to adapt
the provisions of the CFE to the changed circumstances. One of
the resulting agreements was the CFE Flank Document, which
allowed Russia to maintain a higher level of certain categories
of military equipment in the Caucasus and Baltic regions of its
territory than would otherwise have been allowed. The Clinton
Administration initially sought to gain approval of the
agreement by means of a statute to be adopted by the House and
the Senate. But the Senate rebuffed that effort; and in
negotiations on whether the Senate would take up the Chemical
Weapons Convention (CWC), the Senate leadership obtained the
administration's commitment to submit the CFE Flank Document to
the Senate for its advice and consent. The administration did
so; \43\ and, as noted above, the Senate gave its approval on
May 14, 1997.
---------------------------------------------------------------------------
\43\ Treaty Doc. 105-5, 105th Cong., 1st Sess. (April 7, 1997).
---------------------------------------------------------------------------
The Clinton Administration had also sought to have another
agreement relating to the ABM Treaty approved by means of a
statute rather than by submission to the Senate for its advice
and consent. U.S. interest in developing a theater missile
defense system led the administration to pursue negotiations
with several of the successor states to the Soviet Union on a
``clarification'' of the ABM Treaty to establish a demarcation
line between ballistic missile defense systems restricted by
the treaty and theater missile defense systems that were
allowable. Ultimately the negotiations succeeded in concluding
an Agreed Statement Regarding Demarcation (ASD) in June 1996,
which was subsequently elaborated and signed by the United
States, Russia, Belarus, Kazakhstan, and the Ukraine in
September 1997.\44\ The administration agreed that the ASD
constituted a ``substantive modification of the obligations we
would otherwise have under the Treaty,'' but it contended that
the change could be approved by Congress by statute and that it
did not need to be submitted for the Senate's advice and
consent.\45\ Nonetheless, bargaining over the Senate's
willingness to consider the CWC caused the administration to
agree to submit the ASD to the Senate for its advice and
consent.\46\
---------------------------------------------------------------------------
\44\ The texts of these agreements can be found on the State
Department's Web site at www.state.gov/www/global/arms/bureau__ac/
missile.
\45\ See letter from William C. Danvers, Special Assistant to the
President, to Al Gore, President of the United States Senate, supra, n.
39, and Office of Legal Counsel, Department of Justice, ``Validity of
Congressional-Executive Agreements That Substantially Modify the United
States' Obligations Under an Existing Treaty'' (November 25, 1996).
\46\ As of November 2000, however, neither the ASD nor the MOUS had
yet been sent to the Senate.
---------------------------------------------------------------------------
Senate advice and consent may not be required, however,
when an agreement is effectively amended or modified by a later
agreement or when an act of Congress affects a treaty in some
vital regard. Thus, when the United States and another country
were parties to a bilateral treaty but then became parties to a
multilateral convention covering the same subject matter (in
part), the convention was judicially declared to modify
conflicting provisions in the bilateral agreement and to
control the proceeding.\47\ Similarly, when an earlier
convention was merely suspended by the terms of a later
agreement on the same subject, the expiration of the latter
automatically caused the former to resume operation and effect
``without further action of Congress.'' \48\ Moreover, in an
instance when an act of Congress authorized the President to
suspend the exercise of judicial functions by American
diplomatic and consular officials in Egypt, the President was
advised by the State Department that he could give ``practical
effect'' to a convention providing for termination of
extraterritorial rights in Egypt granted by previous treaties
pending formal ratification of the convention by the United
States.\49\ Likewise, when American consular officers were
authorized to exercise judicial functions by virtue both of an
act of Congress and a treaty, Secretary of State Lansing
indicated that ``the appropriate method under the American
system of Government of divesting the Consuls of this authority
is either by a repeal of the act or by conclusion of [another]
treaty * * *.'' \50\
---------------------------------------------------------------------------
\47\ Fotochrome Inc. v. Copal Company Ltd., 517 F. 2d 512 (2d Cir.
1975), note 4.
\48\ V Hackworth, supra, p. 338.
\49\ Ibid., at 341-342.
\50\ Ibid., at 334.
---------------------------------------------------------------------------
Senate advice and consent may also not be required if
treaties are amended by means of tacit agreement. While
acknowledging that ``[t]he President is * * * without
authority, except by and with the advice and consent of the
Senate, to modify a treaty provision,'' Hackworth states that
there have been ``instances in which he [the President], acting
through the Secretary of State, has tacitly acquiesced in
actions by foreign Governments which had the effect of
modifying stipulations in our treaties.'' \51\ Examples of
change in the strict terms of an international agreement by
tacit acquiescence documented by Hackworth involved
multilateral arrangements accepted by all the parties and
temporary departures during periods of abnormal conditions such
as war or pending action on a new treaty.\52\
---------------------------------------------------------------------------
\51\ Ibid., at 340.
\52\ Ibid., at 339-341.
---------------------------------------------------------------------------
Moreover, as previously noted, notwithstanding the general
rule regarding the need for Senate approval, the Department of
State in the post-World War II period has not been sending to
the Senate reservations on the part of other nations to
multilateral treaties ratified by the United States.\53\ The
Restatement (Third) takes note of the practice and concludes
with this observation:
---------------------------------------------------------------------------
\53\ See note 23 and accompanying text.
---------------------------------------------------------------------------
Constitutionally, that practice must depend on an
assumption that the Senate, aware of Executive practice
and acquiescing in it, in giving consent to the treaty
also tacitly gives its consent to later acceptance by
the Executive of reservations by other states.\54\
---------------------------------------------------------------------------
\54\ Rest. 3d, supra, Sec. 314, Comment c.
The tacit amendment process may also occur pursuant to the
explicit provisions of some treaties. Due, perhaps, to their
complexity and technical specificity, a number of arms control
and environmental agreements establish processes for their own
modification which do not require further Senate involvement.
The modifications allowed typically are described as not rising
to the level of an amendment of the treaties; but, nonetheless,
the processes permit the treaty regime to evolve in some
respects without reference to the Senate. The INF Treaty, for
instance, created a Special Verification Commission with the
authority to modify the verification procedures used under the
treaty and, in the case of the Inspections Protocol, to ``agree
upon such measures as may be necessary to improve the viability
and effectiveness of this Protocol.'' \55\ The CFE Treaty, in
turn, created a Joint Consultative Group with the authority to
agree to improvements of a technical or administrative
nature.\56\ The START agreement includes a number of provisions
that allow the Joint Compliance and Inspection Commission to
``agree upon such additional measures as may be necessary to
improve the viability and effectiveness of the Treaty.'' \57\
The United States-Japan Convention for the Protection of
Migratory Birds allows the parties to modify the list of birds
protected by diplomatic note.\58\ The Montreal Protocol on
Substances that Deplete the Ozone Layer allows the parties to
restrict the production and consumption of substances specified
in the annexes as depleting atmospheric ozone as well as the
timetable by which such adjustments must be made.\59\ Some
agreements explicitly permit modifications to become effective
for all parties even absent unanimous agreement. The Montreal
Protocol on Substances that Deplete the Ozone Layer, for
instance, encourages consensus but as a last resort allows
decisions regarding the production and consumption of ozone-
depleting substances which are binding on all parties to be
made by a two-thirds majority vote.\60\ The International
Convention on Safety of Life at Sea permits amendments to enter
into force automatically after a specified time period has
elapsed, absent objection by a quorum of parties.\61\ The U.N.
Charter, in Article 108, provides that an amendment comes into
force for all members if it is approved by two-thirds of the
members of the General Assembly and ratified by two-thirds of
the member states including all permanent members of the
Security Council.
---------------------------------------------------------------------------
\55\ INF Treaty, TIAS ____, 27 ILM 84 (1988), Articles XI and XIII.
\56\ CFE Treaty, TIAS ____, 30 ILM 1 (1991), Article XVI.
\57\ START, TIAS ____ (1994). For a description and critical
discussion of the tacit amendment processes in these and a number of
other arms control agreements, see Koplow, David A. When Is an
Amendment Not an Amendment: Modification of Arms Control Agreements
Without the Senate. University of Chicago Law Review, v. 59, 1992, p.
981.
\58\ 25 UST 3329 (1972).
\59\ TIAS ____ (1987), Article 2(9).
\60\ Ibid.
\61\ 32 UST 47 (1980), Article VIII.
---------------------------------------------------------------------------
The Senate, in giving its advice and consent to the
treaties which contain these various processes for
modification, presumably has also given its consent in advance
to the modifications adopted pursuant to those processes.
Nonetheless, the tacit amendment process has given the Senate
some concern, and it has at times requested or required the
executive branch to advise the Senate of such amendments prior
to their entry into force. In its report recommending the
approval of the Convention on the Prevention of Maritime
Pollution by Dumping of Wastes and other Matter as modified by
a 1978 protocol,\62\ the Senate Foreign Relations Committee
tried to balance the need to prevent undue delay with its
oversight responsibility. It said:
---------------------------------------------------------------------------
\62\ 26 UST 2403; TIAS 8165.
---------------------------------------------------------------------------
It should be noted that the 1973 parent convention
contains a provision (Article 16) which provides for a
tacit amendment process. The Committee recognizes the
need for an expedited process for highly technical
treaties of this nature. However, the Committee will
approve this procedure only on a case-by-case basis and
only with respect to technical provisions. The
Committee expects the Administration to inform it of
any proposed amendments subject to this procedure prior
to the time for tacit acceptance. This will enable the
Committee to voice an objection to tacit acceptance in
appropriate cases, before the issue becomes moot.\63\
---------------------------------------------------------------------------
\63\ S. Exec. Rept. 96-36, 96th Cong., 2d Sess. (1980), p. 2
(emphasis added).
While the reasons behind the committee's attempt to bridge
efficiency and presumed constitutional requirements in this
manner are readily understood, the procedure raises various
fundamental questions. Notably, whether the committee, on its
own motion, may tacitly consent for two-thirds of the Senate or
whether the Congress by law or the Senate by rule could
authorize the committee to act in this manner are unresolved
issues.\64\
---------------------------------------------------------------------------
\64\ See INS v. Chadha, 462 U.S. 919 (1983) (one house veto held
unconstitutional); Consumer Union v. FTC, 691 F. 2d 575 (D.C. Cir.
1982), affd. sub nom, Process Gas Consumers Group v. Consumer Energy
Council, 463 U.S. 1216 (1983) (two house veto held unconstitutional);
American Federation of Government Employees v. Pierce, 697 F. 2d 303
(D.C. Cir. 1982) (committee veto held unconstitutional).
---------------------------------------------------------------------------
executive agreements
As ``[t]he Constitution of the United States nowhere makes
explicit provision for the President to conclude international
agreements other than treaties,'' \65\ it follows that the
Constitution offers no guidance regarding the amendment of
executive agreements.\66\ Furthermore, authoritative texts and
secondary writings to all appearances fail to shed any
significant light on the actual practice of amending executive
agreements.
---------------------------------------------------------------------------
\65\ 14 Whiteman, supra, p. 194. See Chapter IV.
\66\ The power of the President to make executive agreements has
been recognized by the Supreme Court, United States v. Curtiss-Wright
Export Corp., 299 U.S. 304 (1936); United States v. Pink, 315 U.S. 203
(1942). ``A treaty signifies `a compact made between two or more
independent nations with a view to the public welfare.' * * * But an
international compact is not always a treaty which requires the
participation of the Senate. There are many such compacts, of which a
protocol, a modus vivendi, a postal convention, and agreements
[assigning foreign assets] * * * are illustrations.'' United States v.
Belmont, 301 U.S. at 330-331.
---------------------------------------------------------------------------
As previously noted, the general rule is that the amendment
or modification of an international agreement to which the
United States is a party is subject to the same rules as apply
to the making of an agreement. Accordingly, since agreements of
this nature concluded by the President are not submitted to the
Senate or Congress for approval, amendments to such agreements
ordinarily do not require Senate or congressional approval. It
seems clear that in the case of an executive agreement based on
the sole authority of the President, modifications to such an
agreement are a matter of Presidential discretion.\67\ As a
general matter, the same conclusion applies to modifications of
executive agreements pursuant to either a treaty or an act of
Congress.\68\ It would appear that so long as the amendment of
an executive agreement is consonant with the underlying treaty
or law which authorized the agreement in the first instance,
that is, the agreement carries out their purposes, the
President would be within his rights to make such an amendment.
---------------------------------------------------------------------------
\67\ See note 20. ``* * * the President, on his own authority, may
make an international agreement dealing with any matter that falls
within his independent powers under the Constitution.'' Rest. 3d,
supra, Sec. 303(4).
\68\ ``* * * (2) the President, with the authorization or approval
of Congress, may make an international agreement dealing with any
matter that falls within the powers of Congress and of the President
under the Constitution; (3) the President may make an international
agreement as authorized by treaty of the United States.'' Ibid.
---------------------------------------------------------------------------
However, Congress may impose limitations on agreements it
authorizes to be made.\69\ Notably in the fields of
international trade and nuclear energy Congress has authorized
the President to conclude international agreements but has
required him to submit them for congressional scrutiny and
possible disapproval.\70\ Moreover, the Senate may condition
approval of a treaty which authorizes the conclusion of an
agreement upon submission of the agreement for approval by the
Senate or Congress.\71\ Similarly, an act of Congress or treaty
could require Senate or congressional approval of amendments or
modifications to international agreements that they authorize
the President to conclude.\72\
---------------------------------------------------------------------------
\69\ Ibid., at 223.
\70\ For example, Trade Act of 1974, 88 Stat. 1982 (1975); 19
U.S.C. 2112. Nuclear Non-Proliferation Act of 1978, 92 Stat. 120
(1978); 42 U.S.C. 2153(d), 2155(b), 2157(b), and 2160(f).
\71\ ``The treaty of inter-American arbitration signed at
Washington, on January 5, 1929, was submitted to the Senate by
President Coolidge on January 26, 1929. The Senate, on January 19,
1932, advised and consented to its ratification with reservations,
which were regarded by the Executive as highly objectionable. In 1934,
President Roosevelt resubmitted the treaty to the Senate, and, in 1935,
it gave its advice and consent to ratification, without certain of the
reservations previously insisted upon, although it did so with the
understanding that the special agreements to arbitrate should, in each
instance, be subject to approval by the Senate. The President ratified
the treaty with this understanding, and the ratification was deposited
on April 16, 1935.'' V Hackworth, supra, p. 93.
``The Senate often has given its consent subject to conditions * *
* The Senate may * * * give its consent on conditions that do not
require change in the treaty but relate to domestic application, e.g.,
* * * that agreements * * * made in implementation of the treaty shall
require the Senate's advice and consent.'' Rest. 3d, supra, Sec. 303,
Comment d.
\72\ For example, Section 33 of the Arms Control and Disarmament
Act, 75 Stat. 634 (1961); 22 U.S.C. 2573, provides that no ``action''
shall be taken that obligates the United States to disarm or reduce or
limit the Armed Forces of the United States unless pursuant to treaty
or unless authorized by legislation.
---------------------------------------------------------------------------
C. Extension
treaties
The Vienna Convention on the Law of Treaties deals
implicitly rather than explicitly with the subject of treaty
extension. Extension of an international agreement to all
intents and purposes is the execution of a new agreement (or
re-execution) and, therefore, is subject to the convention's
overall requirements for treaties, including conclusion,
amendment and modification, suspension, and termination.
As an agreement to extend a treaty for many, if not most,
purposes is considered a treaty modification, general U.S.
practice is to submit an extension to the Senate for its advice
and consent. Accordingly, when France gave 6-months' notice of
termination as provided in Article VII of the Commercial
Convention of 1822 but requested tacit extension for 3-month
periods after the termination date until it was replaced by a
new treaty, the Department of State replied:
* * * [T]he Government of the United States is not in
a position to agree to the proposals * * *. The
suggestion of the French government amounts * * * in my
opinion to a proposal to modify the terms of the
treaty, a proposal which is not susceptible of
execution on the part of the Government in the manner
suggested.\73\
---------------------------------------------------------------------------
\73\ V Hackworth, supra, p. 334.
Instead, the Department proposed a new treaty modifying
Article VII to allow for termination upon 3-months' notice as
the best means of complying with the French request. The latter
accepted this suggestion and after the new agreement went into
effect, the United States and France, in an exchange of notes,
agreed that the new treaty amounted to a withdrawal of the
French notice of termination.\74\ Similar replies were given to
requests for postponement of termination of treaties made by
Norway, Spain, and Greece.\75\
---------------------------------------------------------------------------
\74\ Ibid., p. 335.
\75\ Ibid.
---------------------------------------------------------------------------
Similarly, when Italy proposed that commissioners acting
under a treaty serve indefinite terms rather than the 5-year
term established in the treaty, the Department of State replied
that this change could not be made by an exchange of notes but
would require a new treaty.\76\ In like manner, when the United
States and Canada agreed to depart from a 1909 treaty
concerning the diversion of boundary waters in the Niagara
River to permit an additional diversion for power purposes, the
exchange of notes stated that the agreement would be effective
``when approved by the Senate.'' \77\ ``The Senate of the
United States advised ratification on June 2, 1941, and the
President `approved' the arrangement on June 13.'' \78\
---------------------------------------------------------------------------
\76\ Ibid.
\77\ Ibid.
\78\ Ibid., p. 336.
---------------------------------------------------------------------------
The extension of commodity agreements--agreements
establishing the framework for international cooperation in
wheat, coffee, tin, and sugar--are routinely submitted to the
Senate. The International Wheat Agreement of 1971, which was
replaced in 1988 by a 1986 successor, was extended on more than
half a dozen occasions.\79\ In 1981 the Senate gave its advice
and consent to an 8-month extension of the rights, duties, and
obligations of the parties under the Treaty of Friendship and
Cooperation of January 24, 1976, between the United States and
Spain. The temporary extension, among other things, preserved
in force U.S. access to and use of military facilities in Spain
pending negotiation of a successor agreement to the 1976 treaty
and Spain's accession to the North Atlantic Treaty.\80\
---------------------------------------------------------------------------
\79\ Treaty Doc. 97-9, p. v (1981); S. Exec. Rept. 100-10, 100th
Cong., 1st Sess. (1987), p. 12. The 1986 agreement provided for 2-year
extensions on the basis of the mutual consent of the participating
countries without resort to formal ratification procedures. Ibid., p.
20.
\80\ Treaty Doc. 97-20, 97th Cong., 1st Sess. (1981), p. 1.
---------------------------------------------------------------------------
However, the extension of times for the organization of
commissions called for by various treaties was in one instance
accomplished by an exchange of notes and in another by
agreement of the members of the commission.\81\
---------------------------------------------------------------------------
\81\ V Hackworth, supra, p. 337.
---------------------------------------------------------------------------
The role of the Senate with respect to the extension or
enlargement of a treaty in terms of geographic scope and
parties eligible to adhere seems to depend on the nature of the
treaty. In the case of treaties providing for regional or
collective self defense arrangements, the Senate has been
insistent that its approval is required for the addition of new
members. Whiteman provides the following relevant
illustrations:
The Senate Committee on Foreign Relations, in its
report of June 6, 1949, recommending advice and consent
to ratification of the [North Atlantic] Treaty
commented:
Inasmuch as the admission of new members
might radically alter our obligations under the
pact, the committee examined article 10 very
carefully. The question arose whether an United
States decision respecting new members would be
based solely on Presidential action or would
require Senate approval. Consequently, the
committee was fully satisfied by the commitment
of the President, delivered by the Secretary of
State, that he would consider the admission of
a new member to the pact as the conclusion of a
new treaty with that member and would seek the
advice and consent of the Senate to each such
admission. The committee considers this is an
obligation binding upon the Presidential
office.\82\
---------------------------------------------------------------------------
\82\ 14 Whiteman, supra, p. 100, quoting S. Exec. Rept. 8, 81st
Cong., 1st Sess. (1949), p. 18.
---------------------------------------------------------------------------
The report of the Foreign Relations Committee
recommending ratification of the [Southeast Asia
Collective Defense] Treaty stated:
Provision is made in three articles of the
treaty for modification of its terms by
unanimous agreement. Thus, article IV,
paragraph 1, as well as article VII,
contemplates that the treaty area may be
extended by the parties to any state or
territory `which the parties by unanimous
agreement may hereafter designate.' Article VII
refers to the accession of additional states
`by unanimous agreement of the parties.' To
avoid the possibility of any misunderstanding
on the significance of this clause, the
President informed the Senate * * * that the
provisions with respect to designation of new
territories and membership are to be construed
as requiring the Senate's advice and consent.
In other words, it is not enough that the
executive branch should acquiesce in the
addition of new members or in the modification
of the treaty area, but these matters must also
be brought before the Senate.\83\
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\83\ Ibid., p. 101, quoting S. Exec. Rept. 11, 84th Cong., 1st
Sess. (1957), pp. 11-12.
In contrast, the Senate has generally not sought or
reserved to itself any role with respect to state participation
in most other multilateral conventions, including those
establishing international organizations. The admission of new
states to the United Nations, for instance, is effected by
decision of the General Assembly upon the recommendation of the
Security Council.\84\ No review or approval by the Senate is
required.\85\
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\84\ U.N. Charter, Article 4; 59 Stat. 1031; 3 Bevans 1153.
\85\ See S. Exec. Rept. F, 79th Cong., 1st Sess. (1945).
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executive agreements
In the case of an international agreement in the form of an
executive agreement, extension does not involve the Senate or
Congress if the agreement is based on the President's exclusive
constitutional authority. But if the executive agreement is
pursuant to treaty or congressional authorization, the Senate's
consent to the treaty or Congress' authorization may specify
conditions on its extension and reserve a role for the Senate
or Congress. In the Magnuson Fishery Conservation and
Management Act of 1976, for instance, Congress directed the
Secretary of State to negotiate ``governing international
fishery agreements'' (other than treaties), specified the
conditions that they had to meet, and directed that no such
agreements be ``renewed, extended, or amended'' unless they met
the specified conditions.\86\ Subsequently, Congress by statute
approved the extension of several such agreements.\87\
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\86\ 16 U.S.C. 1822(c); Public Law 94-265, Title II, Sec. 202
(April 13, 1976); 90 Stat. 331, 340.
\87\ See, for example, Public Law 98-364, Title I, Sec. 106 (July
17, 1984) (approving the extension of the Governing International
Fishery Agreement with the European Economic Community) and Public Law
100-66, Sec. 1 (July 10, 1987) (approving the extension of the
Governing International Fishery Agreement with South Korea).
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D. Suspension \88\
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\88\ ``Suspension is distinguished from termination * * *
principally in that suspension can be revoked or terminated informally
and no new agreement is necessary to restore the agreement to full
effect. Unilateral suspension can be revoked and the agreement
reactivated unilaterally by the suspending party; suspension by
agreement of the parties can be ended and the agreement restored by
agreement of the parties informally.'' Rest. 3d, supra, Sec. 333,
Comment a. ``Suspension of an agreement is relatively rare.'' Ibid.,
Reporters' Note 3.
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treaties
The provisions in the Vienna Convention on the Law of
Treaties regarding the suspension of the operation of a treaty
parallel the provisions of the convention relating to the
termination of a treaty. Briefly, the operation of a treaty as
to all of the parties or as to a particular party may be
suspended in conformity with its provisions or by consent of
all of the parties.\89\
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\89\ Vienna Convention on the Law of Treaties, supra, Article 57.
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Two or more parties to a treaty may agree to suspend the
operation of its provisions temporarily and as between
themselves alone in accordance with relevant treaty provisions.
In the absence of relevant provisions, parties in these
circumstances may agree to suspend the operation of treaty
provisions under two conditions. The first is that the
suspension does not affect the enjoyment by other parties of
their rights under the treaty or the performance of their
obligations. The second is that the suspension cannot be
incompatible with the object and purpose of the treaty. Unless
suspension is allowed by the treaty, the suspending parties are
required to give notice of their intention to suspend to the
other parties.\90\
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\90\ Ibid., Article 58.
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Generally speaking, where parties, without expressly
terminating an earlier treaty, enter into another and
incompatible treaty on the same subject, the former is deemed
terminated. However, a treaty in these circumstances is not
considered to have been terminated if it appears from the later
treaty or it is otherwise established that the parties intended
only to suspend its operation.\91\
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\91\ Ibid., Article 59.
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A material breach of a bilateral treaty by one party
entitles the other party to invoke the breach as a ground for
terminating the treaty or suspending its operation, in whole or
in part. In the case of a material breach of a multilateral
treaty by one of the parties, the Vienna Convention
distinguishes between the right of the other parties to react
jointly to the breach and the right of an individual party
specially affected by the breach to react alone. In the first
case, the other parties by unanimous agreement may suspend the
operation of the treaty or terminate it and they may do so
either in their relations with the defaulting state or as
between all the parties. In the second case any party specially
affected by the breach may invoke it as a ground for suspending
the operation of the treaty in whole or in part in the
relations between itself and the defaulting state. Where a
material breach is of such a character that it radically
changes the position of every party with respect to the
performance of its obligations under the treaty, any other
party may invoke the breach to suspend the operation of the
treaty in whole or in part with respect to itself.\92\
---------------------------------------------------------------------------
\92\ Ibid., Article 60.
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The Restatement (Third) follows a portion of the Vienna
Convention in Section 333 as follows:
(1) The operation of an international agreement may
be suspended in conformity with its provisions or by
consent of all the parties.
(2) Two or more parties to a multilateral
international agreement may agree to suspend its
operation as between themselves if
(a) the agreement provides for such
suspension; or
(b) the agreement does not prohibit such
suspension and the suspension would not be
incompatible with the rights of the parties to
the agreement or with its object and
purpose.\93\
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\93\ Rest. 3d, supra, Sec. 333.
While acknowledging that the Constitution does not
expressly authorize the President to suspend an international
agreement on behalf of the United States, the Restatement
(Third) concludes that he may do so because he is empowered to
conduct the foreign relations of the United States. The
Restatement's rules covering suspension are formulated
accordingly. Thus Section 339 provides that:
Under the law of the United States, the President has
the power
(a) to suspend * * * an agreement in
accordance with its terms;
(b) to make the determination that would
justify the United States in * * * suspending
an agreement because of its violation by
another party or because of supervening events,
and to proceed to * * * suspend the agreement
on behalf of the United States; or
(c) to elect in a particular case not to
suspend or terminate an agreement.\94\
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\94\ Ibid. Sec. 339.
The Restatement rule is in line with a 1941 opinion by
Acting Attorney General Biddle who concluded that a treaty
could be suspended by the President without aid or intervention
of the Senate or Congress. With respect to the International
Load Line Convention signed at London on July 5, 1930, which
limited the amount of cargo that ships could carry, he said:
The convention may be declared inoperative or
suspended by the President. A declaration by the
President to that effect would validly render the
convention inoperative or suspended, as the case may
be. Attention to the observance of treaties is an
executive responsibility. Jefferson to Genet, 4 Moore,
Digest Int. L. 680-682 (1906). It is not proposed that
the United States denounce the convention under article
25 (47 Stat. 2256), nor that it be otherwise abrogated.
Consequently, action by the Senate or by the Congress
is not required. Cf. 1 Stat. 578, 5 Moore, Digest Int.
El 356. The facts which bring into operation the right
to declare the convention inoperative or suspended are
within the knowledge of and can be promptly and
adequately appraised by the Executive Department; and
it is proper that the President, as ``the sole organ of
the Nation in its external relations should speak for
the Nation in announcing action which international law
clearly permits.'' See United States v. Curtiss-Wright
Export Corporation (1936) 299 U.S. 304, 319-320. See
also Charlton v. Kelly (1913) 229 U.S. 447, 472-476.
There is no question here of making or even of the
abrogation of a treaty. It is merely a question of a
declaration of inoperativeness of a treaty which is no
longer binding because the conditions essential to its
continued effectiveness no longer pertain.
Accordingly, it is my opinion that the convention
referred to may be declared by you to be either
inoperative or suspended; and that upon such
declaration it would become inoperative or suspended as
the case may be leaving the Secretary of Commerce free
to set load lines pursuant to the act of March 2, 1929,
c. 508 (45 Stat. 1492), as amended by the act of May
26, 1939, c. 151 (55 Stat. 783), without regard to the
convention.\95\
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\95\ V Hackworth, supra, p. 339, citing 40 Op. Atty. Gen., no. 24
(1941). See 14 Whiteman, supra, pp. 483-485.
Fundamental to the Attorney General's position was the
assumption that the convention presupposed peacetime conditions
which no longer prevailed. Accordingly, the President could
recognize the changed circumstances (rebus sic stantibus) and
suspend the convention during the pendency of the abnormal
circumstances. Without taking sides as to whether the rule of
changed circumstances applies only when the change is essential
or fundamental, the opinion concluded that the more onerous
circumstance was met in this case.
As previously indicated, a material breach of a bilateral
international agreement by one of the parties entitles the
other to suspend it in whole or in part. Also, a material
breach of a multilateral agreement by one of the parties
entitles the other parties by unanimous agreement to suspend it
either between themselves and the defaulting state or as
between all the parties. Under his authority to conduct the
foreign relations of the United States, the President makes the
determination that justifies suspending an agreement because of
a material breach by another party. Accordingly, as a practical
matter the President has the power to suspend a treaty since
the courts look to executive determinations for guidance
respecting the continued viability of a treaty.\96\ Thus, in
1986 the United States gave notice that it was suspending the
obligations of the ANZUS Security Treaty as it applied to New
Zealand because of that country's prohibition on visits by
nuclear-armed and nuclear-powered warships and aircraft. At the
same time it gave notice to Australia, the other party to the
ANZUS Treaty, that the treaty remained in full effect between
the United States and Australia.\97\
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\96\ Charlton v. Kelly, 229 US 447, 476 (1913). See also Terlinden
v. Ames, 184 U.S. 270, 290 (1902), and Baker v. Carr, 369 U.S. 186,
211-212 (1962).
\97\ Nash, Cumulative Digest 1981-1988, supra, Book I, pp. 1279-
1281.
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Where an intervening act of Congress effectively grants the
President discretion to suspend a treaty provision in some
material regard, there is no need for Senate or congressional
action when the discretion is exercised. Accordingly, when an
act of Congress authorized the President to suspend the
exercise of judicial functions of American consular and
diplomatic officials, the State Department concluded that he
could suspend the jurisdiction of the consular and ministerial
courts in Egypt and permit their jurisdiction to be transferred
to the mixed courts of that country notwithstanding that
ratification of a pertinent convention by the United States was
still pending.\98\
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\98\ V Hackworth, supra, p. 342.
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Also, it has been observed that by virtue of his power to
recognize or not to recognize governments, the President can
continue or suspend treaty relations with the country in
question.\99\
---------------------------------------------------------------------------
\99\ Henkin, supra, at 489, note 138.
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In light of the tendency of domestic courts to be guided by
executive actions regarding the continued effectiveness of a
treaty, actions effectively waiving noncompliance by the other
party do not as a practical matter require Senate or
congressional approval. Thus, in upholding the extradition to
Italy of an American national notwithstanding Italy's refusal
earlier to surrender Italian nationals--a refusal which the
United States regarded as a breach of the extradition treaty--
the Supreme Court held in favor of the treaty and extradition.
It said:
* * * If the attitude of Italy was, as contended, a
violation of the obligation of the treaty, which, in
international law, would have justified the United
States in denouncing the treaty as no longer
obligatory, it did not automatically have that effect.
If the United States elected not to declare its
abrogation, or come to a rupture, the treaty would
remain in force. It was only voidable, not void; and if
the United States should prefer, it might waive any
breach which in its judgment had occurred and conform
to its own obligation as if there had been no such
breach * * *
That the political branch of the Government
recognizes the treaty obligation as still existing is
evidenced by its action in this case.
The executive department having thus elected to waive
any right to free itself from the obligation to deliver
up its own citizens, it is the plain duty of this court
to recognize the obligation to surrender the appellant
as one imposed by the treaty as the supreme law of the
land and as affording authority for the warrant of
extradition.\100\
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\100\ Charlton v. Kelly, 229 U.S. 447, 473, 474, 476 (1913).
In 1957 the Department of State indicated that while the
President ``as a practical matter'' can waive the
breach of a treaty, the power ``would be exercised only
in light of the circumstances of the particular case,
including anticipated congressional reactions * * *.'' \101\
---------------------------------------------------------------------------
\101\ 14 Whiteman, supra, p. 477.
---------------------------------------------------------------------------
Concerning the exercise of a Presidential waiver adversely
affecting the rights of American citizens under a treaty, the
following comment has been made:
Although it is a general rule that a treaty to which
the United States is a party cannot be modified except
by the instrument brought into force through the treaty
processes, the effect of modification may be achieved
in some instances by a waiver of rights under a treaty
or a failure to invoke the treaty in circumstances
where it could be invoked. To an inquiry from Senator
Jenner, Secretary of State Dulles replied:
In light of the fact that your letter * * *
specifically raised the question whether the
Department of State under the present
administration claims ``authority to modify
treaties,'' * * * I am glad to assure you that
it is my view that the Executive may modify a
treaty, or a provision thereof, only by the
conclusion of another instrument of equal
formality, i.e., by another treaty entered into
by and with the advice and consent of the
Senate. This is also the view of my advisers,
who are fully aware of my position and fully
share my views.
To summarize, there are certain instances in
which rights to which United States citizens
are entitled under treaties or other United
States laws may, in the national interest,
legally be waived, lessened or extinguished by
acts, agreements or decisions of the Executive
Branch of the Government. You may be assured,
however, that no such decisions would be taken
in any situation without very careful
consideration at a high level of the rights
involved and the national interest.\102\
---------------------------------------------------------------------------
\102\ Ibid., pp. 441-442.
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executive agreements
Unless qualified by an act of Congress or treaty
authorizing the agreement (that is, by the Senate's
conditioning its advice and consent), the President may
unilaterally suspend an executive agreement.
E. Termination or Withdrawal
treaties
Terms of treaty; unanimous consent
As indicated in connection with the discussion of
suspension, the Vienna Convention on the Law of Treaties sets
forth the fundamental rule that a treaty may be terminated or
that a party may withdraw from a treaty in two ways: first, in
conformity with the provisions of the treaty; and second, at
any time by consent of all the parties.\103\ Most commentaries
on this aspect of treaty law agree that the modern practice is
to include in international agreements provisions dealing with
their termination. These provisions take various forms, such as
establishing the agreements' duration, specifying a date for
their termination, identifying a condition or event which lays
the basis for their termination, or providing for the right to
denounce or withdraw from the treaty.
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\103\ Vienna Convention on the Law of Treaties, supra, Article 54.
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A fairly common formulation conditions the right to
withdraw upon notice to the other parties of the intention to
withdraw and the expiration of a fixed period of time. In the
case of a bilateral treaty the exercise of the right means
termination; in the case of a multilateral treaty, withdrawal
may, but does not necessarily, terminate the treaty with
respect to the other parties. Of course, as consent is the
basis of all international agreements, the parties may in most,
if not all, circumstances put an end to a treaty by unanimous
consent.
Under international law a treaty which does not make any
provision for its termination or for denunciation or withdrawal
is not subject to denunciation or withdrawal. This prohibition
flows from the fundamental principle of international law that
treaties are to be observed ( pacta sunt servanda), that is,
that treaty obligations are binding and cannot be unilaterally
waived.\104\ However, the Vienna Convention allows two
exceptions to this rule. Denunciation or withdrawal
notwithstanding treaty silence on the subject is permitted if
``it is established that the parties intended to admit of the
possibility of denunciation or withdrawal'' or, alternatively,
if ``a right of denunciation or withdrawal may be implied by
the nature of the treaty.'' In either of these circumstances,
the Vienna Convention states that 12-months' notice must be
given of an intention to denounce or withdraw from a
treaty.\105\
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\104\ Ibid., Article 26.
\105\ Ibid., Article 56.
---------------------------------------------------------------------------
The Restatement (Third) elucidates the U.S. position on the
termination and denunciation of international agreements in a
manner that is generally in accord with Articles 54 and 56 of
the Vienna Convention. Thus, Section 332 provides that:
(1) The termination and denunciation of an
international agreement, or the withdrawal of a party
from an agreement, may take place only
(a) in conformity with the agreement or
(b) by consent of all the parties.
(2) An agreement that does not provide for
termination or denunciation or for the withdrawal of a
party is not subject to such action unless the right to
take such action is implied by the nature of the
agreement or from other circumstances.\106\
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\106\ Rest. 3d, supra, Sec. 332.
The termination of a treaty under international law is not
confined to circumstances where termination is the unanimous
desire of the parties or in conformity with treaty provisions
for termination. A treaty may be effectively terminated when
all of the parties to it conclude a later treaty on the same
subject if it appears from the latter or it is otherwise
established that the parties intended that the matter should be
governed by the second treaty. A similar result obtains where
the provisions of the later treaty are so incompatible with the
earlier one that the two of them cannot effectively
coexist.\107\
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\107\ Vienna Convention on the Law of Treaties, supra, Article 59.
The Restatement (Third) indicates that the United States adheres to
this view regarding the termination of an international agreement by
conclusion of a later incompatible agreement. See Rest. 3d, supra,
Sec. 332, Comment e.
---------------------------------------------------------------------------
Breach
Under Article 60 of the Vienna Convention, a material
breach of a bilateral treaty by one of the parties entitles the
other to invoke the breach as a ground for terminating the
treaty in whole or in part. In the case of a material breach of
a multilateral treaty, the other parties by unanimous agreement
may terminate it either in their relations with the defaulting
state or all the other parties. A material breach for this
purpose consists of an unjustified repudiation of the treaty or
a violation of a provision essential to the accomplishment of
any object or purpose of the treaty.\108\
---------------------------------------------------------------------------
\108\ Ibid., Article 60.
---------------------------------------------------------------------------
The Restatement's treatment of a material breach of an
international agreement as a ground for the agreement's
termination follows closely in line with the corresponding
provisions of the Vienna Convention. Section 335 summarizes the
U.S. position as follows:
(1) A material breach of a bilateral agreement by one
of the parties entitles the other to invoke the breach
as a ground for terminating the agreement or suspending
its operation in whole or in part.
(2) A material breach of a multilateral agreement by
one of the parties generally entitles
(a) the other parties by unanimous consent to
suspend the operation of the agreement in whole
or in part or to terminate it, either
(i) in the relations between
themselves and the defaulting state, or
(ii) as among all the parties;
(b) a party specially affected by the breach
to invoke it as a ground for suspending the
operation of the agreement in whole or in part
in the relations between itself and the
defaulting state;
(c) any party other than the defaulting state
to invoke the breach as a ground for suspending
the operation of the agreement in whole or in
part with respect to itself, if the agreement
is of such a character that a material breach
of its provisions by one party radically
changes the position of every party with
respect to the further performance of its
obligations under the agreement.\109\
---------------------------------------------------------------------------
\109\ Rest. 3d, supra, Sec. 335.
---------------------------------------------------------------------------
Impossibility of performance
The termination of a treaty may result from a supervening
impossibility of performance, a condition that arises from the
permanent disappearance or destruction of an object
indispensable for the execution of the treaty. The
impossibility has to be permanent and may not be the result of
a breach by the invoking party either of an obligation under
the treaty or of any other international obligation owed to any
other party to the treaty.\110\
---------------------------------------------------------------------------
\110\ Vienna Convention on the Law of Treaties, supra, Article 61.
---------------------------------------------------------------------------
Rebus sic stantibus
A treaty may become inapplicable and, therefore, subject to
being terminated because of a fundamental change of
circumstances that has occurred since the conclusion of the
treaty. This longstanding principle of international law is
commonly called the doctrine of rebus sic stantibus. In order
for the doctrine to apply, the change in circumstances from
those that prevailed at the time the treaty was concluded must
be both fundamental and not foreseen by the parties. In
addition, the existence of the original circumstances must have
constituted an essential basis of the consent of the parties to
be bound by the treaty, and the effect of the change must be
radically to transform the extent of the obligations still to
be performed under the treaty. According to the Vienna
Convention, the doctrine may not be invoked to terminate a
treaty which establishes a boundary. Similarly, it is
unavailable if the fundamental change is the result of a breach
by the party invoking it, a breach either of an obligation owed
under the treaty or of any other international obligation owed
to any other party to the treaty.\111\
---------------------------------------------------------------------------
\111\ Ibid., Article 62.
---------------------------------------------------------------------------
The doctrine of changed circumstances or rebus sic
stantibus is described by the Restatement (Third) as follows:
A fundamental change of circumstances that has
occurred with regard to those existing at the time of
the conclusion of an international agreement, and which
was not foreseen by the parties, may generally be
invoked as a ground for terminating or withdrawing from
the agreement but only if
(a) the existence of those circumstances
constituted an essential basis of the consent
of the parties to be bound by the agreement and
(b) the effect of the change is radically to
transform the extent of obligations still to be
performed under the agreement.\112\
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\112\ Rest. 3d, supra, Sec. 336.
The Restatement (Third) emphasizes that the invocation of
this doctrine is ``exceptional,'' \113\ and Hackworth and
Whiteman cite but one instance of its use by the United States
(and then to justify suspension rather than termination of a
treaty). In 1941 President Roosevelt suspended the
International Load Line Convention of July 5, 1930 (47 Stat.
2228). A memo from Acting Attorney General Biddle reasoned that
the convention, which restricted the depth to which ships could
be loaded and thus the amount of cargo they could carry, had
been predicated on the existence of peace and the normal flow
of commerce among nations. He contended that because of the
wars in Europe and Asia, those conditions no longer existed;
and as a consequence, he said, ``there is no doubt in my mind
that the convention has ceased to be binding upon the United
States.'' He concluded that ``[s]uspension of the convention in
such circumstances is the unquestioned right of a state
adversely affected by such essential change.'' \114\
---------------------------------------------------------------------------
\113\ Ibid., Comment a, at 218.
\114\ See V Hackworth, supra, pp. 353-356 and 14 Whiteman, supra,
at 483-485. On December 21, 1945, President Truman revoked the
proclamation suspending the convention.
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Jus cogens
Treaties that conflict with a newly emergent norm of
international law become void as of the date the new rule of
jus cogens is recognized or determined to exist by the
international community.\115\ When a rule of international law
falls into the category of jus cogens, it admits of no
derogation. Accordingly, it prevails over and invalidates
international agreements and other rules of international law
in conflict with it. The condemnation of aggression in the U.N.
Charter and of genocide in the Convention on the Prevention and
Punishment of the Crime of Genocide are asserted to have the
character of jus cogens.\116\
---------------------------------------------------------------------------
\115\ Vienna Convention, supra, Article 64.
\116\ Rest. 3d, supra, Sec. 102, Comment k; and Brownlie, Ian.
Principles of Public International Law. Clarendon Press, 1990, p. 513.
---------------------------------------------------------------------------
Severance of diplomatic relations
The Vienna Convention on the Law of Treaties provides that
the severance of diplomatic or consular relations generally
does not affect the legal relations of parties to a treaty.
Legal relations established by a treaty may be adversely
affected, however, in cases where diplomatic or consular
relations are indispensable for the application of the
treaty.\117\
---------------------------------------------------------------------------
\117\ Vienna Convention on the Law of Treaties, supra, Article 63.
---------------------------------------------------------------------------
Hostilities
The Vienna Convention expressly reserves questions with
respect to the effect of hostilities on treaty relations.\118\
The older view seems to have been that the outbreak of
hostilities terminated treaties between the warring parties or,
at the very least, suspended them. The U.N. Charter's
condemnation of aggression, however, has introduced an element
of uncertainty into the older view's conceptual underpinnings.
Therefore, whether hostilities affect adversely all or some of
the warring parties' treaty relationships is
problematical.\119\ The Restatement (Third) notes that court
decisions in the United States regarding the effect of war on
treaties have traditionally ``dealt with them pragmatically,
preserving or annulling as the necessities of war exact.''
\120\
---------------------------------------------------------------------------
\118\ Ibid., Article 73. ``The provisions of the present Convention
shall not prejudge any question that may arise in regard to a treaty *
* * from the outbreak of hostilities between States.''
\119\ Rest. 3d, supra, Sec. 336, Comment e.
\120\ Ibid., Reporters' Note 4, p. 221, quoting Techt v. Hughes,
229 N.Y. 221, 241, 128 N.E. 185, 191, cert. den., 254 U.S. 643 (1920).
---------------------------------------------------------------------------
State succession
In international law rights and obligations arising out of
international agreements, as well as from other sources, belong
to the state, not to the government which represents it.
Accordingly, changes in government as a rule do not interrupt
the rights and obligations of successor governments. However,
such may not be the case when one state succeeds, that is,
replaces, another in terms of being responsible for the
international relations of a given territory.\121\ State
succession has happened for centuries. But the breakup of the
colonial empires of the European powers, the dissolution of the
Soviet Union and of Yugoslavia, and the emergence of numerous
new states in recent decades has given particular urgency to
the question of whether treaties continue to remain in force in
such circumstances. International law and state practice on the
issue, however, have been described as ``uncertain and
confused.'' \122\
---------------------------------------------------------------------------
\121\ Ibid., Article 2, para. 1(b). `` `[S]uccession of States'
means the replacement of one state by another in the responsibility for
the international relations of territory.''
\122\ Rest. 3d, supra, Sec. 208, Reporters' Note 1.
---------------------------------------------------------------------------
As it does with respect to the effect of war on treaties,
the Vienna Convention on the Law of Treaties makes no effort to
resolve questions concerning the implications of state
succession for treaty rights and obligations.\123\ Instead, a
subsequent agreement approved by a U.N. conference in 1978, the
Vienna Convention on Succession of States in Respect of
Treaties, attempted to codify the pertinent legal
standards.\124\ But that agreement has never obtained
sufficient ratifications to enter into effect.\125\ Moreover,
the standards set forth in that convention differ in
significant respects from those articulated in the Restatement
(Third), and both deviate in some respects from what appears to
be U.S. practice.
---------------------------------------------------------------------------
\123\ Vienna Convention on the Law of Treaties, supra, Article 73,
provides, in part, that ``[t]he provisions of the present Convention
shall not prejudge any question * * * in regard to a treaty from a
succession of States * * *''
\124\ U.N. Doc. A/CONF. 80/31 (August 22, 1978); 17 ILM 1788
(1978).
\125\ The United States has never signed the agreement.
---------------------------------------------------------------------------
The standards set forth in the Vienna Convention on
Succession of States in Respect of Treaties and in the
Restatement (Third) vary according to the nature of the
succession that has occurred. They set forth the following main
categories:
(1) When part of the territory of an existing state
becomes part of another existing state, both the
Convention and the Restatement (Third) provide that the
treaties of the predecessor state cease to have effect
in that part and the treaties of the successor state
come into force.\126\
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\126\ Vienna Convention on Succession of States in Respect of
Treaties, supra, Article 15; Rest. 3d, supra, Sec. 210(1).
---------------------------------------------------------------------------
(2) When two or more states unite, the Convention
states that the treaties of both continue in effect but
only with respect to the part of the territory of the
new state to which the treaties previously applied. The
Restatement (Third) does not disagree but stresses that
``it is sometimes difficult to distinguish between an
absorption of one state by another and the merger of
two or more states into a Federal union.'' In the case
of absorption, the Restatement (Third) states that the
treaties of the absorbed state are terminated and those
of the absorbing state become applicable to the whole
territory.\127\
---------------------------------------------------------------------------
\127\ Ibid., Article 31 and Sec. 210(2) and Comment c.
---------------------------------------------------------------------------
(3) When a former colony becomes a new state (termed
a ``newly independent State'' by the Convention), both
the Convention and the Restatement (Third) provide that
the new state does not succeed to the treaty rights and
obligations of the colonial power, unless it expressly
agrees to them or by conduct is considered to have
agreed to them. This rule is designated the ``clean
slate'' rule.\128\
---------------------------------------------------------------------------
\128\ Ibid., Article 16 and Sec. 210(3).
---------------------------------------------------------------------------
(4) When a new state emerges from a condition other
than colonialism, e.g., as the result of secession or
the dissolution of the predecessor state, the
Convention states a ``continuity'' rule, i.e., that the
international agreements of the predecessor state
continue in force for every successor state. The
Restatement (Third), in contrast, does not
differentiate these states from former colonies and
applies the clean slate rule to both.\129\ The
Convention's differentiation is based on the notion
that a colony had no voice in the making of the
international agreements of the colonial power, whereas
states arising from secession or dissolution
purportedly did. The Restatement (Third) rejects that
distinction, contending that ``it does not reflect
consistent practice and would be difficult to apply.''
\130\
---------------------------------------------------------------------------
\129\ Ibid., Articles 34-35 and Sec. 210(3).
\130\ Rest. 3d, supra, Sec. 210, Reporters' Note 4.
Both the convention and the Restatement (Third) provide
that pre-existing boundary and other territorial agreements
continue to be binding on successor states.\131\
---------------------------------------------------------------------------
\131\ Ibid., Article 11 and Sec. 210(4).
---------------------------------------------------------------------------
State practice with respect to state succession and treaty
obligations has not been consistent, however. A 1991 State
Department study of past state practice found that,
historically, a spectrum of ``divergent approaches'' has been
employed depending on the circumstances.\132\ The Restatement
(Third) notes that in practice even states emerging from
colonial status ``have found it inconvenient to wipe out
entirely the often complex network of agreements that had been
applicable to their territory.'' \133\ U.S. practice, at least
in recent times, appears to have generally employed the
continuity principle while being open to negotiations on
whether particular treaties ought to continue to apply. That
has been the case with respect to the successor states of the
former Soviet Union and the former Yugoslavia, the breakup of
Czechoslovakia, and the separation of Eritrea from
Ethiopia.\134\
---------------------------------------------------------------------------
\132\ Williamson, Edwin D., and Osborne, John E., ``A U.S.
Perspective on Treaty Succession and Related Issues in the Wake of the
Breakup of the USSR and Yugoslavia,'' 33 Virginia Journal of
International Law 261, 263-64 (1993).
\133\ Rest. 3d, supra, Sec. 210, Reporters' Note 3.
\134\ Williamson, supra, note 132, pp. 261-272; Williams, Paul R.,
``The Treaty Obligations of the Successor States of the Former Soviet
Union, Yugoslavia, and Czechoslovakia: Do They Continue in Force?'' 23
Denver Journal of International Law and Policy 1 (1994); and Nash,
Marian (Leich), ``Contemporary Practice of the United States Relating
to International Law,'' 87 American Journal of International Law 595
(1993).
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F. U.S. Law and Practice in Terminating International Agreements
general
The constitutional requirements that attend the termination
of treaties remain a matter of some controversy. The Senate
Foreign Relations Committee has from time to time contended
that the termination of treaties requires conjoint action by
the President and the Senate (or Congress).\135\ But in the
most recent instance of open conflict between the President and
some Members of the Senate regarding the termination of a
treaty--President Carter's termination of the Mutual Defense
Treaty with Taiwan in 1979--the Federal trial and appellate
courts reached contrary conclusions regarding the requirements
of the Constitution for terminating a treaty and the Supreme
Court avoided resolving the constitutional question.\136\
---------------------------------------------------------------------------
\135\ The Senate Committee on Foreign Relations early on took the
position that ``[t]he President and Senate, acting together, [were
`competent'] to terminate a treaty'' but allowed that in certain
circumstances a treaty could be terminated by joint action of the
President and Congress. S. Rept. 97, 34th Cong., 1st Sess. (1857), p.
3. In 1979 the Senate Committee on Foreign Relations gave renewed
consideration to the treaty termination issue in the context of
President Carter's unilateral termination of the 1954 Mutual Defense
Treaty with Taiwan. It said: ``The Committee has reviewed its actions
over the last decade because it believes it important that the issue of
treaty termination be viewed in context. That context * * * is a
history of efforts by the Committee and the Senate to ensure the
constitutional prerogatives of the Congress and the special role
accorded the Senate by the treaty Clause are respected by the executive
branch * * * The constitutional role of the Congress has too often been
short-circuited because it was viewed in the executive branch and even
by some Members of Congress as an impediment to the expeditious
adoption of substantive policies commanding the support of a majority.
Thus, when in our recent history the substance of those policies lost
that support, the procedures once available as checks had atrophied,
and the Congress was forced to struggle to reclaim its powers. The
lesson was learned the hard way: procedural requirements prescribed by
the Constitution must not be disregarded in the name of efficiency, and
the substance of a policy, however, attractive, can never justify
circumventing the procedure required by the Constitution for its
adoption * * * The issue of treaty termination, in the judgment of the
Committee, must be viewed pursuant to this principle. * * * [T]he
Committee * * * cannot accept the notion advanced by administration
witnesses that the President possesses an `implied' power to terminate
any treaty, with any country, under any circumstances, irrespective of
what action may have been taken by the Congress by law or by the Senate
in a reservation to that treaty. Such an argument in this context is at
odds with the most fundamental precepts underlying the separation of
powers doctrine * * *.'' S. Rept. 96-119, 96th Cong., 1st Sess. (1979),
pp. 5-6.
\136\ A number of Members of Congress attempted to force a judicial
resolution of the legality of President Carter's action by filing suit
in Federal court. At trial a Federal district court initially held that
``any decision of the United States to terminate [the Mutual Defense
Treaty of 1954] must be made with the advice and consent of the Senate
or the approval of both houses of Congress. That decision cannot be
made by the President alone.'' Goldwater v. Carter, 481 F. Supp. 949,
965 (D.D.C. 1979). But the U.S. Court of Appeals for the District of
Columbia reversed and held that ``the President did not exceed his
authority when he took action to withdraw from the * * * treaty,
without the consent of the Senate or other legislative concurrences.''
Goldwater v. Carter, 617 F. 2d 697, 709 (D.C. Cir. 1979). The Supreme
Court then vacated that decision and ordered the complaint dismissed.
Goldwater v. Carter, 444 U.S. 996 (1979). In so doing the court issued
no majority opinion. Then-Justice Rehnquist, joined by Chief Justice
Burger and Justices Stewart and Stevens, opined that the issue was a
political question inappropriate for judicial resolution. Justice
Powell concurred in the court's judgment but disagreed with the
plurality's reasoning. He said that the case should be dismissed on
grounds of ripeness but contended that the political question doctrine
did not stand as an inevitable barrier to judicial resolution of the
constitutional question. Justice Marshall concurred in the result
without opinion. Justices Blackmun and White argued that the case
should be scheduled for briefing and oral argument. Justice Brennan
dissented, arguing that the decision of the Court of Appeals should be
affirmed to the extent ``it rests upon the President's well-established
authority to recognize, and withdraw recognition from, foreign
governments.'' 444 U.S. at 1006. The direction by the Supreme Court to
dismiss the complaint vitiates any precedential value of the earlier
rulings and leaves the issue of Presidential authority to terminate a
treaty effectively unresolved. However, it should be noted that
subsequent decisions have made it difficult for Members of Congress to
bring suit on separation of powers issues. See, for example, Raines v.
Byrd, 521 U.S. 811 (1997) (Members of Congress held to lack standing to
challenge the constitutionality of the ``Line Item Veto Act'') and
Campbell v. Clinton, 203 F. 3d 19 (D.C. Cir.), cert. den., 2000
U.S.LEXIS 4928 (2000) (Members of Congress held to lack standing to
challenge the constitutionality of U.S. participation in NATO's
military actions against the former Yugoslavia).
---------------------------------------------------------------------------
The Restatement (Third) subscribes to the view that the
power to terminate treaties is lodged in the President.\137\
With regard to international agreements that do not take the
form of treaties, the conclusion is generally true or, at
least, has not been seriously challenged in the past. However,
as indicated at the outset, the assertion of an exclusive
Presidential power in the context of a treaty is controversial
and flies in the face of a substantial number of precedents in
which the Senate or Congress have been participants.
---------------------------------------------------------------------------
\137\ Rest. 3d, supra, Sec. 339. Section 339, captioned ``Authority
to Suspend or Terminate International Agreement: Law of the United
States,'' reads as follows: ``Under the law of the United States, the
President has the power (a) to suspend or terminate an agreement in
accordance with its terms; (b) to make the determination that would
justify the United States in terminating or suspending an agreement
because of its violation by another party or because of supervening
events, and to proceed to terminate or suspend the agreement on behalf
of the United States; or (c) to elect in a particular case not to
suspend or terminate an agreement.''
---------------------------------------------------------------------------
In so far as domestic law and practice are concerned, two
noncontroversial observations may be made with respect to the
termination of an international agreement. First, as the
official spokesperson with other governments, the President is
the person who communicates the notice of impending
termination.\138\ Second, the termination of an international
agreement is a political act, and, accordingly, the courts do
not terminate international agreements.\139\ However, whether a
treaty to be legally as distinguished from effectively
terminated requires conjoint action of the political branches
remains, as previously indicated, a live issue which the
Supreme Court has sidestepped in the past.
---------------------------------------------------------------------------
\138\ ``The President is the sole organ of the Nation in its
external relations, and its sole representative with foreign nations.''
United States v. Curtiss-Wright Export Corp., 299 U.S. at 319, quoting
John Marshall in debate in the House of Representatives on March 7,
1800. ``* * * Congress has no power to communicate directly with
foreign powers.'' Willoughby, Constitutional Law of the United States,
v. 1, 1929, p. 587 (hereafter cited as 1 Willoughby).
\139\ Charlton v. Kelly, 229 U.S. 447, 474 (1913).
---------------------------------------------------------------------------
``The procedure by which, from the viewpoint of national
law and practice, treaties may be terminated involves questions
to be resolved in accordance with constitutional and related
procedures in each country. The United States Constitution is
silent with respect to the power to terminate treaties. The
matter was not discussed in the debates of the Constitutional
Convention in Philadelphia.'' \140\ ``The Constitution tells us
only who can make treaties for the United States; it does not
say who can unmake them.'' \141\ As a consequence of the
Constitution's silence in this regard, ``there has been some
confusion of doctrine upon this point and a variety in
practice.'' \142\
---------------------------------------------------------------------------
\140\ 14 Whiteman, supra, p. 461.
\141\ Henkin, supra, p. 211.
\142\ 1 Willoughby, supra, p. 581.
---------------------------------------------------------------------------
The doctrinal confusion stems in large measure from various
seemingly inconsistent or opposing concepts. As explained by
one noted legal scholar:
From the point of view of American law * * *, the
Constitution does not limit the authority to terminate
treaties to the possessors of the treatymaking power,
i.e., the President and Senate * * *. Article VI [of
the Constitution] vests treaties with the same domestic
status as Federal statutes, which means that the courts
must disregard treaty provisions insofar as they are
inconsistent with later acts of Congress. A Federal
statute inconsistent with the terms of an existing
treaty consequently operates to deprive such treaty of
its force as law within this country. Under Article VI
the Congress can, in effect, terminate a treaty, so far
as its effect in our domestic law is concerned. Such
congressional termination, the Supreme Court has said,
``must control in our courts as the later expression of
our municipal law, even though it conflicted with the
provision of the treaty and the international
obligation remained unaffected.''
At the same time, it is clear that, in such a case,
the international obligation does remain unaffected * *
*. The repeal of a treaty by a later statute is only a
matter of American law. Regardless of the abrogation of
the municipal effect of a treaty by an overriding
statute, the treaty is not abrogated in the
international sense. * * * \143\
---------------------------------------------------------------------------
\143\ Schwartz, The Powers of Government, v. II (1963), p. 130.
In addition to effectively terminating a treaty by
legislatively negating its municipal consequences, the Congress
may effect a termination in other ways, such as by a
declaration of war \144\ or, in the case of non-self-executing
treaties, by failing to approve necessary implementing
legislation.
---------------------------------------------------------------------------
\144\ See Bas v. Tingy, 4 Dall. (4 U.S.) 37 (1800); Wright, The
Control of American Foreign Relations, p. 256; cf. 14 Whiteman, p. 290
et seq.
---------------------------------------------------------------------------
All of the foregoing is true notwithstanding that ``[i]n so
far as a treaty is regarded as an international compact, it
seems almost too clear for argument that Congress [as
distinguished from the Senate], not having been made by the
Constitution a participant in the treatymaking power, has no
constitutional authority to exercise that power either
affirmatively or negatively, that is, by creating or destroying
international agreements.'' \145\ Moreover, ``[i]t may be noted
that Congress has no means whereby it may itself give notice of
termination of a treaty to the foreign government concerned
under the Constitution; Congress has no power to communicate
directly with foreign Powers.'' \146\ ``But it is well for the
Senate and for Congress also to remember that it does not lie
in our hands alone to give this notice to a foreign Government.
We can not give the notice.'' \147\
---------------------------------------------------------------------------
\145\ 1 Willoughby, supra, p. 585.
\146\ Ibid., p. 587.
\147\ Senator Lodge, chairman, Committee on Foreign Relations, 48
Congressional Record 587 (1911).
---------------------------------------------------------------------------
To the President is ascribed the role of being the ``organ
of foreign relations.'' The Supreme Court has described this
role as ``the very delicate, plenary and exclusive power of the
President as the sole organ of the Federal government in the
field of international relations.'' \148\ Although the Congress
can effectively terminate a treaty's domestic effect by passage
of a superseding public law (which requires the President's
signature or the override of a veto), the termination of the
outstanding international obligation seems to reside with the
President since he alone is able to communicate with foreign
powers. ``The only organ of this Government recognized by
foreign Governments is the Executive--the President of the
United States. If he does give the notice, it will be given.''
\149\
---------------------------------------------------------------------------
\148\ United States v. Curtiss-Wright Export Corp., 299 U.S. 304,
320 (1936).
\149\ Senator Lodge, supra, note 146.
---------------------------------------------------------------------------
Whether the President alone can terminate a treaty's
domestic effect remains an open question.\150\ As a practical
matter, however, the President may exercise this power since
the courts have held that they are conclusively bound by an
executive determination with regard to whether a treaty is
still in effect.\151\ The same result may apply to a
congressional termination, particularly if it is regarded as a
declaration of war.\152\
---------------------------------------------------------------------------
\150\ See Van der Weyde v. Ocean Transport Co., 297 U.S. 114, 117
(1936).
\151\ See Terlinden v. Ames, 184 U.S. 270, 290 (1902); Charlton v.
Kelly, 229 U.S. 447, 474-476 (1913).
\152\ See Bas v. Tingy, 4 Dall. 37 (4 U.S.) (1800).
---------------------------------------------------------------------------
treaties
``International law,'' it has been observed, ``* * *
recognizes the power--though not the right--of a state party to
break a treaty and pay damages or abide other international
consequences.'' \153\ That the U.S. Government has the
constitutional power to terminate treaties on behalf of the
United States is clear.\154\ It is a power which inheres in
sovereignty and is not negated by the supremacy clause or any
other clause of the Constitution.\155\ Although the other party
to a broken agreement has a `legitimate grievance,' its avenue
of redress is ``by the negotiation of a new agreement, or
failing peaceful modes of settlement, by more drastic means,
should the grievance be deemed a sufficiently serious one.''
\156\ ``A violation of a treaty obligation, as of any other
obligation, may give rise to a right in the other party to take
non-forcible reprisals and these reprisals may properly relate
to the defaulting party's rights under the treaty.'' \157\ But
``[t]he question whether our government is justified in
disregarding its engagements with another Nation is not one for
the determination of the courts * * *. This court is not a
censor of the morals of other departments of the government * *
*.'' \158\
---------------------------------------------------------------------------
\153\ Henkin, supra, p. 211.
\154\ The Chinese Exclusion Case, 130 U.S. 581, 602 (1889).
\155\ Ibid.
\156\ 1 Willoughby, supra, note 115, p. 582; cf. 14 Whiteman,
supra, note 8, pp. 468 et seq.
\157\ U.N. International Law Commission, 14 Whiteman, supra, note
8, p. 468.
\158\ The Chinese Exclusion Case, 130 U.S. 581, 602-603 (1889).
---------------------------------------------------------------------------
The actual practice whereby treaties have been terminated
demonstrates considerable variation. ``In some cases treaties
have been terminated by the President, in accordance with their
terms pursuant to action by Congress. In other cases action was
taken by the President pursuant to resolutions of the Senate
alone. In still others the initiative was taken by the
President, in some cases independently, and in others his
action was later notified to one or both Houses of Congress and
approved by both Houses. No settled rule or procedure has been
followed.'' \159\ Hackworth quoted the Solicitor of the
Department of State as saying ``that the choice of method would
seem to depend either upon the importance of the international
question or upon the preference of the Executive.'' \160\ The
``actual practice'' has been summarized as follows:
---------------------------------------------------------------------------
\159\ 14 Whiteman, supra, p. 460.
\160\ V Hackworth, supra, p. 319.
---------------------------------------------------------------------------
Executive action pursuant to prior authorization or
direction by the Congress;
Executive action pursuant to prior authorization or
direction by the Senate;
Executive action without prior specific authorization
or direction, but with subsequent approval by the
Congress;
Executive action without prior specific authorization
or direction, but with subsequent approval by the
Senate;
Executive action without specific prior authorization
or direction and without subsequent approval by either
the Congress or the Senate.\161\
---------------------------------------------------------------------------
\161\ 14 Whiteman, supra, p. 462.
---------------------------------------------------------------------------
Executive action pursuant to prior authorization or direction by the
Congress
The instances in which the Congress, by joint resolution,
has authorized or directed the President to terminate treaties
``have been considerable in number'': \162\
---------------------------------------------------------------------------
\162\ 1 Willoughby, supra, p. 583.
---------------------------------------------------------------------------
In some instances the congressional action for the
denunciation of a treaty has empowered the President
``at his discretion'' to give the necessary notice to
the foreign Governments concerned. In other instances,
he has been directed, that is, charged with the duty,
of giving the notice. For example the Joint Resolution
of Congress of January 18, 1865, relative to the
Canadian Reciprocity Treaty, declared that notice of
denunciation should be given, and that ``the President
of the United States is hereby charged with the
communication of such notice.'' Of the same tenor was
the Joint Resolution of March 4, 1883, relative to the
Treaty of Washington with Great Britain. [This
Resolution declared that articles of the treaty ought
to be terminated at the earliest time, and that to this
end, ``the President be, and he hereby is, directed to
give notice to the government of His Britannic Majesty
that the provisions of * * * the articles aforesaid
will terminate and be of no force on the expiration of
two years next after the time of giving such notice.'']
\163\
---------------------------------------------------------------------------
\163\ Ibid.
In 1846, pursuant to a request from President Polk, a joint
resolution was enacted providing that ``the President * * * be,
and he is hereby, authorized, at his discretion, to give to the
Government of Great Britain the notice required by the second
article of the said convention of the 6th of August, 1827, for
the abrogation of the same.'' \164\ That convention provided
for the joint occupancy of certain parts of the Oregon
Territory. Similarly, the Seaman's Act of March 4, 1915 \165\
requested and directed the President to give notice of the
termination of the treaty provisions in conflict with the Act.
Section 16 of the Act expressly provided that ``the President
be * * * requested and directed * * * to give notice to the
several Governments, respectively, that so much as herein
described of all such treaties and conventions between the
United States and foreign Governments will terminate on the
expiration of such periods after notices have been given as may
be required in such treaties and conventions.''
---------------------------------------------------------------------------
\164\ 9 Stat. 108 (1846).
\165\ 38 Stat. 1164.
---------------------------------------------------------------------------
A subsequent Supreme Court decision noted that ``[i]t
appears that, in consequence, notice was given and that a large
number of treaties were terminated in whole or in part.'' \166\
But in Van der Weyde v. Ocean Transport Co., the court upheld
the method of terminating treaties used in the Seamen's Act,
stating: ``From every point of view, it was incumbent upon the
President, charged with the conduct of negotiations with
foreign governments and also with the duty to take care that
the laws of the United States are faithfully executed, to reach
a conclusion as to the inconsistency between the provisions of
the treaty and the provisions of the new law.'' The court did
not opine on whether the language of the statute was binding,
but stated simply that the President was obligated to
distinguish between consistencies and inconsistencies in
foreign treaties and the law in question. Moreover, the court
expressly stated that the question of the sufficiency of
Presidential power alone to terminate the treaties was not
before it; ``* * * the question as to the authority of the
Executive in the absence of congressional action, or of action
by the treatymaking power, to denounce a treaty of the United
States is not here involved.'' \167\
---------------------------------------------------------------------------
\166\ Van der Weyde v. Ocean Transport Co., 297 U.S. 114, 116
(1936).
\167\ Ibid., pp. 117-118.
---------------------------------------------------------------------------
More recently, Congress mandated the termination of a
treaty in the Anti-Apartheid Act of 1986. Section 313 of that
Act required the Secretary of State to terminate immediately,
in accordance with its terms, the tax treaty and protocol with
South Africa that had been concluded on December 13, 1946.\168\
---------------------------------------------------------------------------
\168\ Public Law 99-440, Sec. 313 (October 2, 1987); 100 Stat.
3515; 22 U.S.C. 5063. The treaty provided for termination upon 1 year's
notice.
---------------------------------------------------------------------------
The propriety of congressional action advising or directing
the President to notify foreign governments of the termination
of treaties between them and the United States has not gone
unchallenged. In 1879 President Hayes vetoed the Chinese
Immigration Bill of that year on the ground, inter alia, that
it instructed him to abrogate certain articles of the existing
treaty with China. He said: ``As the power of modifying an
existing treaty, whether by advising or striking out
provisions, is a part of the treatymaking power under the
Constitution, its exercise is not competent for Congress, nor
would the assent of China to this partial abrogation of the
treaty make the action of Congress in thus procuring an
amendment of a treaty, a competent exercise of authority under
the Constitution.'' \169\
---------------------------------------------------------------------------
\169\ 1 Willoughby, supra, p. 584.
---------------------------------------------------------------------------
Similarly, in 1920 President Wilson refused to carry out
Section 34 of the Merchant Marine Act of that year. That
section directed the President to terminate any provisions of
existing treaties that restricted the right of the United
States ``to impose discriminating customs duties on imports
entering the United States and discriminatory tonnage duties *
* *'' A Department of State press release of September 24,
1920, in part, stated:
The Department of State has been informed by the
President that he does not deem the direction,
contained in Section 34 * * * an exercise of any
constitutional power possessed by the Congress.
Secretary Colby, commenting on the point made by the
President that Congress had exceeded its powers, called
attention to the veto by President Hayes of an Act
passed by Congress in 1879. * * * President Hayes
declared that ``the power of making new treaties or of
modifying existing treaties is not lodged by the
Constitution in Congress, but in the President, by and
with the advice and consent of the Senate, as shown by
the concurrence of two-thirds of that body.'' \170\
---------------------------------------------------------------------------
\170\ V Hackworth, supra, p. 323. A memorandum from the Solicitor
for the State Department buttressed this view as follows: ``Congress
may pass an act violative of a treaty. It may express its sense that a
treaty should be terminated. But it cannot in effect undertake legally
to modify a treaty no matter what methods it may employ. In doing that,
it, in effect, attempts to conduct diplomatic negotiations and to
encroach on the treatymaking power composed of the President and the
Senate.''
---------------------------------------------------------------------------
Executive action pursuant to prior authorization or direction by the
Senate
The Department of State has taken the position that the
principals who can execute treaties can terminate them. ``* * *
[T]he power that makes the treaty can likewise revoke it; in
other words, that the President acting in conjunction with the
Senate of the United States would be authorized to terminate a
treaty to which the United States is a party.'' \171\ This
method has also received judicial recognition: ``The President
and Senate may denounce the treaty and thus terminate its
life.'' \172\
---------------------------------------------------------------------------
\171\ Ibid., p. 319.
\172\ Techt v. Hughes, 229 N.Y. 222, 243 (1920).
---------------------------------------------------------------------------
This procedure was apparently first employed in the mid-
1850s and precipitated considerable controversy. On January 26,
1855, the House passed a joint resolution authorizing the
President to give notice of the termination of the 1826 Treaty
of Friendship, Commerce, and Navigation between Denmark and the
United States according to its terms.\173\ But on March 3,
1855, the Senate adopted instead a simple resolution
authorizing the President to do so; and President Pierce on
April 14 of that year gave the requisite notice on the basis of
the latter authority. Subsequently, at the initiative of
Senator Sumner, the Senate directed the Committee on Foreign
Relations to examine the constitutionality of this procedure
and whether a statute was required to effect the
termination.\174\ The committee did so and concluded that the
procedure was constitutionally proper: ``The Committees are
clear in the opinion that it is competent for the President and
Senate, acting together, to terminate in the manner prescribed
by the eleventh article without the aid or intervention of
legislation by Congress, and that when so terminated it is at
an end to every intent both as a contract between the
Governments and as a law of the land.'' \175\ The Senate,
subsequently, had an extensive debate on the report and on a
resolution reported by the committee endorsing that view,\176\
but the resolution never came to a final vote.
---------------------------------------------------------------------------
\173\ Congressional Globe, 33d Cong., 2d Sess. (1855), pp. 414-415.
\174\ Ibid., 34th Cong., 1st Sess. (March 6, 1856), pp. 599-607.
\175\ S. Rept. 97, 34th Cong., 1st Sess. (1856), p. 3.
\176\ Congressional Globe, 34th Cong., 1st Sess. (May 8, 1856), p.
826 (text of resolution) and pp. 1146-1158 (debate).
---------------------------------------------------------------------------
This procedure has been used on subsequent occasions. In
1921, for instance, President Wilson sought the Senate's advice
and consent to the denunciation of the International Sanitary
Convention of 1903. That convention had been superseded by a
1912 convention but remained in force for those parties which
had not ratified the latter convention. The Public Health
Service believed that situation to ``prevent the enforcement of
measures necessary for the prevention of diseases from abroad''
and said that it would be ``infinitely better to have no
international sanitary convention than to continue to abide by
the terms of the Paris convention of 1903.'' \177\ By a
resolution adopted by a two-thirds majority on May 26, 1921,
the Senate gave its advice and consent to the denunciation of
the convention; and the Secretary of State communicated notice
of the denunciation to the convention's depositary.\178\
---------------------------------------------------------------------------
\177\ See 61 Congressional Record 1794 (May 26, 1921) (letter of
April 12, 1920, from D.F. Houston, Secretary of the Treasury, to the
Secretary of State).
\178\ V Hackworth, supra, p. 322.
---------------------------------------------------------------------------
Executive action without prior specific authorization or direction, but
with subsequent approval by the Congress
In 1864 the Secretary of State directed the U.S. Minister
in London to give the British Government the stipulated 6-
months' notice of an intention to terminate the Great Lakes
Agreement of 1817 regulating armaments on the Great Lakes. The
minister did so, and a few months later Congress by joint
resolution ``adopted and ratified'' the notice of
termination.\179\ In 1911, President Taft, without
congressional direction but after House passage of a strongly
worded joint resolution, gave notice to the Russian Government
of the termination of the commercial treaty of 1832 with that
country. Thereafter, he communicated his action to the Senate,
``as a part of the treatymaking power of this Government,'' for
its approval. The Senate Foreign Relations Committee, however,
reported a joint resolution by which the notice of termination
by the President was ``adopted and ratified.'' This joint
resolution was passed by both houses of Congress and was signed
by the President on December 21, 1911.\180\
---------------------------------------------------------------------------
\179\ 5 Moore, supra, p. 323.
\180\ 37 Stat. 627 (1911); V Hackworth, pp. 319-320; 1 Willoughby,
p. 582.
---------------------------------------------------------------------------
Executive action without specific prior authorization or direction, but
with subsequent approval by the Senate
Although many authorities recognize this method and affirm
its use, supporting examples are rarely provided. It should be
noted that President Taft in terminating the 1832 treaty with
Russia, discussed above, sought to employ this mode. Although
his action was subsequently approved by joint congressional
action, it seems likely that his initial approach was based on
some precedent.
During the Senate debate on the resolution, Senator Lodge,
chairman, Foreign Relations Committee, endorsed the President's
use of this method. He said:
The President has entire authority to give that
notice and to ask for the approval of Congress or
approval of the Senate. He takes the view, which is
held by many of the best judges that the treatymaking
power is entirely able to terminate a treaty which
carries with it no legislation and the President did
nothing unusual in this action.\181\
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\181\ 48 Congressional Record 455 (1911).
* * *
The Senate and the President alone can end an
existing treaty by simply agreeing to a new one, they
can do it without any consultation with any other body,
and certainly where no legislation is involved it seems
to me that those who represented the high contracting
party in the making of a treaty are capable of
representing the high contracting party in its
unmaking.\182\
---------------------------------------------------------------------------
\182\ Ibid., p. 480.
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Executive action without specific prior authorization or direction, and
without subsequent approval by either the Congress or the
Senate
There appears to be some uncertainty among the commentators
as to the first termination of a treaty by a President acting
alone. But one of the earliest appears to be the termination in
1899 of the most-favored-nation clauses in a commercial treaty
of 1850 with France, as extended to Switzerland under a
commercial agreement entered into in 1898. A 1936 memorandum
from the State Department to President Roosevelt cited that
instance in justification of its conclusion that the President
could also give notice of an intent to terminate a treaty with
Italy ``without seeking the advice and consent of the Senate or
the approval of Congress to such action.'' \183\ Hackworth
gives a number of other examples of the ``President acting
alone,'' including the terminations of a 1926 convention with
Mexico for the prevention of smuggling in 1927; a 1927
convention for the abolition of import and export prohibition
and restriction in 1933; an 1871 Treaty of Commerce and
Navigation with Italy in 1936; and a 1911 commercial treaty
with Japan in 1939.\184\ Henkin adds to the list President
Roosevelt's termination of an extradition treaty with Greece in
1933 because Greece had refused to extradite a particular
fugitive (Mr. Insull).\185\ President Johnson in 1965 gave
notice of the withdrawal of the United States from the
Convention for the Unification of Certain Rules Relating to
International Transportation by Air (the Warsaw
Convention),\186\ although he subsequently withdrew it 1 day
before the denunciation would have taken effect.\187\
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\183\ V Hackworth, supra, pp. 330-331.
\184\ Ibid., pp. 329-332.
\185\ Henkin, supra, p. 212.
\186\ 49 Stat. 3000; TS 876; 2 Bevans 983.
\187\ See Senate Foreign Relations Committee Print, Termination of
Treaties: The Constitutional Allocation of Power (1978), pp. 397-398,
for additional examples given by the Department of State Legal Adviser.
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As already noted, President Carter, on December 15, 1978,
gave notice of termination of the Mutual Defense Treaty with
Taiwan. This action not only was taken without prior or
subsequent authorization of Congress or of the Senate but in
the face of an expression of the sense of Congress ``that there
should be prior consultation between the Congress and the
executive branch on any proposed policy changes affecting the
continuation in force of the Mutual Defense Treaty of 1954.''
\188\
---------------------------------------------------------------------------
\188\ 92 Stat. 730, 746 (1978).
---------------------------------------------------------------------------
President Reagan also unilaterally terminated a treaty with
little apparent protest that Congress was not involved. On May
1, 1985, he ordered the imposition of economic sanctions
against Nicaragua under the general authority of the
International Emergency Economic Powers Act. These sanctions
included notification of the intent to terminate the Treaty of
Friendship, Commerce, and Navigation with Nicaragua. After the
required waiting period of 1 year, the treaty was
terminated.\189\
---------------------------------------------------------------------------
\189\ U.S. Congress. House. Committee on Foreign Affairs. Congress
and Foreign Policy, 1985-1986 (99th Cong.), p. 7.
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Finally, it should be noted that in one instance Congress
adopted a statute that purported to terminate treaties of its
own force, without the necessity of any notice by the
President. On July 7, 1798, President Adams signed into law a
measure providing ``[t]hat the United States are of right freed
and exonerated from the stipulations of the treaties, and of
the consular convention, heretofore concluded between the
United States and France; and that the same shall not
henceforth be regarded as legally obligatory on the government
or citizens of the United States.'' \190\ In the 1856 report of
the Senate Foreign Relations Committee previously referred to,
this action by the Congress was viewed as being tantamount to a
declaration of war.\191\ In fact, 2 days following its passage,
the Congress authorized hostilities against France, and in Bas
v. Tingy the Supreme Court regarded these acts as, in effect,
declaring war.\192\ It might be noted, however, that France
refused to recognize the abrogation of the treaties.\193\
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\190\ Act of July 7, 1798; 1 Stat. 578.
\191\ S. Rept. 97, 34th Cong., 1st Sess., pp. 4-5.
\192\ 4 Dall. (4 U.S.) 37 (1800).
\193\ Moore, John Bassett. A Digest of International Law, Vol 5.
U.S. Government Printing Office, 1906, pp. 608 et seq. A century later,
Congress' action was held to have effectively terminated the treaties
both municipally and internationally. See Hooper v. United States, 22
Ct. Cl. 408, 425-26 (1887). Cf. Ship James Williams v. United States,
37 Ct. Cl. 303 (1902).
---------------------------------------------------------------------------
The arguments in support of the respective claims of the
President and the Congress as regards the proper method of
terminating treaties turn on a number of factors. The Senate's
role in treaty termination is said to derive from its
participation in treatymaking. With respect to the
congressional role, much weight is given to a treaty's status
as law pursuant to Article VI of the U.S. Constitution, that
is, to the distinction between a treaty as an international
compact, and, under American law, as domestic law. Arguments on
behalf of Presidential claims focus prominently on his
preeminent position in foreign affairs.\194\
---------------------------------------------------------------------------
\194\ See Committee Print, supra, note 17, pp. 145 and 395 for
elaboration of these views by former Senator Barry Goldwater and State
Department Legal Adviser Herbert J. Hansel.
---------------------------------------------------------------------------
executive agreements
As indicated at various points in the foregoing discussion,
the President's authority to terminate executive agreements, in
particular sole executive agreements, has not been seriously
questioned in the past. To the extent that the agreement in
question is authorized by statute or treaty, its mode of
termination likely could be regulated by appropriate language
in the authorizing statute or treaty. Thus, the Restatement
(Third) states: ``If the United States Senate, in giving
consent to a treaty, declares that it does so on condition that
the President shall not terminate the treaty without the
consent of Congress or of the Senate, or that he shall do so
only in accordance with some other procedure, that condition
presumably would be binding on the President if he proceeded to
make the treaty. * * * Congress could impose such a condition
in authorizing the President to conclude an executive agreement
that depended on Congressional authority.'' \195\
---------------------------------------------------------------------------
\195\ Rest. 3d, supra, Sec. 339, Comment a (emphasis added).
---------------------------------------------------------------------------
In the Comprehensive Anti-Apartheid Act of 1986 Congress
mandated the termination, in accordance with its provisions, of
an executive agreement between the United States and South
Africa, namely, the Agreement Between the Government of the
United States of America and the Government of the Union of
South Africa Relating to Air Services Between Their Respective
Territories.\196\
---------------------------------------------------------------------------
\196\ Public Law 99-440, supra, note 167, Sec. 306(b)(1). The
agreement provided for termination upon 1 year's notice, and the
Secretary of State gave the required notice. But the Act also directed
the Secretary of Transportation to revoke the permit of any air carrier
designated by the government of South Africa to provide service under
the agreement 10 days after the Act's enactment. Upon suit challenging
the Secretary's revocation of the permit of South African Airways
pursuant to this provision as a violation of the agreement, the
revocation was upheld on the grounds that a statute can supersede an
international agreement. South African Airways v. Dole, 817 F. 2d 119
(D.C. Cir.), cert. den., 484 U.S. 896 (1987).
X. CONGRESSIONAL OVERSIGHT OF INTERNATIONAL AGREEMENTS \1\
---------------------------------------------------------------------------
\1\ Prepared by Marjorie Ann Browne, Specialist in International
Relations and Lois B. McHugh, Analyst in International Relations.
---------------------------------------------------------------------------
----------
A major problem for the legislative branch in the foreign
policy area has been the tendency of the executive branch to
make important international agreements by executive power
alone, bypassing the advice and consent role of the Senate in
treaty approval and sometimes failing to inform Congress of
agreements with other countries that are considered binding
under international law. Two objectives have predominated
congressional perspectives on this issue. The first has been to
ensure that Congress is aware of all important U.S. agreements.
The second has been to provide a process which will ensure that
important U.S. commitments are made with legislative approval.
The primary tools available to Congress for its oversight
of international agreements, especially international
agreements other than treaties, start with the Case-Zablocki
Act on transmittal of international agreements other than
treaties.\2\ Other tools include consultations on the form of
agreements; legislation to implement concluded agreements;
legislation requiring congressional approval of concluded
agreements; required reports to Congress on some aspect of
international agreements; consultation between Members or
congressional staff and appropriate executive branch officials;
and hearings. This chapter discusses these and other tools for
congressional oversight.
---------------------------------------------------------------------------
\2\ Public Law 92-403, ``An Act to require that international
agreements other than treaties, hereinafter entered into by the United
States, be transmitted to the Congress within sixty days after the
execution thereof.'' This law is often referred to as the Case-Zablocki
Act, or the Case Act for short.
---------------------------------------------------------------------------
A. The Case Act \3\
---------------------------------------------------------------------------
\3\ Ibid.
---------------------------------------------------------------------------
The fundamental thrust of the Case Act is that the
executive branch transmit to the Congress within 60 days after
entry into force, the text of all international agreements not
submitted to the Senate as treaties. All forms of agreements,
whether written or oral, classified or unclassified, negotiated
by the State Department or by other executive agencies, are
included in the requirement. The goal is to ensure
congressional knowledge of commitments made by the executive
branch on behalf of the U.S. Government. Passage of the
legislation has its roots in a number of earlier congressional
efforts.
origins
Provisions for publication
Congress historically tried to ensure that it receive
copies of all treaties and agreements entered into force on
behalf of the United States. The Public Printing Act of 1895
required the Secretary of State, at the end of each Congress,
to edit, print, bind, and distribute the Statutes at Large that
would include not only ``all laws, joint and concurrent
resolutions passed by Congress,'' but ``also all conventions,
treaties, proclamations, and agreements.'' (28 Stat. 615) The
language in this Act was further refined in 1938, to include:
all treaties to which the United States is a party
that have been proclaimed since the date of the
adjournment of the regular session of Congress next
preceding; all international agreements other than
treaties to which the United States is a party that
have been signed, proclaimed, or with reference to
which any other final formality has been executed,
since that date; \4\
---------------------------------------------------------------------------
\4\ 52 Stat. 760. The full citation follows: Printing Act, Chapter
23, section 73 (28 Stat. 615), approved January 12, 1895; amended by
Public Law 657, 75th Cong., approved June 16, 1938, 52 Stat. 760.
In practice, a number of agreements escaped publication.
In 1909, the Senate, in S. Res. 252, 60th Congress, authorized
preparation, under the Senate Committee on Foreign Relations,
of a ``compilation of treaties, conventions, important
protocols, and international acts to which the United States
may have been a party from 1778 to March 4, 1909, and such
other material pertaining to treaties as may be recommended for
insertion * * * by the Secretary of State.'' The resulting
compilation eventually covered 1776 through 1937 and was the
only official comprehensive collection of U.S. treaties and
international agreements covering that period.\5\ In the
interim period between 1938 and 1949, a hodgepodge of published
bits and pieces was developed. The State Department issued as
individual pamphlets the Executive Agreements Series (EAS) and
Treaty Series (TS) until 1945 when the Treaties and Other
International Acts Series (TIAS) replaced them as the form for
the texts of individual agreements. Until the collection
compiled under Charles Bevans was completed, no official
consolidation of all U.S. treaties and international agreements
concluded between 1937 and 1950 had been published.\6\
---------------------------------------------------------------------------
\5\ Treaties, Conventions, International Acts, Protocols, and
Agreements Between the United States and Other Powers. Volumes 1 and 2,
covering 1776-1909, were compiled by William M. Malloy; the third,
covering 1910-1923, by C.F. Redmond; and the fourth volume, covering
1923-1937, was compiled by Edward J. Trenwith. Washington, D.C., U.S.
Government Printing Office, 1910-1938.
\6\ Treaties and Other International Agreements of the United
States of America, 1776-1949. Compiled under the direction of Charles
I. Bevans. Washington, D.C., U.S. Government Printing Office, 1968-1974
and 1976; 13 vols.
---------------------------------------------------------------------------
In 1950, when the function of publishing the U.S. Statutes
at Large was transferred from the Secretary of State to the
Administrator of General Services, Congress required the
Secretary to publish, starting January 1, 1950,
a compilation entitled ``United States Treaties and
Other International Agreements,'' which shall contain
all treaties to which the United States is a party that
have been proclaimed during each calendar year, and all
international agreements other than treaties to which
the United States is a party that have been signed,
proclaimed, or with reference to which any other final
formality has been executed, during each calendar
year.\7\
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\7\ 64 Stat. 980; 1 U.S.C. Sec. 112a.
The 1895 Act had provided that a copy of the Statutes at
Large would be automatically provided to the office of each
Member of the House and Senate. The 1950 revision of section
112 and addition of section 112a did not provide for
distribution to offices in this manner. Public Law 94-59, in
1975, stipulated that copies of the U.S. Treaties and Other
International Agreements series would not be available to
Senators and Representatives unless specifically requested in
writing.\8\
---------------------------------------------------------------------------
\8\ 89 Stat. 296.
---------------------------------------------------------------------------
The inability of the State Department to publish promptly
international agreements that had entered into force,
accompanied by a near absence of public requests for copies of
those agreements still unpublished, led to Congressional
amendment in 1994 of 1 U.S.C. 112a.\9\ Section 138 of the
Foreign Relations Authorization Act, Fiscal Years 1994 and 1995
(Public Law 103-236) which authorized the Secretary of State to
determine that certain categories of international agreements
do not require publication.\10\ Based on the criteria set forth
in section 138, the Secretary of State issued a proposed rule
or determination in October 1995 that was published as a final
rule on February 26, 1996, listing the following categories of
agreements as not requiring publication:
---------------------------------------------------------------------------
\9\ Federal Register, October 23, 1995: 54319.
\10\ Section 138. ``Publishing International Agreements.'' listed
``the following criteria: (1) such agreements are not treaties * * *
pursuant to section (2)(2) of Article II of the Constitution * * *; (2)
the public interest in such agreements is insufficient to justify their
publication, because (A) as of the date of enactment of the Foreign
Relations Authorization Act, Fiscal Years 1994 and 1995, the agreements
are no longer in force, (B) the agreements do not create private rights
or duties, or establish standards intended to govern government action
in the treatment of private individuals; (C) in view of the limited or
specialized nature of the public interest in such agreements, such
interest can adequately be satisfied by an alternative means; or (D)
the public disclosure of the text of the agreement would, in the
opinion of the President, be prejudicial to the national security of
the United States; and (3) copies of such agreements * * * will be made
available by the Department of State upon request.''
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(1) Bilateral agreements for the rescheduling of
intergovernmental debt payments;
(2) Bilateral textile agreements concerning the
importation of products containing specified textile
fibers done under the Agricultural Act of 1956, as
amended;
(3) Bilateral agreements between postal
administrations governing technical arrangements;
(4) Bilateral agreements that apply to specified
military exercises;
(5) Bilateral military personnel exchange agreements;
(6) Bilateral judicial assistance agreements that
apply only to specified civil or criminal
investigations or prosecutions;
(7) Bilateral mapping agreements;
(8) Tariff and other schedules under the General
Agreement on Tariffs and Trade and under the Agreement
of the World Trade Organization;
(9) Agreements that have been given a national
security classification pursuant to Executive Order No.
12958 or its successors; and (b) Agreements on the
subjects listed in paragraphs (a)(1) through (9) of
this section that had not been published as of February
26, 1996.
While the laws cited above endeavored to ensure that
Congress, and the public, would have access to all treaties and
international agreements other than treaties, no provisions
were made to ensure that the Congress would, in some way, have
access to international agreements not in the public domain,
that is, classified agreements. In addition, experience had
demonstrated that U.S. Government agencies other than the State
Department concluded agreements with other governments and the
texts of those agreements usually were not sent to the State
Department. These so-called agency-to-agency agreements were
another category of agreement not easily accessible to the
Congress.\11\
---------------------------------------------------------------------------
\11\ See below, Impact and Assessments of the Case Act, for
additional discussion of transmittal problems.
---------------------------------------------------------------------------
The Bricker amendment and its legacy
In the 1950s, a number of concerns were expressed by some
in Congress and in other American forums, such as the American
Bar Association, that: (1) rights and freedoms guaranteed by
the Constitution might be altered by treaty; (2) that the
President might ``legislate'' by international agreement or
executive agreement without Senate approval; (3) that the
Federal government might acquire through treaties the power to
legislate in areas primarily within the jurisdiction of the
States; and (4) that treaties might acquire Senate approval by
a vote of only a small number of Members present. These
concerns grew out of the foreign policy activism of the
executive branch during and since World War II. Some Members
were concerned over secret agreements such as those made by
Presidents Franklin Roosevelt and Harry S. Truman with Stalin
at Yalta and Potsdam in 1945, and the extent to which those and
similar agreements might never be routinely shared with the
Senate or with Congress. Others were concerned that active U.S.
participation in the United Nations and U.N.-affiliated
agencies might lead to U.S. adherence to treaties and
agreements that would contravene or abrogate such U.S.
constitutional principles as the reserved powers of the States
and the fundamental freedoms guaranteed and protected in the
bill of rights.
Senator John W. Bricker in late 1951 introduced the first
in a series of resolutions to amend the Constitution with
respect to treaties and executive agreements. The Bricker
amendment, as it was reported by the Senate Judiciary Committee
on June 15, 1953, would have given Congress the power to
regulate all executive and other agreements with any foreign
power or international organization. Additionally, the
amendment would have made any provision of a treaty invalid if
it conflicted with the Constitution and an executive agreement
effective in domestic law only through passage of enacting
legislation. Debate on the Senate floor in January-February
1954 centered around three versions of the Bricker legislation:
the Judiciary Committee amendment; a series of amendments
proposed by Republican leaders, including William F. Knowland
and Homer Ferguson; and a substitute resolution sponsored by
Senator Walter F. George. On February 26, Senator George's
version was agreed to as a substitute for the Republican
leadership amendment. The same day, the George version of the
proposed constitutional amendment failed to pass the Senate
with the required two-thirds majority by one vote.\12\
---------------------------------------------------------------------------
\12\ For history and contextual discussion of the amendment, see
the following: Tananbaum, Duane A. The Bricker Amendment Controversy:
Its Origins and Eisenhower's Role. Diplomatic History, v. 9, Winter
1985: 73-93; Grant, Philip A. The Bricker Amendment Controversy.
Presidential Studies Quarterly, Summer 1985: 572-582; and Reichard,
Gary W. Eisenhower and the Bricker Amendment. Prologue, Summer 1974:
88-99. For legislative history discussion, see Congressional Quarterly
Almanac for the year of interest.
---------------------------------------------------------------------------
Support in the Congress for this type of limitation faded
through the 87th Congress (1961-1962) and disappeared in the
89th Congress (1965-1966).\13\ Senator Bricker introduced a
version of his 1953 resolution in the 84th Congress (1955-1956)
and the Subcommittee on Constitutional Amendments of the Senate
Judiciary Committee held hearings in April and May 1955 that
generated a 1016-page record.\14\ The full committee did not
report the resolution until the following year, offering a
substitute resolution, that was never considered on the Senate
floor. Bricker's final proposal was introduced during the 85th
Congress (1957-1958) and while hearings were held, the
resolution was not reported from committee. After Bricker left
the Senate, other Members of the Senate and House introduced
similar resolutions in the 87th and 88th (House resolutions
only) Congresses, but no action was taken on them.
---------------------------------------------------------------------------
\13\ U.S. Library of Congress. Legislative Reference Service. The
Bricker Amendment and Similar Proposals for Amending the Treaty
Provisions of the Constitution. By Hugh P. Price, Dec. 2, 1964.
\14\ U.S. Congress. Senate. Committee on the Judiciary. Treaties
and Executive Agreements. Hearings before a subcommittee, 84th Cong.,
1st Sess. on S.J. Res. 1, April and May 1955. Washington, U.S.
Government Printing Office, 1955.
---------------------------------------------------------------------------
In 1985 one of the fundamental issues of the Bricker
amendment debate was revived--the question of the supremacy of
the Constitution over treaties. At the initiative largely of
Senator Helms, the Senate included the following language as a
reservation in its resolution of ratification on the U.N.
Convention on the Prevention and Punishment of the Crime of
Genocide:
Nothing in this Convention requires or authorizes
legislation or other action by the United States of
America prohibited by the Constitution of the United
States as interpreted by the United States.
In succeeding Congresses the Senate extended its use of the
condition not only to other human rights treaties but also to
those concerning mutual legal assistance and extradition.
Beginning with the 105th Congress, the Senate began including
the condition in the resolutions of ratification on virtually
all treaties. As the result of compromises achieved in the late
1980s and early 1990s, however, the condition is no longer in
the form of a reservation (which requires notice to, and
agreement by, the other party or parties to the treaty) but is
now expressed as a proviso.\15\
---------------------------------------------------------------------------
\15\ For a more detailed description of the evolution of this
condition, see the section in Chapter VI on the ``Condition Regarding
Supremacy of the Constitution.''
---------------------------------------------------------------------------
National commitments concerns
Congress became concerned in the late 1960s over the
impact of U.S. involvement in other countries, such as Vietnam,
and how the United States became heavily committed militarily
in such countries. During August 1966 and February and March
1967, the Preparedness Investigating Subcommittee of the Senate
Committee on Armed Services held hearings on worldwide military
commitments. These were followed in August and September 1967
by hearings before the Senate Foreign Relations Committee on
U.S. commitments to foreign powers, focusing on S. Res. 151, a
resolution on national commitments.
On January 23, 1969, the Foreign Relations Committee
created a Subcommittee on U.S. Security Agreements and
Commitments Abroad (known as the Symington Subcommittee after
its chairman, Senator Stuart Symington) for the duration of the
91st Congress. This subcommittee uncovered significant
information previously unknown to Congress about various
security arrangements with other countries that had been made
by executive agreement. The information gathered by the
subcommittee was instrumental in the passage of other
legislation in the area of executive agreements and secret
commitments.\16\
---------------------------------------------------------------------------
\16\ Over a 22-month period, this subcommittee ``held 37 days of
hearings, with 48 witnesses covering U.S. military forces, facilities
and security programs in 13 countries, plus NATO.'' See U.S. Congress.
Senate. Committee on Foreign Relations. Subcommittee on United States
Security Agreements and Commitments Abroad. United States Security
Agreements and Commitments Abroad, Hearings, 91st Congress. Washington,
U.S. Government Printing Office, 1970. 2 v., 2442 p. (Issued initially
in 11 different parts; final publication in 2 volumes)
---------------------------------------------------------------------------
Meanwhile, on June 25, 1969, the Senate passed a national
commitments resolution, S. Res. 85, expressing its sense that a
U.S. national commitment should result ``only from affirmative
action taken by the executive and legislative branches of the
United States Government by means of a treaty, statute, or
concurrent resolution of both houses of Congress specifically
providing for such commitment.'' The resolution was not legally
binding on the President since it was not legislation, as was
the War Powers Resolution. As a statement of Senate policy,
however, the resolution established a guidepost that might be
used in tracking future presidential actions.
In December 1970, the Symington Subcommittee concluded its
lengthy investigations with a report, ``Security Agreements and
Commitments Abroad,'' that included a number of observations
and recommendations over the use or failure to use treaties and
executive agreements in the making of national commitments. The
subcommittee recommended that appropriate congressional
committees
request and receive full information on all
understandings and agreements of a security nature
which are undertaken between the United States and
foreign countries or their leaders. Where appropriate,
the proper committees should, in executive session, be
informed on the progress of negotiations to this
end.\17\
---------------------------------------------------------------------------
\17\ U.S. Congress. Senate. Committee on Foreign Relations.
Subcommittee on United States Security Agreements and Commitments
Abroad. Security Agreements and Commitments Abroad; report. Washington,
U.S. Government Printing Office, 1970. (91st Cong., 2d Sess. Committee
Print.) p. 28.
Congressional concerns over U.S. national commitments did
not diminish in the 1990s. In November 1990, Congress required
the President annually to report to the House and Senate Armed
Services Committees and to the House Foreign Affairs and Senate
Foreign Relations Committees on U.S. security arrangements
with, and commitments to, other nations.\18\ The fundamental
concern of this Senate-initiated provision was with the
``ability of the United States to meet worldwide commitments in
the future,'' taking into account the ``sizing down'' of
defense budgets and reduced force structure. The Senate Armed
Services Committee believed it appropriate that a review be
done to determine whether or not these commitments were ``still
necessary in the changing international environment.'' \19\
This report was transmitted to the required committees in 1991
and 1992.
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\18\ National Defense Authorization Act for Fiscal Year 1991,
Section 1457, Public Law 101-510, approved November 5, 1990. The study
shall include, (1) A description of (A) each security arrangement with,
or commitment to, other nations, whether based upon (i) a formal
document (including a mutual defense treaty, a pre-positioning
arrangement or agreement, or an access agreement), or (ii) an expressed
policy; and (B) the historical origins of each such arrangement or
commitment. (2) An evaluation of the ability of the United States to
meet its commitments based on the projected reductions in the defense
structure of the United States. (3) A plan for meeting each of those
commitments with the force structure projected for the future. (4) An
assessment of the need to continue, modify, or discontinue each of
those arrangements and commitments in view of the changing
international security situation. See Chapter XI, for discussion of the
1992 report.
\19\ Senate Report 101-384, p. 238 (101st Cong., 2d Sess.).
---------------------------------------------------------------------------
Military base agreements (Spain, Portugal, Bahrain)
Another recommendation of the Symington Subcommittee urged
that Congress ``take a realistic look at the authority of the
President to station troops abroad and establish bases in
foreign countries.'' \20\ Referring to a practice of ``creeping
commitment,'' the subcommittee observed that
---------------------------------------------------------------------------
\20\ Ibid., p. 28.
---------------------------------------------------------------------------
Overseas bases, the presence of elements of United
States armed forces, joint planning, joint exercises,
or extensive military assistance programs represent to
host governments more valid assurances of United States
commitment than any treaty or executive agreement.\21\
---------------------------------------------------------------------------
\21\ Ibid., p. 20.
This issue came to the fore in early August 1970, when the
Nixon Administration concluded an executive agreement with
Spain extending the original 1953 agreement governing American
use of bases in Spain (the agreement had already been extended
in 1963). A number of Senators expressed displeasure that the
agreement was not being negotiated as a treaty. Senator J.
William Fulbright, chairman of the Senate Foreign Relations
Committee, argued that ``This Spanish agreement is a classic
example of how to enlarge the commitments of this country by
secret agreements and executive agreements without the approval
of Congress.'' \22\ On December 11, 1970, the Senate agreed to
S. Res. 469 (91st Congress), expressing the sense of the Senate
that nothing in the executive agreement with Spain should be
deemed to be a national commitment by the United States. In
1976, a Treaty of Friendship and Cooperation with Spain that
included provisions on use of the bases was finally concluded
as a treaty and approved by the Senate. In 1981, the Senate
Foreign Relations Committee agreed that future base agreements
with Spain could be concluded as executive agreements after
Spain became a member of NATO, a step finalized in May 1982.
---------------------------------------------------------------------------
\22\ Fulbright, James W. Spanish Bases. Congressional Record vol.
129, part 20, July 31, 1970: 28791.
---------------------------------------------------------------------------
In December 1971, the Nixon Administration concluded
executive agreements with Portugal and Bahrain, providing for
continued stationing of U.S. military personnel at a base in
the Azores and continued use of support facilities in Bahrain.
In response to this action, several members of the Senate
Foreign Relations Committee introduced S. Res. 214, that any
agreement with Portugal ``should be submitted as a treaty to
the Senate for advice and consent.'' In January 1972, Senator
Clifford Case introduced an amendment to the resolution, to the
effect that the agreement with Bahrain should also be submitted
to the Senate as a treaty. In reporting favorably on S. Res.
214, the committee recalled that ``no lesson'' had been learned
from the experience with the Spanish base agreement. These two
agreements, the committee report continued, raised ``important
foreign policy questions'' and the ``submission of these
agreements as treaties * * * is the best and most appropriate
way'' of scrutinizing these questions.\23\ As passed by the 92d
Congress in March 1972, S. Res. 214 stated that ``any agreement
with Portugal or Bahrain for military bases or foreign
assistance should be submitted as a treaty to the Senate for
advice and consent.'' Neither of these resolutions had the
force of law. Over the following 2 years, unsuccessful attempts
were made in Congress to tie appropriation of funds to
implement these agreements to their being submitted as
treaties.
---------------------------------------------------------------------------
\23\ U.S. Congress. Senate. Committee on Foreign Relations.
Agreements with Portugal and Bahrain. Report to Accompany S. Res. 214.
Washington, U.S. Government Printing Office, 1972. (92d Cong., 2d Sess.
S. Rept. No. 92-632) pp. 5, 8.
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Separation of Powers Subcommittee approach
In spring 1972, a few months before adoption of the Case
Act, another series of legislative proposals became the focus
of hearings and legislative debate. The overall thrust of the
proposals, spearheaded by Senator Sam Ervin, was a requirement
that all international agreements other than treaties be
transmitted to Congress 60 days before their entry into force.
Congress would have the opportunity to adopt a resolution of
disapproval before the expiration of the 60-day waiting period.
In the absence of a disapproval resolution, the agreements
would enter into force at the end of the 60-day period.
Ultimately, none of these proposals was enacted.
The original legislation (S. 3475, 92d Congress) was
introduced in April 1972, with 5 days of hearings concluding on
May 19, 1972. Senator Ervin, who chaired the Separation of
Powers Subcommittee of the Senate Judiciary Committee,
reintroduced the legislation in 1973 (S. 1472, 93d Congress)
and, in 1974, in S. 3830 (93d Congress), added a section that,
in effect, removed from coverage most executive agreements.
Section 4 of S. 3830 provided that executive agreements
negotiated pursuant to a provision of the Constitution or to
prior authority in treaty or law would not come under the
procedures set forth in S. 3830. In November 1974, the Senate
passed S. 3830, which was not considered in the House. While
Senator Ervin's service in the Senate ended in 1974, his
legislative proposal was reintroduced in 1975, with the
Separation of Powers Subcommittee holding 4 days of hearings in
May and July 1975 on S. 632 and S. 1251 (94th Congress). The
House International Relations Committee (the House Foreign
Affairs Committee), in 1976, held 6 days of hearings on similar
legislative proposals (H.R. 4438). No further legislative
action, beyond the hearings, was taken on any of these
proposals.\24\
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\24\ More extensive discussion of the legislative proposals with
citations to hearings and reports may be found in the following
publications: U.S. Congress. House. Committee on International
Relations. Congress and Foreign Policy--1975. Washington, U.S.
Government Printing Office, 1976. See pp. 45-48. Congressional
Oversight of Executive Agreements; U.S. Congress. House. Committee on
International Relations. Congress and Foreign Policy--1976. Washington,
U.S. Government Printing Office, 1977. See pp. 11-18. Executive
Agreements and Treaties.
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intent and content of the case act
In response to the secret agreements uncovered during the
Symington Subcommittee hearings, Senator Clifford P. Case in
December 1970, introduced the legislation that became the Case-
Zablocki Act. Senator Case recalled that an earlier version of
the legislation had been proposed in 1954, 1955, and 1957 by
Senators Homer Ferguson and William F. Knowland as an
alternative to the Bricker amendment. The earlier bills, which
called for submission of all executive agreements to the Senate
within 60 days after entry into force, were passed by the
Senate in the 84th and 85th Congresses but not acted on by the
House.\25\ Senator Case revised the Ferguson-Knowland bills to
include the House. He reintroduced the legislation in February
1971 as S. 596, and it successfully proceeded through the
legislative process to become Public Law 92-403.\26\ House
companion bills had been introduced in April 1972 by
Representatives Clement Zablocki and Charles Whalen.
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\25\ In the 83d Congress, S. 3067 was introduced in March 1954 and
reported to the Senate in August 1954, but not passed by the Senate. In
the 84th Congress, S. 147 was introduced in January 1955, reported to
the Senate in July 1956, and passed by the Senate in July 1956. In the
85th Congress, S. 603 was introduced in January 1957, reported to the
Senate in June 1957, and passed by the Senate in June 1957.
\26\ Legislative history of Public Law 92-403 follows: Feb. 4,
1971: S.596 introduced. Oct. 20 and 21, 1971: Public hearings, Senate
Foreign Relations Committee. Printed. Dec. 7, 1971: Ordered reported.
Jan. 19, 1972: Reported to the Senate, S. Rept. 92-591. Feb. 16, 1972:
Passed Senate, 81-0. Feb. 17, 1972: Referred to House Foreign Affairs
Committee. June 19, 1972: Public hearings by Subcommittee on National
Security Policy and Scientific Developments. Printed. Aug. 3, 1972:
Passed full House committee, ordered reported, and reported to the
House, H. Rept. 92-1301. Aug. 14, 1972: Passed House. Voice vote. Aug.
22, 1972: Approved. Public Law 92-403.
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The Case Act requires the executive branch to keep
Congress informed of all international agreements concluded by
the United States, including those of a sensitive nature. The
Senate Foreign Relations Committee described the bill as ``an
effective means of dealing with the prior question of secrecy
and of asserting the obligation of the executive to report its
foreign commitments to Congress.'' \27\ The House Foreign
Affairs Committee described S. 596 as ``a step toward restoring
a proper working relationship between the Congress and the
executive branch in the area of foreign affairs. By
establishing in law a formal procedure for the transmittal to
Congress of all executive agreements, the bill would eliminate
one potential source of friction.'' \28\
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\27\ U.S. Congress. Senate. Committee on Foreign Relations.
Transmittal of Executive Agreements to Congress. Report to accompany S.
596. S. Rept. 92-591, 92d Cong., 2d Sess. Washington, U.S. Government
Printing Office, 1972, p. 5.
\28\ U.S. Congress. House. Committee on Foreign Affairs.
Transmittal of Executive Agreements to Congress. Report to accompany S.
596. H. Rept. 92-1301, 92d Cong., 2d Sess. Washington, U.S. Government
Printing Office, 1972, p. 2.
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The act was not retroactive and required transmittal only
of agreements made after the legislation took effect. The
Senate report noted that the committee expected the executive
branch to make all such previously enacted agreements available
to the Congress or its foreign affairs committees at their
request and in accordance with the procedures defined in the
bill.
As originally enacted, the law had two provisions. First,
it required the Secretary of State to transmit to Congress the
text of any international agreement other than a treaty as soon
as practicable but no later than 60 days after it entered into
force. Second, those agreements which the President determined
should be classified would be transmitted not to Congress as a
whole, but to the House Foreign Affairs Committee and the
Senate Foreign Relations Committee under an injunction of
secrecy to be removed only upon notice from the President.
implementation, 1972-1976
Passage of the Case Act established the basic obligation
for the transmittal by the Secretary of State to Congress of
any international agreement other than a treaty within 60 days
after its entry into force. Implementation of this obligation
started immediately and satisfactorily. However, Senator Case,
concerned over Administration inferences during Senate
consideration of the legislation that ``certain kinds of
agreements'' might not be transmitted under the Act, sought a
clarification of this point from the State Department. In
response to the committee's request for ``a written statement
defining executive agreements and listing specifically the
kinds of agreements that will be submitted and whether there
are any categories of agreements that the Department believes
are not covered by the Case Act,'' the State Department's
Acting Legal Adviser, Charles N. Brower, submitted the
following:
The expression ``executive agreement'' is understood
by the Department of State to include any international
agreement brought into force with respect to the United
States without the advice and consent of the Senate
under the provisions of clause 2 of Section 2, Article
II of the Constitution of the United States. The words
``all international agreements other than treaties to
which the United States is a party'' in the act of
September 23, 1950 (paragraph 2, 64 Stat. 980; 1 U.S.C.
112a) and the words, ``any international agreement,
other than a treaty, to which the United States is a
party'' in the Case Act (86 Stat. 619; U.S.C. 112b) are
considered as including all international agreements
covered by the expression ``executive agreement.''
Accordingly, the Department of State considers the
Case Act as covering ``all international agreements
other than treaties'' specified in the act of September
23, 1950, and required by that act to be published in
the new compilation entitled ``Treaties and Other
International Agreements of the United States: (UST),''
plus comparable agreements that are classified in the
interest of national security and not published in that
compilation.\29\
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\29\ Case, Clifford P. Cooperation of Department of State under
Public Law 92-403. Congressional Record, vol. 119, part 16, June 18,
1973: 1974.
On the question of the kinds of agreements that would be
submitted, the Legal Adviser reported that the ``Department
considers that the Case Act is intended to include every
international agreement, other than a treaty, brought into
force with respect to the United States after August 22, 1972,
regardless of its form, name or designation, or subject
matter.'' \30\
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\30\ Ibid.
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Senator Case noted his agreement with the ``State
Department's interpretation'' and for the record listed the
following as among the types of agreements the committees would
regularly receive:
Intelligence agreements;
Nuclear basing agreements;
Presidential executive agreements;
Intergovernmental agreements between Cabinet or
independent agencies in the United States and their
foreign counterparts;
Nuclear technology sharing agreements;
International trade agreements;
Military and economic assistance agreements;
Agreements with foreign intelligence agencies; and
Contingency agreements with countries with which the
United States does not have security commitments by
treaty.\31\
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\31\ Ibid.
Senator Case added that this list should not be considered all
inclusive and did not preclude Congress receiving other types
of agreements.
Finally, the Department of State also agreed to provide to
Congress certain material requested by the Chairman of the
Foreign Relations Committee, Senator William Fulbright,
concerning classified agreements. Senator Fulbright had
requested that ``each classified executive agreement
transmitted to the committee be accompanied by an explanation
of the agreement, background information on its negotiations,
and a statement of its effect.'' The Congressional Relations
office of the Department of State indicated its willingness to
``provide the information * * * requested,'' concluding ``we
are initiating immediately the steps necessary to insure that
classified agreements transmitted * * * under the Act will be
accompanied by appropriate background information.'' \32\
---------------------------------------------------------------------------
\32\ Ibid.
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Earlier in 1973, the General Accounting Office (GAO) found
that executive branch agencies had concluded U.S. executive
agreements and arrangements to provide substantial assistance
to seven countries that contributed forces to Vietnam without
notification of these agreements to Congress. In view of the
Case Act, the GAO recommended that the Secretary of State,
--Establish procedures to require that all agreements
be subject to his approval. This would include those
subordinate to or designed to implement basic
government-to-government agreements which commit the
United States to specific performance requiring
expenditure of substantial amounts of money.
--Require a central repository to be established
within the State Department for all such international
agreements, arrangements, and commitments, similar to
the one now in existence for treaties.
--Provide annually to the appropriate committees of
the Congress a list and description of all such
agreements, together with estimates of the future
years' costs that each agreement involves.\33\
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\33\ U.S. General Accounting Office. U.S. Agreements with and
Assistance to Free World Forces in Southeast Asia Show Need for
Improved Reporting to the Congress. Report of the Comptroller General.
April 24, 1973. Washington, 1973. 5 p. (B-159451) See pp. 1, 4-5. An
unclassified digest furnished in lieu of a report containing classified
security information.
This report highlighted the need to ensure that the State
Department had copies of all executive agreements concluded
with other countries by various agencies of the government. In
response, on September 6, 1973, Acting Secretary of State
Kenneth Rush sent a letter to all executive branch departments
and agencies concerning the State Department's obligation under
the Case Act to transmit all agreements to the Congress. In
part, the letter read,
it seems clear that texts should be transmitted to the
Department of State of [all subordinate and
implementing agreements involving substantial amounts
of U.S. funds or other tangible assistance] and of any
agreements of political significance, any that involve
a substantial grant of funds, any involving loans by
the United States or credits payable to the United
States, any that constitute a commitment of funds that
extends beyond a fiscal year or would be a basis for
requesting new appropriations, and any that involve
continuing or substantial cooperation in the conduct of
a particular program or activity, such as scientific,
technical, or other cooperation, including the exchange
or receipt of information and its treatment. In
general, the instruments transmitted to the Congress
pursuant to the Case Act, and those published (other
than those classified under E.O. 11652), should reflect
the full extent of obligations undertaken by the United
States and of rights to which it is entitled pursuant
to instruments executed on its half.
The fact that an agency reports fully on its
activities to a given Committee or Committees of
Congress, including a discussion of agreements it has
entered into, does not exempt the agreements concluded
by such agency from transmission to the Congress by the
Department of State under the Case Act.\34\
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\34\ Rovine, Arthur W. Digest of United States Practice in
International Law, 1973. Washington, D.C., U.S. Government Printing
Office, 1974. pp. 187-188. Text may be seen in its entirety in U.S.
General Accounting Office. U.S. Agreements with the Republic of Korea;
Departments of State and Defense. Report of the Comptroller General of
the United States. February 20, 1976. Washington, 1976. See Appendix
III, pp. 22-24.
In August 1973, the Department of State initiated plans to
revise its Circular 175 procedures, issued in the Foreign
Affairs Manual, an internal instruction for State Department
personnel. The proposed revision, incorporating changes
reflecting the Case Act obligations, among other things, was
published in the Federal Register because of ``the public
interest in the manner in which treaties and other
international agreements are entered into by the United
States.'' \35\
---------------------------------------------------------------------------
\35\ Treaties and Other International Agreements; Notice of
Proposed Rulemaking. Federal Register, v. 38, no. 157, August 15, 1973:
22084f.
---------------------------------------------------------------------------
Congressional concerns over gaps in the transmittal of
agreements and lack of clarity over what constituted an
executive agreement persisted in 1974 and 1975. In April 1975,
Senator James Abourezk, chairman of the Senate Judiciary
Committee's Subcommittee on Separation of Powers, asked the
General Accounting Office to explore whether all agreements
with Korea had been transmitted under the Case Act and whether
there were any oral agreements that had not been reduced to
writing. In February 1976, the GAO responded, identifying 34
agreements made since 1972 between the United States and South
Korea which had not been transmitted to Congress by the State
Department since they had never been sent to the State
Department, as required by the Rush letter.\36\ In response,
the Department of State circulated to ALL DIPLOMATIC POSTS an
airgram dated March 9, 1976, outlining ``Case Act Procedures
and Department of State Criteria for Deciding What Constitutes
an International Agreement.'' A copy of the Case Act and the
Rush letter accompanied the Airgram. A similar letter, under
the same title, was sent to Key Department Personnel on March
12, 1976.
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\36\ U.S. General Accounting Office. U.S. Agreements with the
Republic of Korea, Departments of State and Defense. Report of the
Comptroller General of the United States. February 20, 1976.
Washington, 1976. (ID-76-20; B-110058)
---------------------------------------------------------------------------
One of the concerns expressed at the time the Case Act was
enacted was the quantity of agreements to be transmitted.
Initial discussions between the State Department's Legal
Adviser and the Senate Foreign Relations and House Foreign
Affairs Committees dwelt on assurances that all agreements
other than treaties would be transmitted. In 1976, the focus of
attention turned to consultations on agreements that might not
be transmitted. The proliferation of transmitted agreements was
especially large for those negotiated by the Agency for
International Development (AID). According to the Legal
Adviser, many of the agreements were for relatively small
amounts of money and AID already reported regularly to Congress
on its activities and programs. In a letter to Foreign
Relations Committee Chairman John Sparkman dated May 27, 1976,
Legal Adviser Monroe Leigh wrote:
Subject to your concurrence and that of Chairman
Morgan of the House Committee on International
Relations, it has been agreed that the Department of
State will submit to the Congress pursuant to the Case
Act any international agreement or amendment thereto
entered into by the Agency for International
Development with a foreign government or international
organization which provides that the United States will
contribute at least $1 million in support of the
project or projects set forth in the agreement.
This $1 million limitation will be subject to three
exceptions. First, it is understood that all AID
agreements with foreign governments or international
organizations which have as a principal purpose the
establishment of an AID program will be submitted * *
*.
Second, it is agreed that any other AID agreement or
amendment that is significant for reasons other than
level of funding will be submitted to the Congress
pursuant to the Case Act, even if it provides for less
than $1 million * * *.
Finally, it is agreed that any AID agreement with a
foreign country or international organization, without
regard to dollar amount, entered into pursuant to
Section 607 of the Foreign Assistance Act of 1961, as
amended, will be submitted pursuant to the Case Act * *
*.\37\
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\37\ Letter from Monroe Leigh, Legal Adviser, Department of State
to Senator John J. Sparkman, Chairman, Senate Foreign Relations
Committee. Dated May 27, 1976. 2 p. Senate Foreign Relations Committee
files. Section 607 of the Foreign Assistance Act authorizes the
President to furnish services and commodities on an advance-of-funds or
reimbursable basis to countries, international organizations, the
American Red Cross, and voluntary nonprofit relief agencies.
The amount was subsequently raised from $1 million to $25
million.
amendments of the case act, 1977-1978
After nearly 5 years' experience with the Case Act, some
limitations of the original Act became clear. The Case Act was
amended in both 1977 and 1978 to address these limitations.
During 1977, Congress modified the Case Act to require that
Any department or agency of the U.S. Government which
enters into any international agreement on behalf of
the United States shall transmit to the Department of
State the text of such agreement not later than 20 days
after such agreement has been signed.\38\
---------------------------------------------------------------------------
\38\ Section 5, Public Law 95-45, 91 Stat. 244, approved June 15,
1977. This amendment was recommended by the Senate Foreign Relations
Committee in its report to the Senate on H.R. 5040, authorizing
additional appropriations for the Department of State for fiscal year
1977 (S. Rept. 95-99). It was accepted by the Senate on May 11, 1977,
and by the House on May 26, 1977.
The amendment was intended to ensure, by law, that the
Department of State would receive agreements made by other
agencies in a timely manner and thus be able to transmit them
to the Congress within the limits of the Case Act. A 1976
General Accounting Office report had identified the
Department's unsuccessful efforts in acquiring the texts of
agreements concluded by other agencies as a major problem.
In 1978, Congress further amended the Case Act. A major
intent of those amendments was to consolidate, within the
executive branch, the role of the State Department as the
central coordinator for negotiations with other countries and
international organizations and to set forth in U.S. statute
the obligations of the executive branch relative to
international agreements other than treaties. They were added
in the Foreign Relations Authorization Act, Fiscal Year
1979.\39\ The first amendment included ``any oral international
agreement'' within the coverage of the Act, stipulating that
oral agreements must be ``reduced to writing.'' The Foreign
Relations Committee sought to eliminate ``any possible
incentive for entering into certain agreements orally rather
than in writing'' and specifically to ``require the
transmission of intelligence sharing and intelligence liaison
agreements, many of which are oral.'' \40\
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\39\ Section 708, Public Law 95-426, 92 Stat. 993, approved October
7, 1978.
\40\ U.S. Congress. Senate. Committee on Foreign Relations. Foreign
Relations Authorization Act, Fiscal Year 1979. Report on S. 3076.
Washington, U.S. Government Printing Office, 1978. p. 45. (95th Cong.,
2d Sess. S. Rept. 95-842).
---------------------------------------------------------------------------
The rest of the amendments aimed at the problem of
agreements negotiated outside of the State Department although
they apply equally throughout the government. The second
amendment required that the President send to Congress annually
\41\ a report on all agreements which ``during the preceding
year'' were transmitted to Congress after the 60-day period set
forth in the Act. This ``late agreements report'' was to
describe ``fully and completely the reasons for the late
transmittal.'' The committee believed that a report at the
presidential level would bring such noncompliance with the Act
by whatever agency to the President's attention. This report
has been transmitted in typescript form to the Congress in late
February or early March annually. In 1985 and 1986, the
transmittals were in late March and early April, respectively.
The report covering 1981 was published as a House Document,
thereby increasing the availability of the information.\42\
This was a one-time occurrence.
---------------------------------------------------------------------------
\41\ The actual language is ``Not later than March 1, 1979, and at
yearly intervals thereafter.''
\42\ The citation for the 1981 report is 97th Cong., 2d Sess.,
House Document No. 97-148. 12 p.
---------------------------------------------------------------------------
The third amendment required that no agreement be signed
or concluded by any agency in the executive branch without
prior consultation with the Secretary of State. The purpose of
this amendment was to ensure that the Secretary of State was
aware of agreements or classes of agreements being made by
other agencies of the government and to maintain the
Secretary's role as coordinator of negotiations between the
United States and other countries. It also sought to ensure
that the Congress would be consulted under the State
Department's Circular 175 procedures as to whether an agreement
should be an executive agreement or a treaty. The fourth
amendment specified the Secretary of State as the U.S.
Government official with the authority within the executive
branch to determine whether an arrangement with a government
constitutes an international agreement under the Act.
The final amendment required the President to develop
rules and regulations implementing the Case Act and make them
applicable to all agencies. This was to ensure that the Case
Act was applied to the agreements made by any U.S. agencies.
These regulations, ``Coordination and Reporting of
International Agreements,'' were published in final form in the
Federal Register on July 13, 1981, and apply to all
agencies.\43\ They outline the procedures to be followed by all
agencies in consulting with the Secretary of State before
concluding an international agreement and the procedures to be
followed by the State Department in transmitting executive
agreements to Congress.
---------------------------------------------------------------------------
\43\ For text, see Appendix 3. U.S. Department of State. Regulation
108.809. 22 CFR, Part 181. Coordination and Reporting of International
Agreements. Final Rule. Federal Register, v. 46, no. 133, July 13,
1981: 35917-35921.
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The regulation specifies the following criteria for
determining whether an agreement constitutes an executive
agreement that should be reported under the Case Act:
1. The parties must be states, the domestic agencies
of a state, or an international organization and must
intend to be legally bound by the agreement;
2. The agreement must be significant, a determination
based, in part, on application of four additional
elements, namely, that the agreement: have political
significance, involve substantial grants of funds or
credits, constitute a substantial commitment of funds
extending beyond a fiscal year, and involve continuing
and/or substantial cooperation in the conduct of a
program or activity;
3. The agreement must be specific enough in the
undertaking required of the parties as to be legally
enforceable;
4. There must be at least two parties;
5. The agreement normally follows the customary form
for international agreements.
These same criteria apply to agency-level agreements,
implementing agreements, extensions and modifications of
agreements, and oral agreements.
The regulations also set forth the procedures for
consultation with the Department for a determination of the
form of the agreement (whether treaty or executive agreement);
procedures for ensuring that an agreement or class of
agreements is consistent with U.S. foreign policy objectives;
adherence to the 20-day rule for concluded agreements; and
materials required to be transmitted to the Congress.
According to Department of State officials, the process of
gathering the background information desired by Congress and
supplying an official copy of the agreement often takes the
full 60 days specified by the Case Act.\44\
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\44\ Information from Office of Assistant Legal Adviser for Treaty
Affairs, Department of State, February 1993.
---------------------------------------------------------------------------
In 1994, Congress amended the publication section of 1
U.S.C. 112a, authorizing the State Department not to publish
certain categories of agreements after February 26, 1996. See
supra, this chapter, first section.
committee procedures under the case act \45\
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\45\ Information in this section was verified in interviews with
committee staff in January 2001.
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Since the passage of the Case Act, the Senate Foreign
Relations and House International Relations Committees have
developed procedures for consulting, receiving, and using the
executive agreements transmitted to Congress under the Case
Act.\46\ The letter of transmittal to the President of the
Senate and the Speaker of the House is noted in the
Congressional Record. The agreements are referred to the Senate
Foreign Relations Committee and the House International
Relations Committee. Classified executive agreements are sent
directly to the two committees.
---------------------------------------------------------------------------
\46\ After 1994, the House Committee on Foreign Affairs was renamed
the House Committee on International Relations.
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Senate Foreign Relations Committee procedures
After being transmitted to the President of the Senate,
the unclassified agreements are informally referred to the
Parliamentarian for a referral determination and then to the
``morning clerk'' who gives the transmittal an executive
communication number. The package of agreements and materials
is formally referred to the Senate Committee on Foreign
Relations and cited in the Congressional Record the next day.
The transmission is listed in the committee calendar, with the
Executive Communication (EC) number cited. Each agreement is
also listed, identifying the country and subject, along with
the EC number, in a Weekly Summary of Committee Activity that
is circulated to committee members and staff and is a main
communication tool. The committee's chief counsel reviews each
agreement for completeness and also serves an alert function
for members and staff as necessary. The committee information
system office (1) maintains a data bank that facilitates
retrieval of the agreements by country, subject matter, or date
and (2) provides for the microfilming of each unclassified
agreement. At the end of each Congress, the agreements are sent
to the committee's official records in the National Archives.
Classified agreements are sent directly to the committee
and stored with other classified materials. A chronological
listing of all classified agreements received is maintained and
appropriate committee staff are notified of their receipt for
possible consultation with Members. The Weekly Summary of
Committee Activities also includes a notification that
classified agreements have been received; information on the
country and subject matter is not included in this listing. The
chief counsel also reviews each classified agreement for
completeness of transmission and the necessity for briefings
for Members and staff. The classified agreements are not
microfilmed but are kept in the committee's custody for a
longer period of time.
House International Relations Committee procedures
In the House International Relations Committee, all
unclassified executive agreements transmitted to the Speaker
and referred to the committee are listed separately in the
committee calendar by country, with the subject of the
agreements and its executive communication number. Appropriate
staff are notified of the receipt of specific agreements, the
texts of which are maintained in committee files for a single
Congress. Thereafter, the agreements are sent to the
committee's records at the National Archives.
Classified agreements are received directly by the
committee. A brief notice of their receipt is included in the
committee's Survey of Activities which is circulated weekly to
all committee staff and members. A memorandum of notification
that such agreements have been received is sent to appropriate
committee staff. Classified executive agreements are recorded
in a log with other executive branch reports and are
retrievable through the log. Classified agreements can be sent
to the committee's records at the National Archives at the end
of each Congress.
impact and assessment of the case act
The Case Act has been helpful in apprising Congress of
executive agreements as defined by the Act. Staff members of
both the Foreign Relations and the International Relations
Committees indicate their satisfaction that all agreements the
State Department knows of are transmitted, although
notifications to the ``Treaty Office'' in the State Department
of agreements signed may still be unpredictable (see below on
late agreements). Implementation of the Case Act has
contributed to improved relations between Congress and the
executive branch in the area of executive agreements. In
addition, the Case Act has helped the Department of State gain
control of the agreements negotiated by other agencies.
Problems still remain with ensuring that Congress is
informed and consulted on all binding international agreements.
Some problems are due to difficulties in Congress in handling
the executive transmittals. Others are based on the continuing
lack of clear and agreed definitions of executive agreements.
Number of agreements transmitted
The language of the Case Act is general enough to
encompass a great variety and number of executive agreements.
In an effort to comply with the act, the Department of State
initially interpreted it broadly and sent to the Congress a
large number of agreements. The first and immediate impact of
the Act, particularly as more agreements negotiated by other
executive branch agencies were sent to the State Department's
treaty office, was a dramatic increase in the number of
executive agreements reported as concluded on behalf of the
United States. See Table II-2, in Chapter II, especially the
figures for 1976-1978.\47\ This phenomenon brought to both the
committees and the State Department the problems of processing
such a large number of agreements. Consultations among all
involved resulted in a decision that certain agreements made by
the Agency for International Development would not be
transmitted (see discussion above).
---------------------------------------------------------------------------
\47\ For comprehensive data on the conclusion of treaties and
executive agreements, see Chapter II above.
---------------------------------------------------------------------------
An associated problem for the State Department was
ensuring that the agreements were published in a timely manner
as part of its TIAS series. Financial and personnel shortages
have delayed the publishing of the TIAS, and also of UST, by
the Department of State by at least 10 years.
The numbers of agreements transmitted remained high, at
least through 1990. The calendar year 1991 and 1992 figures of
280 and 296, respectively, probably reflect the 1990
redefinition and exclusion of 60 to 80 Public Law 480, Title I
agreements concluded annually (see below, under Insufficient
Transmittal of Agreements to Congress). During the rest of the
1990s, the number of agreements gradually fell until in 1998
and 1999, fewer than 200 agreements were transmitted annually.
See Table X-1.
Table X-1.--Transmittal of Executive Agreements to Congress, 1978-1999
------------------------------------------------------------------------
Total Late Late Agreements, Agency of Origin
---------------------------------------------------
Year Total State Other Agencies
Covered Transmitted ----------------------------------
Number Percent From
Total \1\ Posts Total
------------------------------------------------------------------------
1978 520 132 25.4 45 ? 87 (includes 3
(include classified)
s 1
classifi
ed)
1979 355 46 13 19 7 27 (includes 2
(include classified:
s 1 DOD)
classifi
ed)
1980 320 43 13.4 24 9 19 (includes 1
(include classified:
s 2 DOD)
classifi
ed)
1981 368 99 27 69 19 30 (includes 1
(include classified:
s 2 DOD)
classifi
ed)
1982 372 84 23 44 13 40 (includes 6
(include classified:
s 1 DOD, 5;
classifi Treasury, 1)
ed)
1983 335 71 21.2 39 21 32 (includes 0
(include classified)
s 1
classifi
ed)
1984 369 69 18.7 45 27 24 (includes 5
(include classified:
s 5 DOD, 1; USAF,
classifi 2; Treasury,
ed) 2)
1985 343 88 25.7 39 25 49 (includes 8
(include classified:
s 2 DIA, 3; NRC,
classifi 2; DOD, 1;
ed) USN, 2)
1986 383 65 17 32 25 33 (includes 3
(include classified:
s 1 DIA, 1; DOD,
classifi 1; Treasury,
ed) 1)
1987 396 57 14.4 35 26 22 (includes 2
(include classified) \2
s 2 \
classifi
ed)
1988 412 79 19.2 39 26 40 (includes 7
(include classified) \2
s 2 \
classifi
ed)
1989 344 55 16 38 22 17 (includes 4
(include classified) \2
s 2 \
classifi
ed)
1990 364 51 14 23 18 28 (includes 10
(include classified) \2
s 1 \
classifi
ed)
1991 280 30 11 18 8 12 (includes 1
(include classified) \2
s 0 \
classifi
ed)
1992 296 56 18.9 38 19 18 (includes 8
(include classified) \2
s 0 \
classifi
ed)
1993 243 45 18.5 26 12 19 (includes 10
(include classified) \2
s 0 \
classifi
ed)
1994 313 27 8.6 15 10 12 (includes 0
(include classified)
s 1
classifi
ed)
1995 276 29 10.5 11 8 18 (includes 6
(include classified:
s 0 Treasury, 5;
classifi DIA, 1)
ed)
1996 225 41 18 28 11 13 (includes 5
(include classified:
s 3 DIA, 3; Navy,
classifi 2)
ed)
1997 212 29 13.6 18 7 11 (includes 1
(include classified:
s 0 DIA)
classifi
ed)
1998 199 18 9 12 4 6 (includes 0
(include classified)
s 0
classifi
ed)
1999 166 31 18.6 18 9 13 (includes 4
(include classified) \2
s 3 \
classifi
ed)
----------------------------------------------------------------
1993- 1634 220 13.5 128 61 92
1999
Subtota
ls
----------------------------------------------------------------
Totals- 7091 1245 17.5 675 326 570 (45.8% of
- (54.2% total late)
all of total
years late)
------------------------------------------------------------------------
\1\ Total includes those which are classified and/or late from posts.
\2\ Agencies not identified.
One tool for determining when transmitted agreements are
significantly more important than others is the background
statement required to accompany the texts of each agreement.
While the Case Act did not require such a statement,
correspondence between the Senate Foreign Relations Committee
and the State Department included the requirement for a
background statement for each classified agreement.\48\ The
regulation implementing the Act stipulates that each agreement,
classified or unclassified, be accompanied by a background
statement including ``information explaining the agreement, the
negotiations, the effect of the agreement, and a precise
citation of legal authority.'' \49\ These statements can be
useful in setting a context for committee staff and members.
---------------------------------------------------------------------------
\48\ See above, under Implementation, 1972-1976.
\49\ 22 CFR 181.7, see Appendix, infra.
---------------------------------------------------------------------------
Late transmittal of Case Act agreements
The number of agreements which were not transmitted to
Congress within the 60-day time limit is still a source of
concern although the numbers are notably lower in recent years
than in earlier periods. Referring to Table X-1, between 1978
and 1985, the percent of late transmittals to total agreements
transmitted was often between 20 and 25 percent. Between 1985
and 1992, the percent of late to total transmittals dropped
below 20 percent, falling to 11 percent in 1991 and 18.9
percent in 1992. Between 1993 and 1999, the percent of late to
total transmittals fell to 13.5 percent. Some agreements are
still transmitted months or even a year or two late. In some
cases, it is only when an agreement is amended that the
original comes to light.
Table X-1 also shows that during the period 1978-1992, 547
agreements transmitted after the 60-day date, or 53.4 percent,
originated from the State Department, including 265 agreements
arriving late from overseas posts into the Department. During
the same period, 478 agreements, or 46.7 percent of the total
agreements transmitted late, were transmitted late to the State
Department from other executive branch agencies. In comparison,
for the period 1993-1999, 128 or 58.2 percent of the 220
agreements transmitted late originated within the Department of
State, including 61 from overseas posts, while 92 agreements or
41.8 percent of all late transmittals, originated from other
agencies of the U.S. Government.
Table X-2 shows that over the 14-year period, from 1979
through 1992, a total of 29 agencies, other than the State
Department, at one time or another, submitted at least one
executive agreement to the State Department in such fashion
that the State Department could not transmit the agreement to
the Congress within the required 60 days after entry into
force.\50\ This does not include classified agreements, about
which information on the agency of origin was absent in the
reports covering 1987 through 1993 and for 1999. In this
initial 14-year period, the top four late reporting agencies
were the Federal Aviation Administration (FAA), the Agency for
International Development (AID), the Nuclear Regulatory
Commission (NRC), and the Department of Defense (DOD), followed
by the U.S. Trade Representative (USTR). Practice over the 7
years since 1992 has improved, with 22 agencies (eight of them
new to the list) reported as submitting a total of 92
agreements late. The FAA, DOD, and NRC have been joined by the
U.S. Geological Survey. The USTR and AID have probably fared
better because of arrangements that eliminated many of the
classes of agreements initially required for submittal.
---------------------------------------------------------------------------
\50\ The report for 1978, the initial report, did not include an
agency breakdown on the 87 unclassified agreements received late from
other agencies.
Table X-2.--Agencies Submitting Agreements Late, 1979-1999
------------------------------------------------------------------------
Number of Number of
Name of Agency Agreements Years
------------------------------------------------------------------------
Federal Aviation Administration.................. 23 15
Department of Defense............................ 34 15
Nuclear Regulatory Commission.................... 59 13
U.S. Geological Survey........................... 19 13
U.S. Trade Representative........................ 47 12
Agency for International Development............. 42 12
Department of Energy............................. 21 10
Department of the Navy........................... 22 8
Department of Agriculture \1\.................... 13 7
Department of the Air Force...................... 8 7
U.S. Postal Service \1\.......................... 12 6
National Science Foundation...................... 11 5
National Aeronautics and Space Administration.... 14 5
Peace Corps...................................... 5 5
Department of the Interior \1\................... 4 4
Defense Mapping Agency \1\....................... 5 4
Department of Justice \1\........................ 5 4
U.S. Information Agency.......................... 8 4
Department of the Treasury....................... 13 4
Overseas Private Investment Corporation.......... 7 4
Defense Intelligence Agency...................... 5 4
Food and Drug Administration \1\................. 4 3
Department of Transportation \1\................. 5 3
Department of the Army........................... 3 3
Department of Commerce \1\....................... 2 2
Defense Security Assistance Agency............... 2 2
U.S. Customs Service............................. 3 2
Department of Health and Human Services \1\...... 2 1
General Services Administration \1\.............. 1 1
National Bureau of Standards (NIST) \1\.......... 1 1
National Oceanographic and Atmospheric 1 1
Administration \1\..............................
U.S. Coast Guard \1\............................. 1 1
Department of Labor \1\.......................... 1 1
Bureau of Mines.................................. 1 1
Advanced Research Projects Agency................ 1 1
National Institutes of Health.................... 1 1
International Boundary Waters Commission......... 1 1
------------
Totals: 37 Agencies.......................... 423
------------------------------------------------------------------------
\1\ Indicates agency has not been included in the late transmittal
report after 1992.
The State Department uses the occasion of the late
agreements report to remind executive branch agencies and
Department offices and overseas posts of their responsibilities
to submit to the Treaty Office the texts of any agreements it
concludes within 20 days after signature. Copies of the
regulation and/or Circular 175 are forwarded to each office.
Generally, the ``late agreements'' report does not provide
a very detailed explanation for the lateness of transmittal.
Instead, it lists the agreements by origin: agreements received
in the Department of State from other agencies (the agency is
identified for each agreement); agreements received late from
the action office in the Department of State; agreements
received late from posts abroad; agreements transmitted late
due to internal procedures; and agreements, as appropriate,
received late from the depositary government or organization.
The earlier reports, for 1978-1981, often included a little
more detail in an annotation for those agreements originating
in the State Department. The legislative requirement for the
late agreements report anticipated that the report would
describe ``fully and completely the reasons for the late
transmittal.''
Similarly, the background statements transmitted along
with the agreements do not include any explanation of the
lateness of the agreement. Another mechanism that might prove
useful in obtaining information on the reasons for late
transmittal, irrespective of the agency of origin, might be a
consultation involving the two committees, the State
Department, and an appropriate White House official. In this
way, some of the possible difficulties in meeting the deadlines
for transmittal might be discussed, with some equitable
resolution achieved.
Insufficient transmittal of agreements to Congress
One category of agreement that may contribute to confused
expectations over what will be transmitted is so-called ``gray
area'' agreements. These agreements, concluded in a non-binding
form or determined by the executive branch to be legally non-
binding on the United States, are not referred to Congress
under the Case Act procedures although the executive branch may
voluntarily provide information about them to Congress. Non-
binding international agreements have been used in several
important areas in recent years.\51\ They are viewed as
involving political or moral obligations but not legal
obligations. A prominent example is the 1975 Final Act of the
Conference on Security and Cooperation in Europe (CSCE), better
known as the Helsinki Agreement.
---------------------------------------------------------------------------
\51\ See discussion of nonbinding agreements and functional
equivalents in Chapter III above.
---------------------------------------------------------------------------
Another example is the 1978 Bonn Declaration on
International Terrorism, which did not take the form of an
international agreement but was supported by assurances from
the governments involved that they would take steps to carry it
out. This Declaration was followed during successive years with
additional statements or declarations by the heads of state and
government of the Economic Summit countries. For example, the
1986 Tokyo Economic Summit Conference Statement on
International Terrorism, May 5, 1986, listed six measures the
Summit leaders were prepared to apply in response to any state
supporting terrorism.\52\ Later statements endorsed the Bonn
Declaration and Tokyo Statement and referred generally to the
cooperative efforts under way by the Summit countries.
Illustrative of the coordination and cooperation that developed
under this framework were the actions by many West European
countries to expel diplomats and staff of Iraqi Embassies and
other Iraqi offices and other potential saboteurs and
terrorists during the Persian Gulf war.\53\ The collaboration
initiated in response to the Bonn and Tokyo documents might be
said to have contributed to the success in preventing massive
and significant acts of terrorism in coalition countries.
---------------------------------------------------------------------------
\52\ U.S. Congress. House. Committee on Foreign Affairs.
International Terrorism: A Compilation of Major Laws, Treaties,
Agreements, and Executive Documents. Report Prepared by the
Congressional Research Service, Library of Congress, July 1991.
Washington, U.S. Government Printing Office, 1991. (102d Cong., 1st
Sess., Committee Print) Carries the texts of the Economic Summit
statements and declarations on international terrorism, 1978-1990, pp.
290-301. A July 2000 update of this compilation by the same title for
the House. Committee on International Relations, carries Economic
Summit texts starting in 1986.
\53\ U.S. Department of State. Office of the Coordinator for
Counterterrorism. Patterns of Global Terrorism: 1991. Washington, 1992.
pp. 7-11, 14-15.
---------------------------------------------------------------------------
Another subject area where nonbinding agreements or
arrangements play a significant role is multilateral
nonproliferation regimes.\54\ In these instances, a number of
supplier nations have decided to meet on a more or less regular
basis to draft and approve guidelines under which the
participating nations will limit or restrict their export of
agreed upon materials. No formal and publicly accessible
documentation appears to be available, either on the
establishment of these arrangements or on the actions or
decisions taken at the meetings. The whole activity is
voluntary and any agreements concluded are viewed as political
in nature rather than having legal standing.\55\ The
participating countries, however, often behave as though a real
commitment exists. Since the Case Act requires that all
agreements other than treaties be transmitted and that oral
agreements be put into writing, and establishes a procedure for
the transmittal of classified agreements, and in the light of
increased multilateral activity in these areas in the post-Cold
War era, some believe these kinds of arrangements could
represent a large loophole.
---------------------------------------------------------------------------
\54\ The information on this subject area is taken from U.S.
Congress. House. Committee on Foreign Affairs. Nonproliferation
Regimes: Policies to Control the Spread of Nuclear, Chemical, and
Biological Weapons and Missiles. Committee Print, 103d Cong., 1st
Sess., March 1993. Washington, U.S. Government Printing Office, 1993.
Hereafter cited as Davis, Nonproliferation. See also Department of
State Web site, http://www.state.gov, under Arms Control,
Nonproliferation.
\55\ In the nuclear supplier area, two arrangements exist. The
first, the Nuclear Exporters Committee (known as the Zangger
Committee), was formed in the early 1970s by seven nations to
``reinforce and assist in the implementation of the restrictions on
nuclear trade included in Article III of the NPT'' (the 1970 Treaty on
the Nonproliferation of Nuclear Weapons). The Zangger Committee, in
1974, drew up a ``list of nuclear export items that could be
potentially useful for military applications of nuclear technology. The
nuclear suppliers agreed that the transfer of items on the list would
`trigger' application of IAEA safeguards to assure that the items were
not used for the development of nuclear explosives.'' (Davis,
Nonproliferation, pp. 20-21) The Zangger Committee meets twice a year.
The second arrangement is the Nuclear Suppliers Group (the London
Group), that met for the first time in 1975 to develop a set of nuclear
export guidelines. In 1978, the group ``announced a common policy
regarding nuclear exports,'' including some ``dual-use'' items on its
list. The 1992 meeting of the NSG agreed on new guidelines and sought
to coordinate its list with the Zangger Committee list. (Davis,
Nonproliferation, pp. 20-21, 52) Another arrangement, the Australian
Group, developed in 1984 in response to an Australian initiative, under
which member nations of the Organization for Economic Cooperation and
Development (OECD) ``joined together to establish voluntary export
controls on certain chemicals.'' This is ``an informal organization
open to any nation seeking to stem CW [chemical weapons]
proliferation'' and has 20 members. (Davis, Nonproliferation, pp. 35-
36, 54) A final arrangement, the Missile Technology Control Regime
(MTCR), was set up among the seven Economic Summit nations in April
1987 to ``limit the proliferation of missiles capable of delivering
nuclear weapons.'' Twenty-two nations are now ``partners'' in the MTCR.
(Davis, Nonproliferation, pp. 45-46, 49-51)
---------------------------------------------------------------------------
Another group of agreements that are not transmitted under
the Case Act are those the State Department views as contracts;
they are usually commercial in nature, involving sales or
loans. In 1990, a class of agreements previously transmitted
under the Case Act was removed from the definition of
agreements as a result of a State Department interpretation of
language in the 1990 congressional reform of the Agricultural
Trade Development and Assistance Act of 1954, Title I of Public
Law 480.\56\ The reinterpretation was based on language changes
in the 1990 farm act that authorized the Secretary of
Agriculture rather than the President to ``negotiate and
execute agreements * * * to finance the sale and exportation of
agricultural commodities * * *.'' \57\ As a result of this and
other changes affecting Public Law 480, Title I, the agreements
concluded under this section were interpreted as contracts,
rather than as agreements. This represented an average of 60 to
80 agreements formerly transmitted under the Act annually and
lowered the number of agreements transmitted in 1991 (see Table
X-1 above).\58\ The thrust of the Case Act, however, was to
ensure that the Congress was aware of potentially significant
commitments made by executive agreement. Fiscal year 1991
values for Public Law 480, Title I agreements concluded by the
U.S. Department of Agriculture ranged from $2 million to the
Congo to $165 million to Egypt. Any new trend increasing the
value of agreements made or increasing the number of agreements
signed with any one country might signal a qualitative change
in U.S. policy direction toward a country or bring into
question the potential for misuse of the credits provided. The
two committees may decide to initiate consultations on a formal
State Department interpretation and a change in procedures that
would ensure that the Secretary of Agriculture would submit to
the Department for Case Act transmittal Public Law 480, Title I
agreements under certain specified circumstances.\59\
---------------------------------------------------------------------------
\56\ See section 1512 of Public Law 101-624, Food, Agriculture,
Conservation, and Trade Act of 1990, approved November 28, 1990; often
referred to as ``the 1990 farm act.''
\57\ 7 U.S.C. 1701 (b)
\58\ This information is based on discussions with the Office of
Assistant Legal Adviser for Treaty Affairs and with CRS specialists
covering Public Law 480 aid.
\59\ See discussion of AID agreements above under Implementation,
1972-1976.
---------------------------------------------------------------------------
Pre-Case Act executive agreements
During consideration of the Case Act in 1972 the Senate
report clearly outlined the Senate Foreign Relations Committee
intent that although the Case Act did not include past
executive agreements, they were also to be provided if
requested in the same manner as Case Act agreements.\60\ The
only instance remembered by International Relations and Foreign
Relations committee staff in which a Member of Congress had
asked for pre-Case Act agreements was Senator Jesse Helms'
request for the texts of all exchanges between the United
States and the Soviet Union during the 1962 Cuban Missile
Crisis. While some written exchanges were declassified and
published in 1972, Senator Helms maintained that oral
agreements made at the time and in the years since have changed
the original understandings and that these have not been made
available to the committee.\61\
---------------------------------------------------------------------------
\60\ U.S. Congress. Senate. Committee on Foreign Relations.
Transmittal of Executive Agreements to Congress. Report to accompany S.
596. Washington, U.S. Government Printing Office, 1972, p. 4 (92d
Cong., 2d Sess. S. Rept. 92-591.)
\61\ Helms, Jesse. The Kennedy-Khrushchev Accords--Do They Exist?
Congressional Record, vol. 129, part 20, October 20, 1983: 28791.
---------------------------------------------------------------------------
The State Department has denied the existence of an
agreement between the United States and the Soviet Union about
Cuba, and no such agreement is listed in the State Department's
annual U.S. Treaties in Force. The letters between the two
countries are described as an understanding by each country of
the intentions of the other country toward Cuba, but not an
agreement on conduct of either.\62\ Since 1962, U.S. and Soviet
representatives met several times and agreed that they would
abide by the intentions expressed in the 1962 letters, but the
two countries were not agreed on what behavior constituted
abiding by the letters. In January 1992, the State Department
declassified and released an additional 12 letters from the
October through December 1962 period.\63\ These additional
letters were not transmitted to Senator Helms since they were
not viewed as agreements under international law.
---------------------------------------------------------------------------
\62\ Telephone conversation with Department of State, Office of the
Legal Adviser, Dec. 12, 1983. Updated by phone conversation with the
Office of the Assistant Legal Adviser for Treaty Affairs, March 4,
1993.
\63\ Department Releases Kennedy-Khrushchev Correspondence on Cuban
Missile Crisis. Statement, January 6, 1992. U.S. Department of State
Dispatch, January 13, 1992: 29. The full exchange of correspondence was
published in Problems of Communism, Special Edition, v. 41, Spring 1992
(A bimonthly publication of the United States Information Agency.)
---------------------------------------------------------------------------
B. Consultations on Form of Agreement
A second major problem for Congress has been to ensure
that the most important international agreements have the
status of treaties or are authorized by the entire Congress.
The Senate particularly was concerned that the executive branch
may use executive agreements as a substitute for treaties to
avoid submitting them to the Senate for advice and consent. The
Foreign Relations Committee in 1976 and 1978 considered a
measure, referred to as the Treaty Powers Act, by which the
Senate, through passage of a simple (one-House) resolution
requiring the submission of a particular international
agreement as a treaty, could prevent funding to execute that
agreement until it was submitted as a treaty. In lieu of this
measure, the Senate passed S. Res. 536 on September 8, 1978,
stating the sense of the Senate that,
in determining whether a particular international
agreement should be submitted as a treaty, the
President should have the timely advice of the
Committee on Foreign Relations through agreed
procedures established with the Secretary of State.
This resolution formalized a procedure which was negotiated by
the committee with the State Department earlier that year.
Under these procedures the House International Relations
and Senate Foreign Relations Committees would receive a
periodic list of significant international agreements which
have been cleared for negotiation, a citation of the legal
authority for the agreement, and the expected form the
agreement would take (treaty or executive agreement). Each
committee would then have the opportunity of consulting with
the administration over the proposed form of the agreement.
Under the negotiated agreement, the State Department wrote to
then Chairman of the Senate Foreign Relations Committee John
Sparkman:
If agreeable to you, we propose to send you
periodically a confidential list of significant
international agreements which have been authorized for
negotiation pursuant to the Circular 175 procedure. The
list would briefly discuss the subject matter of the
agreements listed and indicate their anticipated
form.\64\
---------------------------------------------------------------------------
\64\ U.S. Congress. Senate. Committee on Foreign Relations.
International Agreements Consultation Resolution. Report to Accompany
S. Res. 536. Washington, U.S. Government Printing Office, 1978, pp. 2-
3. (S. Rept. 95-1171, 95th Cong., 2d Sess.)
In his reply, Senator Sparkman indicated that he hoped the
consultation would take place concerning agreements negotiated
by the Department of State as well as those negotiated by other
departments and agencies.\65\
---------------------------------------------------------------------------
\65\ Ibid.
---------------------------------------------------------------------------
In current practice, the list of agreements is selective,
chosen by the administration based on its perception of the
interests of Congress. In making the selection, the State
Department takes into account the agreement's importance to
Congress in the view of the agency negotiating the agreement,
the significance of the agreement, and the political importance
of the country. In addition, on occasion the Treaty Office has
consulted informally with International Relations or Foreign
Relations Committee staff on the appropriate form of an
agreement. In these instances, a formal record, such as a
memorandum of conversation, may not exist. In the committees,
the formal negotiations lists are circulated and filed in a
manner similar to the classified agreements submitted under the
Case Act.
The Department of State or another agency may consult with
other Members or congressional committees on the substance of
an agreement either before or after sending the confidential
list letter. Prior consultation on the substance of an
agreement is not used as a basis for excluding the agreement
from the negotiations list sent to the Foreign Relations and
International Relations Committees.
Another requirement under which Congress is to be
consulted over the form that an agreement might take, although
this does not substitute for the formal procedure described
above, is contained in Circular 175 procedures (Section 721.4).
These are the Department's internal procedures for negotiating
and signing treaties and executive agreements, contained in
Chapter 700, volume 11 of the Department of State's Foreign
Affairs Manual, most recently revised in 1985.\66\ Among its
objectives, the 1985 revision included ``timely and appropriate
consultation'' with Congress on treaties and other
international agreements, and compliance with the Case Act.
---------------------------------------------------------------------------
\66\ These guidelines are generally referred to as the Circular 175
procedures of December 13, 1955. The text can be found in Appendix 4.
---------------------------------------------------------------------------
Circular 175 states that a request for authorization to
negotiate and/or sign a treaty or other international agreement
should take the form of a written ``action memorandum.'' This
memorandum may request (1) authority to negotiate, (2)
authority to sign, or (3) authority to negotiate and sign an
international agreement. It should indicate what arrangements
for congressional consultation and public comment have been
planned. The action memorandum should be accompanied by any
texts to be negotiated or signed, and a memorandum of law
discussing thoroughly the bases for the type of agreement
recommended. This justification should include consideration of
the following eight factors:
1. The extent to which the agreement involves
commitments or risks affecting the nation as a whole;
2. Whether the agreement is intended to affect State
laws;
3. Whether the agreement can be given effect without
the enactment of subsequent legislation by the
Congress;
4. Past U.S. practice as to similar agreements;
5. The preference of Congress as to a particular type
of agreement;
6. The degree of formality desired for an agreement;
7. The proposed duration of the agreement, the need
for prompt conclusion of an agreement, and the
desirability of concluding a routine or short-term
agreement; and
8. The general international practice as to similar
agreements.
When there is a question whether an international
agreement should be concluded as a treaty or executive
agreement, Circular 175 calls for consultation with
congressional leaders and committees as may be appropriate. In
addition, Section 723.1e states that the office or official
responsible for the negotiation should, with the assistance of
the Assistant Secretary of State for Congressional Relations,
advise the appropriate congressional committees and leaders of
the intention to negotiate significant new international
agreements, consult them concerning the agreements, and keep
them informed of negotiating developments affecting Congress,
especially the need for implementing legislation. Where any
especially important treaty or international agreement is
contemplated, the Office of the Assistant Secretary for
Congressional Relations is to be informed as early as possible
by the office responsible for the subject.
Circular 175, however, does not refer in any way to the
negotiated procedure under which the two foreign affairs
committees are to be consulted over the appropriate form for
proposed agreements.
C. Congressional Review or Approval of Agreements
Congress has sometimes established an oversight role by
requiring in legislation that certain categories of agreements
be transmitted to it. Table X-3 describes the statutory
provisions of this nature. This list is not comprehensive, but
represents the main provisions in the U.S. Code requiring
agreements to be sent to the Congress.\67\
---------------------------------------------------------------------------
\67\ A search of the computerized U.S. Code to identify laws with
some combination of ``international agreement,'' ``submit,''
``transmit'' and ``report'' within 25 words of ``Congress'' resulted in
2,085 citations. Raymond J. Celada, Senior Specialist in American
Public Law, CRS, reviewed the texts of those citations, and identified
20 that were relevant. This author further reviewed the texts of 19 of
those 20 (one was the Case Act, discussed in the first part of this
chapter) in the U.S. Code Annotated (USCA) and its 1992 pocket parts,
narrowing the provisions to ten. A review of the most recent USCA and
its 2000 pocket parts for the ten provisions in Table X-3 resulted in
few substantive changes.
Table X-3.--Statutory Requirements for Transmittal of Agreements to Congress
--------------------------------------------------------------------------------------------------------------------------------------------------------
Transmittal Before Approval Required Specified Are Congressional
Title of Act and Public Law Subject of or After Entry for Entry into Disapproval Recipients of Procedures Set
Citation [U.S.C.] Agreement into Force? Force? How? Provisions? How? Agreements Forth?
--------------------------------------------------------------------------------------------------------------------------------------------------------
Atomic Energy Act of 1954, as Nuclear Before; 30-day Yes; Joint Yes; Joint SFRC, HFAC \1\.... Yes, general
amended (P.L. 83-703); Sections Cooperation waiting period. Resolution. Resolution. provisions
123 & 130 (g),(h) & (i) [42 Agreements.
U.S.C. 2153 & 2159 (g), (h), &
(i)].
Atomic Energy Act of 1954, as Nuclear Before; 60-day Yes; Joint Yes; Joint SFRC, HFAC, HASC, Yes, general
amended (P.L. 83-703); Sections Cooperation waiting period. Resolution. Resolution. SASC. provisions
91c, 144 b or c; and Sections Agreements
123 & 130 (g), (h), & (i) [42 relating to
U.S.C. 2153 & 2159 (g), (h) & defense materials
(i)]. or military uses.
Fishery Conservation and International Before; 60-day No; will enter Yes; Joint House & Senate; Yes, detailed
Management Act of 1976, as Fisheries waiting period. into force if No Resolution. HMM&F, SFRC, S provisions
amended (P.L. 94-265) Section Agreements action within 60 Commerce.
203 [16 U.S.C. 1823]. (GIFAs). days.\2\.
Taiwan Relations Act (P.L. 96- Agreements made by After............. No................ No................ Congress.......... No
8), Section 12 [22 U.S.C. 3311]. the American
Institute in
Taiwan.
Social Security Amendments of Social security Before; 60-day No; will enter Yes; resolution of Congress.......... No
1977 (P.L. 95-216), Section 317 agreements waiting period. into force if No either house.
[42 U.S.C. 433]. between U.S. and action within 60
foreign social days.
security systems.
International Development and International Before............ No................ No................ SFRC, HFAC, H & S No
Food Assistance Act of 1978, as agreements Appropriations.
amended (P.L. 95-424), Section concerning debt
603 (a)(2) [22 U.S.C. 2395a relief 30 days.
(2)].
Enterprise for the Americas Any agreement with 30 days before.... No................ No................ HFAC, SFRC, H & S No
Initiative Act of 1992 (P.L. any foreign Agriculture.
102-532), Section 2 [7 U.S.C. government
1738q]. resulting in any
debt relief under
Title VI of the
Agricultural
Trade Development
& Assistance Act
of 1954, as
amended.
Trade Act of 1974, as amended Agreements on Before; Section Yes; Joint No................ Congress.......... Yes
(P.L. 93-618), Section 405 [19 trade relations 151 process. Resolution.
U.S.C. 2435]. with nonmarket-
economy countries.
OTCA of 1988, as amended \3\ Agreements on Before; Section Yes; Joint No................ House; Senate..... Yes; detailed
(P.L. 100-418), Sections 1102 elimination of 151 process. Resolution. process
(b) & 1103 (a) and Trade Act of non-tariff
1974, as amended (P.L. 93-618), barriers.
Section 151 [19 U.S.C. 2191].
OTCA of 1988, as amended (P.L. Bilateral Before; Section Yes; Joint No................ House; Senate..... Yes; detailed
100-418), Sections 1102 (c) & agreements 151 process. Resolution. process
1103 (a) [19 U.S.C. 2903] Trade regarding tariff
Act of 1974, as amended (P.L. and nontariff
93-618), Section 151 [19 U.S.C. barriers.
2191].
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Guide to abbreviations of committee names: SFRC--Senate Committee on Foreign Relations; HFAC--House Committee on Foreign Affairs, now House
Committee on International Relations; HASC--House Armed Services Committee; SASC--Senate Armed Services Committee; HMM&F--House Merchant Marine and
Fisheries Committee, now House Committee on Resources; S Commerce--Senate Committee on Commerce, Science, and Transportation; S Agriculture--Senate
Committee on Agriculture, Nutrition, and Forestry.
\2\ Many GIFAs have been approved by Congress and entered into force before the end of the 60-day period.
\3\ OTCA is the Omnibus Trade and Competitiveness Act of 1988, Public Law 100-418.
Almost all of the provisions require transmittal of the
agreement to Congress prior to its entry into force. In only
one of the ten cases, the Taiwan Relations Act, is the
requirement similar to the Case Act requirement for transmittal
after entry into force, and it differs by not having a deadline
for transmittal. In that instance, the goal of the provision
appears to be informational. Most of the legislation provides
for congressional approval or disapproval of the agreement. An
exception is the International Development and Food Assistance
Act of 1978, as amended, which requires that agreements
concerning debt relief be transmitted 30 days before they take
effect, but does not provide for congressional action regarding
the agreements. This would theoretically permit a congressional
effort to halt the agreement, but there are no explicit
procedures for this.
The Social Security Amendments of 1977 provision allowing
disapproval of social security agreements by a simple
resolution of either house, a form of ``legislative veto,''
would seem a likely candidate for revision in light of the
constitutional problems raised by the 1983 Supreme Court
Decision of INS v. Chadha.\68\ In the remaining seven cases,
such a legislative veto provision has been replaced by a
requirement for a joint resolution of approval or disapproval.
Provisions permitting Congress to reject or approve a proposed
agreement by bill or joint resolution would not be affected by
the Chadha decision. A joint resolution of approval would in
all likelihood be signed by the President, but a joint
resolution of disapproval would be subject to a veto by the
President and thus require a two-thirds majority to override
the President.
---------------------------------------------------------------------------
\68\ 462 U.S. 919 (1983).
---------------------------------------------------------------------------
The Fishery Conservation and Management Act of 1977, as
amended, provides that the governing international fisheries
agreements would enter into force at the end of a 60-day
waiting period, unless Congress adopted a joint resolution of
disapproval. The practice has been, however, that Congress has
often, by legislation, approved the agreements, bringing them
into force before the end of the 60-day period. The three trade
agreement provisions all require affirmative approval by
Congress to bring the agreement into force.
D. Required Reports to Congress
A requirement that the executive branch report to Congress
on some matter is an often used technique for maintaining
oversight in the foreign affairs area. Some estimates of the
number of reporting requirements in this field reach as high as
820.\69\
---------------------------------------------------------------------------
\69\ This figure is based on a count of foreign affairs related
reporting requirements enacted by the Congress and in force as of the
end of the 102d Congress in 1992.
---------------------------------------------------------------------------
The reports may be required at regular intervals or upon
the occurrence of a certain event. A much smaller number relate
directly to oversight of international agreements. Table X-4
provides a representative listing of such reports and their
statutory basis. The reporting requirement process gives the
Members and committees of Congress and their staff an
informational tool for exploring further both past and future
negotiations on a wide variety of issues.
Table X-4.--Required Reports Related to International Agreements
----------------------------------------------------------------------------------------------------------------
Requirement/Citation to
Agreement Law From Whom Frequency
----------------------------------------------------------------------------------------------------------------
Bretton Woods Agreements............ U.S. participation in Treasury............... Annual
international
financial institutions/
P.L. 95-118, sec. 1701
& P.L. 101-240, sec.
541.
U.N. Charter......................... Report on U.S. President.............. Annual
Participation in the
United Nations/P.L. 79-
264, sec. 4.
Various arms control agreements...... Adherence and President.............. Annual, by January 31
compliance with arms
control agreements/
P.L. 87-297, sec. 52,
as amended.
Various trade agreements............. Operation of the Trade U.S. International Annual
Agreements Program/ Trade Commission.
P.L. 93-618, sec. 163
(b).
International Coffee Agreement, 1983. Report on operation of President.............. Annual
agreement and the
International Coffee
Organization/P.L. 96-
599, sec. 5, amended.
Nuclear Non-Proliferation Treaty..... Review of government- President.............. Annual, January
wide activities to
prevent proliferation/
P.L. 95-242, sec. 601,
amended.
U.N. Charter......................... Special reports on President.............. As occurs
Security Council
decisions to take
enforcement measures/
P.L. 79-264, sec. 4.
----------------------------------------------------------------------------------------------------------------
In addition, the Senate, during its consideration of
certain treaties, has added reporting requirements as a
condition to its resolution approving U.S. ratification. For
example, the Senate's ``advice and consent'' resolution of
November 25, 1991, to the 1990 Treaty on Conventional Armed
Forces in Europe (CFE) included a one-time requirement that the
President certify to the Senate within 30 days of the
resolution ``whether or not the Soviet Union is in violation or
probable violation of the terms of the CFE Treaty and protocols
thereto.'' On October 1, 1992, the Senate, in its resolution
approving ratification of the 1991 Treaty on the Reduction and
Limitation of Strategic Offensive Arms (START Treaty), required
from the President within 180 days of the Senate resolution a
one-time report on compliance with a number of arms control or
reduction treaties including the SALT I Interim Agreement, SALT
II, ABM, INF and START Treaties.
E. Other Tools of Congressional Oversight
Among other tools Congress has used for oversight of
international agreements are implementation legislation,
recommendations in legislation, consultation requirements, and
oversight hearings. These are summarized briefly below.
Further, section 136 of the 1970 Legislative Reorganization Act
(Public Law 91-510), specifically required the committees of
Congress to exercise oversight of those programs within their
jurisdiction. An alternative approach that Congress has used in
one instance is to establish a committee or commission, such as
the [Helsinki] Commission on Security and Cooperation in
Europe. This Commission, set up by Public Law 94-304, approved
June 3, 1976, as amended, monitors the actions of the countries
that signed the Final Act of the Conference on Security and
Cooperation in Europe (CSCE), a nonbinding political agreement,
especially those acts relating to human rights and cooperation
in humanitarian fields. The Commission has 21 members, 18 of
whom are members of the Congress. Three are from the executive
branch. The President must report annually to Congress on
compliance with or violation of provisions of the Final Act.
implementation legislation \70\
---------------------------------------------------------------------------
\70\ See also section on Obligation to Implement in Chapter VIII
above.
---------------------------------------------------------------------------
Implementation legislation can be an effective method for
overseeing a treaty or other international agreement. Many
treaties require legislation to ensure implementation on a
national basis of the international obligations established by
the treaty. Congress might include in that implementation
legislation certain provisions to ensure a congressional role
in monitoring implementation of the treaty. Implementation
legislation of this sort is often one-time legislation related
to a treaty, but like other legislation it may be amended. Some
citations to treaty implementation legislation are shown in
Table X-5, for illustrative purposes.
As Table X-5 shows, the subjects for implementation
legislation are as varied as the subjects for the negotiation
of treaties.
Another type of implementation legislation occurs when the
executive branch requests the authorization and appropriation
of funds to carry out the terms of a treaty or international
agreement other than treaty. When an international agreement
requires funding, Congress is in a strong position to influence
the extent to which that agreement will be implemented.
Sometimes the provision of funds is a single legislative
occurrence. Other agreements require an annual authorization
and appropriation of funds, such as is authorized in the United
Nations Participation Act, the implementing legislation for the
U.N. Charter. Section 8 of this law authorizes annual
appropriations for U.S. contributions to the United Nations.
The annual authorization and appropriations for the Department
of State are accompanied by hearings which give committees an
opportunity to question the administration on U.S.
participation in the United Nations.
recommendations in legislation
Another tool for Congress to affect international
agreements is legislation or resolutions asking the executive
branch to initiate negotiations on an issue toward a specific
goal or to ensure that an agreement under negotiation include a
specific item of congressional interest. For example, in
Section 37 of the Arms Control and Disarmament Act, as
amended,\71\ Congress registered its sense ``that adequate
verification of compliance should be an indispensable part of
any international arms control agreement.''
---------------------------------------------------------------------------
\71\ Public Law 87-297, approved Sept. 26, 1961, as amended by
Public Law 95-108, August 17, 1977.
Table X-5.--Legislation Implementing Treaties
------------------------------------------------------------------------
Citation to Implementation
Treaty Name Legislation
------------------------------------------------------------------------
1945 U.N. Charter......................... P.L. 79-264, December 20,
1945
1948 U.N. Convention on the Prevention and P.L. 100-606, November 5,
Punishment of the Crime of Genocide. 1988
1963 Convention on Offenses and Certain P.L. 91-449, October 14,
Other Acts Committed on Board Aircraft, 1970
Tokyo.
1969 International Convention Relating to P.L. 93-248, February 5,
Intervention on the High Seas in Cases of 1974
Oil Pollution Casualties, with annex.
1970 Convention for the Suppression of P.L. 93-366, August 5, 1974
Unlawful Seizure of Aircraft, Hague.
1971 Convention to Prevent and Punish Acts P.L. 94-467, October 8, 1976
of Terrorism Taking the Form of Crimes
Against Internationally Protected Persons
and Related Extortion That are of
International Significance, OAS.
1971 Convention for the Suppression of P.L. 98-473, October 12,
Unlawful Acts Against the Safety of Civil 1984
Aviation, Montreal.
1972 Convention on the Prohibition of the P.L. 101-298, May 12, 1990
Development, Production and Stockpiling
of Bacteriological (Biological) and Toxin
Weapons and on Their Destruction.
1973 Convention on the Prevention and P.L. 94-456, October 8, 1976
Punishment of Crimes Against
Internationally Protected Persons,
including Diplomatic Agents, New York
(UN).
1977 Panama Canal Treaty.................. P.L. 96-70, September 27,
1979
1979 Convention on the Physical Protection P.L. 97-351, October 18,
of Nuclear Material. 1982
1979 Convention Against the Taking of P.L. 98-473, October 12,
Hostages. 1984
1990 Treaty on Conventional Armed Forces P.L. 102-228, December 12,
in Europe (CFE Treaty). 1991
1993 Hague Convention on Protection of P.L. 106-279, October 6,
Children and Cooperation in Respect of 2000
Intercountry Adoption.
------------------------------------------------------------------------
In a second example, Congress, in 1990, adopted two laws
on Antarctica, expressing its concerns on the preservation of
the Antarctic environment. In the Antarctic Protection Act of
1990, Congress stipulated that the Secretary of State negotiate
an international agreement that would, among other things,
``prohibit or ban indefinitely Antarctic mineral resource
activities by all parties to the Antarctic Treaty.'' Congress
further determined that ``any treaty or other international
agreement submitted by the President to the Senate for its
advice and consent to ratification relating to mineral
resources or activities in Antarctica should be consistent with
the purpose and provisions of this Act.'' \72\ In a second law,
Protection of Antarctica as a Global Ecological Commons,
Congress stated that ``pending negotiation and entry into force
of * * * new agreements'' regarding environmental protection,
the 1988 ``Convention on the Regulation of Antarctic Mineral
Resource Activities should not be presented to the Senate for
advice and consent to ratification.'' \73\ As a result of these
provisions, the executive branch went back into negotiations,
working out a Protocol on Environmental Protection to the
Antarctic Treaty that was adopted in October 1991, submitted to
the Senate in February 1992, and approved by the Senate in
October 1992 for U.S. ratification. The Protocol, with its
annexes, establishes a comprehensive, legally binding
environmental protection regime for Antarctica and prohibits
all Antarctic mineral resource activities, except for
scientific research. This prohibition may not be reviewed until
at least 50 years following entry into force of the Protocol.
---------------------------------------------------------------------------
\72\ Public Law 101-594, approved November 16, 1990.
\73\ Public Law 101-620, approved November 16, 1990.
---------------------------------------------------------------------------
The House and the Senate, acting separately in simple
resolutions, or jointly, in concurrent or joint resolutions,
have over the years expressed their views on a variety of
circumstances, including those calling on the President or
other officials of the executive branch to negotiate an
agreement on a particular issue or to take a particular
position on a set of negotiations or vis-a-vis another
government.\74\
---------------------------------------------------------------------------
\74\ A list of these resolutions may be found in the Legislative
Review Activities Report of the House Committee on International
Relations and the Legislative Activities Report of the Senate Committee
on Foreign Relations, each of which covers an entire Congress. Other
expressions of position may be found in such omnibus pieces of
legislation as the Foreign Relations Authorization Act and the Foreign
Assistance Act of 1961, as published in the multi-volume compilation,
Legislation on Foreign Relations, published annually as a joint
committee print of the House International Relations and Senate Foreign
Relations Committees.
---------------------------------------------------------------------------
consultation requirements
Another method of keeping track of administration actions
on international agreements is to provide in legislation for
consultation with Congress prior to or during negotiations that
would result in a treaty or executive agreement. The Omnibus
Trade and Competitiveness Act includes mechanisms for
consultation on negotiations including the selection of five
members of the House Ways and Means Committee and Senate
Finance Committee as congressional advisers for trade policy
and negotiations who would be accredited by the U.S. Trade
Representative as official advisers to U.S. delegations to
international conferences, meetings, and negotiating sessions
when trade agreements are involved.\75\ This section also
provides for regular consultations with the appropriate
committees on U.S. trade policy and direction.
---------------------------------------------------------------------------
\75\ Section 1632, Omnibus Trade and Competitiveness Act of 1988,
Public Law 100-418, approved August 23, 1988.
---------------------------------------------------------------------------
Congress has also sought consultation on the termination
of a treaty. The International Security Assistance Act of 1978
contained the following clause regarding the Mutual Defense
Treaty with the Republic of China: ``It is the sense of the
Congress that there should be prior consultation between
Congress and the executive branch on any proposed changes
affecting the continuation in force of the Mutual Defense
Treaty of 1954.'' \76\ It might be noted that the treaty was
terminated by the President with almost no real consultation
with Congress.\77\ In another example, U.S. withdrawal of its
declaration accepting the compulsory jurisdiction of the World
Court, a concurrent resolution deploring the U.S. notification
was introduced and hearings held, but Congress did not approve
the resolution.\78\
---------------------------------------------------------------------------
\76\ Section 26, Public Law 95-384, approved September 26, 1978. On
December 23, 1978, the State Department delivered notice, effective
January 1, 1979, that the United States was terminating the treaty.
Under Article X, the treaty remained in force until January 1, 1980.
\77\ U. S. Congress. House. Committee on Foreign Affairs.
Executive-Legislative Consultation on China Policy, 1978-1979. By
Robert G. Sutter. Committee Print, June 1980.
\78\ For discussion see Chapter VIII.
---------------------------------------------------------------------------
oversight hearings
In keeping with the overall obligation of committees to
maintain oversight of executive branch programs within their
jurisdiction, international agreements in their various stages
have been monitored in Congress. This has included hearings on
the need for and purpose of negotiations, the status and
direction of negotiations, the agreements resulting from
negotiations and their impact and implementation requirements,
and after they come into force, the nature and effect of
compliance with the provisions of the agreements.
For example, at different times between 1983 and 1992,
various committees in Congress have held hearings on the 1982
U.N. Convention on the Law of the Sea, which was negotiated,
with constant congressional review, over a previous 8- to 11-
year period. The focus of occasional hearings during the 1980s
was the extent to which U.S. interests were served by remaining
outside the treaty and legislative and other steps that might
be required to best protect U.S. law of the sea interests. On
other issues, the Senate Foreign Relations Committee during
1991 and 1992, held hearings on possible nuclear proliferation
issues in North Korea, conducted regular hearings on
developments regarding chemical weapons proliferation and
efforts to negotiate a treaty in this area, and held a series
of hearings in 1991 on ``issues related to a bilateral Free
Trade Agreement with Mexico,'' to name only a few examples.
XI. TRENDS IN MAJOR CATEGORIES OF TREATIES \1\
---------------------------------------------------------------------------
\1\ Prepared by Richard F. Grimmett, Specialist in National Defense
and the following CRS analysts and attorneys who made specialized
contributions to various sections: Amy Wolff, Jonathan Medalia, Jeanne
J. Grimmett, Robert Burdette, Susan Fletcher, Charles Doyle, Larry Eig,
Vita Bite and Lois McHugh.
---------------------------------------------------------------------------
----------
The subject matter of treaties is varied and reflects
changing circumstances that affect U.S. foreign policy
interests. In the first decade after World War II, from 1945
through 1955, treaties established a network of political and
security alliances that provided a framework that endured
throughout the Cold War. Later, the focus of political-security
treaties shifted to arms control. The end of the Cold War
brought new or revised agreements with a number of Eastern
European nations and the independent states formed from the
former Soviet Union and the former Yugoslavia. A security
treaty framework to reflect the new international environment
in the post-Cold War era is still emerging.
New policy concerns have led to a growing importance of
treaties outside the traditional political-security field.
Economic treaties, including consular, investment, and tax
agreements, have become the main component of such treaties
submitted to the Senate. To deal with international narcotics
trafficking and other crimes, the United States has embarked on
a new series of treaties for legal cooperation, such as
extradition and mutual legal assistance treaties (MLATs).
Treaties for conservation of certain species of wildlife and
regulation of fisheries have been supplemented with broad
treaties for environmental cooperation.
The number of treaties submitted to Congress reflects the
legislative-executive balance of power and views regarding
which international agreements must be submitted to the Senate.
After the immediate post-World War II period, few significant
political and military commitments, except in arms control,
were made by treaty. For the rest of the Cold War, the Senate
acquiesced when Presidents expanded the post-World War II
treaty framework with executive agreements.\2\ In the case of
the Treaty on the Final Settlement with Respect to Germany,
discussed below, the Senate insisted it be submitted as a
treaty.
---------------------------------------------------------------------------
\2\ For example, after getting the Spanish Bases Agreement
submitted to the Senate as a treaty in 1975, the Senate agreed that a
successor base agreement could be concluded as an executive agreement
when Spain became a member of the North Atlantic Treaty Organization
(NATO), in keeping with agreements with other NATO countries. Agreement
Extending for Eight Months Provisions of the Treaty of Friendship and
Cooperation with Spain (Treaty Doc. 97-20, September 4, 1981, approved
by Senate November 18, 1981), Exec. Rept. 97-24, November 9, 1981.
---------------------------------------------------------------------------
A principal concern of Presidents about treaties has been
that a minority in the Senate could use the advice and consent
power to block executive branch plans or even the will of the
majority in the Senate. In practice the Senate has rejected few
treaties either directly or indirectly and, except for the
Versailles Treaty providing for membership in the League of
Nations, the rejection of treaties by the Senate has seldom
affected foreign policy in a major way. The Senate has
continued in its long-established pattern of approving most
treaties without crippling conditions. At the same time, the
Senate has added conditions on the substance of treaties when
it deemed conditions essential, as in certain arms control,
tax, and human rights treaties.
A statutory agreement, that is a congressionally approved
or authorized executive agreement, has historically provided an
alternative. Such an alternative allows congressional
involvement in international agreements and provides for
majority control. But it does not call for the extraordinary
majority and greater recognition of the interests of 50
individual states provided by the two-thirds Senate majority
specified in the Constitution. In some areas, especially trade
agreements, Congress has chosen this option. In other areas,
such as arms control, the Senate has insisted that
international agreements be concluded as treaties.
The Senate has also demonstrated in other ways an intention
to maintain the significance of the treaty power. For example,
it has added provisions or expressed concerns that treaties be
interpreted in accordance with the common understanding shared
by the Senate at the time it gave its advice and consent, and
that they not be reinterpreted without the advice and consent
of the Senate, as indicated in the section on arms control
below. Similarly, the Senate has protested when the executive
branch signed multilateral treaties with a provision
prohibiting nations from ratifying with reservations, as
indicated in the section on environmental treaties below.
This chapter discusses trends in five broad categories of
treaties: political and security, economic, environmental,
legal cooperation, and human rights. The focus is on the period
from 1983 through late 2000, but the study sometimes discusses
earlier periods for comparative purposes. Similarly, the
chapter sometimes discusses international agreements other than
treaties for illustrative purposes.
A. Political and Security Agreements
At the end of World War II, treaties played an important
part in shaping post-war U.S. foreign policy, especially in the
political and security field. Peace treaties were concluded
with Italy, Romania, Bulgaria, Hungary, and Japan. The Charters
of the United Nations and the Organization of American States
provided a framework for international cooperation.
After that time, a decline in the significance of treaties
submitted to the Senate in the political-security field became
apparent. In 1972, Senator J. William Fulbright, chairman of
the Foreign Relations Committee, wrote there had been a
``steady attrition of the status and significance of treaties
submitted to the Senate.'' \3\ He compared the importance of
numerous agreements not submitted to the Senate, such as a 1968
executive agreement to return the Bonin Islands to Japan, with
the less significant nature of some agreements that were
submitted, such as a protocol with Mexico modifying an
agreement on radio broadcasting.
---------------------------------------------------------------------------
\3\ Fulbright, J. William. The Crippled Giant: American Foreign
Policy and Its Domestic Consequences. New York, Random House, 1972. p.
217.
---------------------------------------------------------------------------
In more recent years, with the exception of the Panama
Canal Treaties of 1977 and arms control agreements, few
important political or defense agreements have been concluded
as treaties. The United States has entered several major
agreements in the political-security field, but for various
reasons Presidents have not submitted them to the Senate as
treaties. Several have been concluded as executive agreements,
including the 1973 Paris agreement on the end of the Vietnam
War, the Afghanistan settlement agreement of April 1988, and
the political settlement of the Cambodia conflict of October
1991.\4\ Others have been considered political statements or
politically but not legally binding agreements, such as the
U.S.-Russian Charter \5\ or agreements that have been concluded
in the Conference on Security and Cooperation in Europe
(CSCE).\6\
---------------------------------------------------------------------------
\4\ Act of the International Conference on Vietnam, March 2, 1973.
24 UST 485; TIAS 7568; 935 UNTS 405; Afghanistan Settlement Agreement
of April 14, 1988, State Department Document Number 88-163; Agreement
on a Comprehensive Political Settlement of the Cambodia Conflict,
October 23, 1991, State Department Document Number 91-240; and
Agreement Concerning the Sovereignty, Independence, Territorial
Integrity and Inviolability, Neutrality and National Unity of Cambodia,
October 31, 1991, State Department Document Number 91-243.
\5\ A Charter for American-Russian Partnership and Friendship, June
17, 1992. Department of State Dispatch, June 22, 1992. vol. 3, p. 490.
\6\ Vienna Document 1992 of the Negotiations on Confidence and
Security-Building Measures, March 4, 1992. Department of State Dispatch
Supplement, July 1992.
---------------------------------------------------------------------------
national security and defense commitments
In 1969, the Senate adopted the National Commitments
Resolution, which defined a national commitment as ``the use of
Armed Forces of the United States on foreign territory, or a
promise to assist a foreign country, government, or people by
the use of Armed Forces or financial resources of the United
States, either immediately or upon the happening of certain
events.'' The resolution expressed the sense ``that a national
commitment by the United States results only from affirmative
action taken by the executive and legislative branches of the
United States Government by means of a treaty, statute, or
concurrent resolution of both Houses of Congress specifically
providing for such commitment.'' \7\ Since the initial post-
World War II security treaties, however, security commitments
have been made almost entirely by means other than treaties.
---------------------------------------------------------------------------
\7\ S. Res. 85, 91st Cong., 1st Sess., adopted June 25, 1969.
---------------------------------------------------------------------------
The framework for the current U.S. network of mutual
security treaties was built between 1947 and 1954, with the
North Atlantic Treaty, the Inter-American Treaty of Reciprocal
Assistance, the Southeast Asian Treaty, the ANZUS Pact with
Australia and New Zealand, and bilateral security treaties with
the Philippines, South Korea, Japan, and the Republic of China
(Taiwan). Since that time, no new mutual security commitments
have been made by treaty, with the possible exception of an
additional commitment, embodied in the Panama Canal Treaties of
1979, to protect the Panama Canal until December 31, 1999, and
to maintain permanently its regime of neutrality. The only
defense agreement submitted as a treaty in the 1980s, the
Treaty Between the United States and Iceland to Facilitate
their Defense Relationship, had a primarily economic purpose:
superseding U.S. cargo preference laws and equitably sharing
trade.\8\
---------------------------------------------------------------------------
\8\ Exec. Rept. 99-7, October 8, 1986. Treaty Doc. 99-31. Signed
September 24, 1984. Approved by the Senate October 8, 1986.
---------------------------------------------------------------------------
In 1992, at the request of Congress, President Bush
submitted to Congress a list of current U.S. security
commitments, defined by the administration as ``an obligation,
binding under international law, of the United States to act in
the common defense in the event of an armed attack on that
country.'' \9\ The President listed only one U.S. security
commitment in addition to those concluded from 1947 to 1954
mentioned above. This was to the Freely Associated States,
embodied in the Compacts of Free Association with the Republic
of the Marshall Islands and the Federated States of Micronesia.
Approved by Congress, the compacts give the United States
``full authority and responsibility for security and defense
matters, in or relating to'' those states, including the
obligation to defend them and their peoples from attacks or
threats thereof, ``as the United States and its citizens are
defended.'' \10\
---------------------------------------------------------------------------
\9\ A Report on United States Security Arrangements and Commitments
with Other Nations, Submitted to the Congress in accordance with
Section 1457 of Public Law 101-510, the National Defense Authorization
Act of 1991, August 17, 1992.
\10\ Section 311, Public Law 99-239, signed January 14, 1986.
---------------------------------------------------------------------------
The President also listed a number of U.S. ``security
arrangements,'' defined as a pledge by the United States to
some action in the event of a threat to that country's
security. According to the President, ``security arrangements
typically oblige the United States to consult with a country in
the event of a threat to its security. They may appear in
legally binding agreements, such as treaties or executive
agreements, or in political documents, such as policy
declarations by the President, Secretary of State or Secretary
of Defense.'' \11\
---------------------------------------------------------------------------
\11\ U.S. President. A Report on United States Security
Arrangements.
---------------------------------------------------------------------------
Most of the legally binding security arrangements listed in
the President's report were prior to the 1980s, and would be
considered sole executive agreements, namely agreements with
Israel, Egypt, Pakistan, and Liberia.\12\ One could be
considered a statutory agreement: in 1981, executive agreements
committed the United States to the establishment of the
Multinational Force and Observers (MFO) in the Sinai, subject
to congressional authorization and appropriations, and Congress
subsequently authorized the MFO in legislation.\13\
---------------------------------------------------------------------------
\12\ Memoranda of Agreement (concerning Assurances, Consultations,
and United States Policy on Matters Related to Middle East Peace,
concluded on September 1, 1975, with Egypt (32 UST 2150; TIAS 9828) and
Israel (32 UST 2150; TIAS 9828) and an updated memorandum dated March
26, 1979, following the Israeli-Egyptian Peace Treaty, 32 UST 214 1;
TIAS 9825.
Agreement of Cooperation with Pakistan, March 5, 1969, 10 UST 317;
TIAS 4190; UNTS 285.
Agreement of Cooperation with Liberia, July 8, 1959, 10 UST 1598;
TIAS 4303; 357 UNTS 93.
\13\ Identical letters of August 3, 1981, from Secretary of State
Haig to Egyptian Deputy Prime Minister/Foreign Minister and Israeli
Foreign Minister, August 3, 1981, TIAS 10556 and 10557; Congress
authorized participation in the Multinational Force and Observers
Participation Resolution, Public Law 97-132, signed December 29, 1981.
---------------------------------------------------------------------------
The President listed as security arrangements in political
documents executive branch declarations of support for Israel,
the Carter Doctrine on the Persian Gulf of January 23, 1980,
and the Declaration on the Air Defense of India of July 22,
1963. He also included two policies embodied in the Eisenhower
Doctrine on International Communism and the Middle East, and
the Taiwan Relations Act of 1979.
Finally, the President reported that a large number of
defense agreements, including those on training and pre-
positioning of equipment, establish conditions under which the
United States may undertake activities with or in other
countries. He said these could not be considered security
commitments or arrangements because they did not obligate the
United States to act in defense of another country.
A survey of lists submitted under the Case Act indicates
that the United States has concluded large numbers of executive
agreements concerning defense. Many of these involve routine
military cooperation and assistance. Often these have been with
partners in a security treaty such as Japan, Korea, or the NATO
countries, and could be considered executive agreements
pursuant to treaty. Some have been with non-treaty states, such
as Saudi Arabia.\14\
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\14\ Agreement extending agreements of May 24 and June 5, 1965,
relating to the construction or military facilities in Saudi Arabia,
February 14, 1989, State Department Document Number 89-89.
---------------------------------------------------------------------------
In addition, some defense agreements are not made public.
Since these are transmitted to Congress on a classified basis,
they have not been analyzed for this report. An example would
be a bilateral defense agreement concluded with Kuwait after
Operation Desert Storm. According to press reports, on
September 19, 1991, the United States agreed to pre-position
equipment in Kuwait that could help defend Kuwait, and Kuwait
would contribute funds to help pay the cost and allow U.S.
access to Kuwaiti facilities.\15\ The agreement also provided
for arms sales, training, and joint military exercises.
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\15\ Kuwait to Pay $215 Million for U S. Presence. Defense News,
June 15, 1992. p. 26. Kuwait Journal: The Runaway Army is Back But
Standing at Ease. New York Times, January 14, 1992, p. A4.
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Since the early 1980s, with the exception of arms control
treaties, only a few treaties approved by the Senate fell into
the political or security category. These included treaties
that dealt with boundaries between South Pacific Islands,\16\
the Constitution of the United Nations Industrial Development
Organization,\17\ an Amendment to the Statute of the
International Atomic Energy Agency, and approval of the
Protocols to the North Atlantic Treaty on the Accession of
Poland, Hungary, and the Czech Republic.\18\
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\16\ All four were approved by the Senate on June 21, 1993: Treaty
of Friendship with Tuvalu (Ex. W, 96-1, signed September 20, 1979);
Friendship Treaty with Kiribati (Ex. A, 96-2, signed September 20,
1979); Friendship and Maritime Boundary Treaty with the Cook Islands
(Ex. P. 96-2, signed September 3, 1980); Treaty with New Zealand on the
Delimitation of the Maritime Boundary between the United States and
Tokelau (Treaty Doc. 97-5, signed December 2, 1980).
\17\ Constitution of the United Nations International Development
Organization (Treaty Doc. 97-19, adopted April 8, 1979, approved by the
Senate, with understandings, June 21, 1983).
\18\ Amendment to the Statute of the International Atomic Energy
Agency, increasing the board members from nine to ten (Treaty Doc. 99-
7, approved by IAEA September 27, 1984). Approved by the Senate
September 7, 1988. Protocols to the North Atlantic Treaty of 1949 on
the Accession of Poland, Hungary, and the Czech Republic (Treaty Doc.
105-36, Exec. Rept. 105-14, reported with seven declarations and four
conditions on March 6, 1998. Advice and consent given on April 30,
1998).
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Two other very important treaties of the early 1990s in all
likelihood would have been concluded as executive agreements
except for close Senate oversight. Senate action to obtain
submission of these two treaties, the Final Settlement with
Respect to Germany and the Maritime Boundary Agreement with the
Soviet Union, is discussed below.
Treaty on the Final Settlement with Respect to Germany
The Treaty on the Final Settlement with Respect to Germany,
signed September 12, 1990,\19\ one of the first major post-Cold
War treaties, was concluded after the Communist regime in
Eastern Germany collapsed at the end of 1989, the Berlin Wall
fell, and reunification of Germany appeared inevitable. Its
purpose was to terminate the remaining rights in Germany of the
United States, France, the United Kingdom, and the Soviet
Union, which had been established at the end of World War II.
It also confirmed the borders of a united Germany and
reaffirmed Germany's renunciation of nuclear, biological, and
chemical weapons.
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\19\ Treaty Doc. 101-20. Signed by the Four Powers from the Second
World War (United States, France, the United Kingdom, and the Soviet
Union) and the two Germanys (the Federal Republic of Germany and the
German Democratic Republic) in Moscow.
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On July 23, 1990, the Senate Foreign Relations Committee
held hearings to discuss the future status of Germany and the
legal instruments that would embody the agreements being
negotiated. The State Department spokesman said the decision on
whether the agreement would be submitted to the Senate had not
yet been made, but indicated a leaning toward an executive
agreement. He held that the allied rights and other subjects
that were being negotiated were established in executive
agreements, not treaties, and were technical in nature; that
the West German Government wished to avoid a peace treaty that
might make them appear as a vanquished foe rather than a close
ally; and that the treaty did not constitute new obligations
that involved commitments or risks affecting the nation as a
whole.\20\ Private witnesses stressed the importance of Senate
advice and consent and therefore of a peace treaty with
Germany.
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\20\ U.S. Congress. Senate. Committee on Foreign Relations. Legal
Issues Relating to Future Status of Germany. Hearing. July 12, 1990. S.
Hrg. 101-899, Statement of Michael K. Young, Deputy Legal Advisor, pp.
2-11.
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After the agreement was signed, Senate Majority Leader
George Mitchell called on the administration to submit the
treaty to the Senate as soon as possible so the Senate could
address it prior to adjournment. Noting press reports that
unidentified administration officials believed the agreement
might not require Senate approval, Senator Mitchell said:
Such a view hardly merits serious consideration. It
is an erroneous one. It is my judgment that this treaty
bears on issues of historic importance, of great
significance for our national security as well as for
our future political relations with all of Europe, and
treaties on such matters absolutely require the
participation of the Senate in its treatymaking
role.\21\
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\21\ Congressional Record, September 18, 1990, p. S13292 (daily
ed.).
The President submitted the treaty to the Senate on
September 26, 1990. Later, Senate Foreign Relations Committee
Chairman Claiborne Pell said Secretary Baker had asked his
views, and Senator Pell felt strongly it should be a
treaty.\22\ On October 5, 1990, the Foreign Relations Committee
reported the treaty without condition and the Senate approved
it by a vote of 98-0 on October 9, 1990. Simultaneously, the
committee also reported and the Senate approved a companion
measure, a simple resolution expressing the sense of the Senate
that U.S. ratification not be construed to diminish U.S.
determination not to recognize the incorporation of the Baltic
States by the Soviet Union.\23\
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\22\ U.S. Congress. Senate. Committee on Foreign Relations. Treaty
on the Final Settlement with Respect to Germany. Hearing. September 28,
1990. S. Hrg. 101-1124, p. 38.
\23\ S. Res. 334, approved by Senate October 9, 1990.
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Maritime Boundary Agreement with the Soviet Union
The Agreement with the U.S.S.R. on the Maritime Boundary
concluded June 1, 1990,\24\ resolved a dispute between the
United States and the Soviet Union which arose after 1977 when
both nations established 200-mile fishery and exclusive
economic zones (EEZs). The formation of these zones revealed
conflicting interpretations and measurements of the line
established in the 1867 Convention ceding Alaska.
---------------------------------------------------------------------------
\24\ Signed June 1, 1990, and submitted to the Senate September 26,
1990. Treaty Doc. 101-22.
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During the negotiations, which lasted 9 years, some
Senators became concerned that the Department of State was
considering concluding the agreement as an executive agreement
on grounds that the 1867 line was a boundary line and the new
line was just a variation. Senator Jesse Helms contended the
1867 line was merely a line of demarcation but not a boundary
under international law, and that boundaries such as the new
line had always been delimited by treaty. Subsequently, in 1989
the Senate adopted legislation stating its sense that the
Department of State should submit to the Senate in treaty form
all boundary agreements with the Soviet Union. In the
conference with the House, this was changed to a sense of
Congress statement ``that all international agreements
pertaining to the international boundaries of the United States
should be submitted to the Congress for such consideration as
is appropriate pursuant to the respective constitutional
responsibilities of the Senate and the House of
Representatives.'' \25\ The agreement was submitted to the
Senate on September 26, 1990, and approved without reservation
by a vote of 86-6 on September 16, 1991.
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\25\ Introduced by Senator Jesse Helms, July 20, 1989, as amendment
to Foreign Relations Authorization Act, FY 1990 and 1991. Adopted as
Section 1007. See Exec. Rept. 102-13.
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arms control treaties
Arms control treaties are the only category of agreement in
the political-military field that have been concluded primarily
in treaty form, and have provided the major vehicle in recent
years for special Senate influence on foreign policy. This may
be in part because the congressional desire to pass judgment on
arms control agreements was clear. The Arms Control and
Disarmament Act provided that no action obligating the United
States to reduce its armaments could be taken except pursuant
to the treatymaking power or unless authorized by further
affirmative legislation by Congress.\26\ The policy statement
was buttressed by the power Congress has in determining levels
of armaments and armed forces through defense authorizations
and appropriations. Presidents have submitted most arms control
agreements to the Senate as treaties. An exception is the SALT
I Interim Agreement, signed May 26, 1972, which President Nixon
submitted as a statutory agreement and Congress approved by
legislation.\27\
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\26\ Section 33, Public Law 87-297, as amended, approved September
26, 1961.
\27\ Public Law 92-448, signed September 30, 1972.
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Arms control treaties in recent years have generally been
among the most controversial treaties and those on which the
Senate has spent the most time. In addition to the Foreign
Relations Committee, the Armed Services, Intelligence,
Governmental Affairs, and Judiciary Committees have reviewed
arms control agreements and sometimes issued reports on them.
The Senate also established a bipartisan Senate Arms Control
Observer Group in 1985 to observe and monitor arms control
negotiations with the Soviet Union. The members served as
consultants and advisers at negotiations and had frequent
meetings with executive branch and military officials.\28\
During the 1990s, as the United States and Russia stopped
holding formal arms control negotiations while awaiting the
ratification and entry into force of existing agreements, the
Arms Control Observer Group curtailed its activities. In 1999,
in an effort to reinvigorate the group and restore Senate
involvement in the arms control process, the Arms Control
Observer Group was reconstituted as the Senate National
Security Working Group. The members of this new group were to
act as observers at negotiations relating to the ``reduction,
limitation, or control of conventional weapons, weapons of mass
destruction, or the means of delivery of any such weapons,'' at
negotiations on missile defenses, and at negotiations on export
controls.\29\
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\28\ A list of the activities of the Senate Arms Control Observer
Group is contained in the remarks of Senator Lugar in the Congressional
Record, September 30, 1992, pp. S15715-S15719.
\29\ This was accomplished through S. Res. 75 on March 25, 1999.
Congressional Record, March 25, 1999, p. S3565.
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The United States and Russia have, in the past decade,
taken numerous steps to alter their nuclear forces without the
formal framework provided by treaties. Chief among these were
the Presidential Nuclear Initiatives of 1991. In late
September, President George Bush announced that he was
withdrawing all U.S. non-strategic nuclear weapons from naval
vessels and overseas deployment, and stated that the United
States would eliminate many of these weapons.\30\ He called on
Soviet President Gorbachev to take similar steps. President
Gorbachev reciprocated in early October.\31\ These initiatives
led to significant reductions in deployed nuclear forces.
Although many Members of Congress praised these initiatives
after they were announced, President Bush neither consulted
with nor informed the Senate of his intentions prior to
announcing the initiatives.
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\30\ Presidential Initiative on Nuclear Arms. Fact Sheet. The White
House, Office of the Press Secretary, September 27, 1991.
\31\ Text of Gorbachev Reply to President's Nuclear Initiative.
U.S. Embassy, Moscow. October 5, 1991.
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In several cases, the United States has chosen to abide by
treaties without gaining Senate advice and consent to
ratification. This occurred with the SALT II Treaty, which the
United States and the Soviet Union signed on June 18, 1979.\32\
The Senate never voted on the treaty although the Foreign
Relations Committee reported it favorably with 2 reservations
and 18 statements and understandings. In December 1979, after
the Soviet invasion of Afghanistan, President Carter asked that
consideration be postponed, and Presidents Reagan and Bush
never asked for consideration. On May 30, 1982, President
Reagan declared that the United States would refrain from
actions that would undercut the SALT agreements as long as the
Soviet Union showed equal restraint. Congress played a role in
shaping this policy because many Members had urged President
Reagan to observe the limits in SALT II. A similar circumstance
existed with respect to the 1974 Threshold Test Ban Treaty,
which limited the underground nuclear tests to 150 kilotons.
President Ford submitted the treaty to the Senate in 1976 but
the Senate did not approve ratification until 1990, after the
United States and the Soviet Union had negotiated new
verification protocols. In the interim, the United States did
observe the treaty's 150 kiloton limit on nuclear weapons
tests.
---------------------------------------------------------------------------
\32\ Ex. Y, 96-1. Submitted to the Senate June 25, 1979, Reported
November 19, 1979, Exec. Rept. 96-14. Automatically re-referred at end
of 96th Congress. Resolution to discharge committee submitted, July 15,
1986, S. Ex. Res. 445. Ordered returned to the President by S. Res.
267, approved by the Senate on October 12, 2000.
---------------------------------------------------------------------------
In contrast, during the latter half of the 1990s, Congress
prohibited the United States from reducing its nuclear forces
to the levels mandated by the second Strategic Arms Reduction
Treaty (START II) until that treaty entered into force.
Beginning in fiscal year 1998, it included a provision in the
annual defense authorization bills that precluded obligating or
expending funds for ``retiring or dismantling, or for preparing
to retire or dismantle'' strategic nuclear weapons that the
United States would have retained under the START I Treaty but
eliminated under START II.\33\ The U.S. Senate had consented to
ratification of START II in January 1996, but the Russian
parliament did not approve this treaty until April 2000. Many
in Congress and the Clinton Administration believed that this
legislation would provide an incentive for Russia to approve
the treaty by indicating that the United States would not
reduce its forces until START II entered into force.
---------------------------------------------------------------------------
\33\ Public Law 105-85, Sec. 1302, as amended by Public Law 106-65
Sec. 1501.
---------------------------------------------------------------------------
The United States has also pursued arms control through
agreements other than treaties. Some ``confidence-building
measures,'' such as an agreement of September 30, 1971, on
measures to reduce the risk of outbreak of nuclear war by
accident, have been concluded as executive agreements. In other
cases, particularly under the CSCE, agreements have been
labeled politically, rather than legally, binding. At the 1992
Helsinki Review Conference, NATO and former Warsaw Pact members
signed a follow-up conventional arms accord on regulating troop
levels between the Atlantic and the Urals.\34\ Congress has
closely monitored action in the CSCE through a joint Commission
on Security and Cooperation in Europe. Congress also initiated
an ``arms control'' program with the Soviet Union and Russia
through its passage of the Nunn-Lugar amendment to the
implementing act for the Conventional Armed Forces in Europe
(CFE) Treaty.\35\ This amendment created the Cooperative Threat
Reduction (CTR) Program, which has provided U.S. assistance to
Russia and other former Soviet states to help with the safe and
secure transportation, storage, and elimination of nuclear and
other weapons and materials. The United States has signed
numerous Memorandums of Understanding with the recipient
nations to implement this program, but none has required Senate
advice and consent. Nonetheless, Congress affects policy and
expenditures on this program through the annual authorization
and appropriations process.
---------------------------------------------------------------------------
\34\ White House statement said, ``President Bush also signed the
Concluding Act of the Negotiation on Personnel Strength of Conventional
Armed Forces ion Europe, otherwise known as the CFE-1A agreement * * *.
The CFE-1A accord places politically binding limits on military
manpower in Europe.'' CFE Treaty and CFE-1A Agreement. U.S. Department
of State Dispatch. July 13, 1992, p. 560.
\35\ Public Law 102-228. Signed on December 12, 1991. Congressional
Record, November 25, 1991, p. S18003.
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The complexity and detail in arms control treaties has
increased significantly as a result of the desire of the
legislative and executive branches to assure adequate
verification. The detailed provisions have often resulted in a
need for modifications and the development of mechanisms for
informal amendments, usually negotiated in compliance bodies
established by the treaties, that are not submitted to the
Senate.\36\ In addition, agreements on implementation issues
often concluded as executive agreements that are not submitted
to the Senate.
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\36\ For discussion, see Koplow, David A. When Is an Amendment Not
an Amendment?: Modifications of Arms Control Agreements Without the
Senate. University of Chicago Law Review. vol. 59, Summer 1992, pp.
981-1072.
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As in other categories, the Senate has, since the end of
World War II, approved most arms control treaties without
formally attaching conditions of any type.\37\ Since the mid-
1980s, however, the Senate has attached significant conditions
to the major arms control treaties presented to it, namely the
Intermediate-Range Nuclear Forces (INF) Treaty, the Threshold
Test Ban Treaty and Protocol, the Treaty on Conventional Armed
Forces in Europe (CFE), the CFE Flank Agreement, the START I
and START II Treaties, the Chemical Weapons Convention (CWC),
and the Open Skies Treaty. Beginning with the INF Treaty, the
Senate has added a condition concerning reinterpretation of the
treaty and a declaration that future arms control agreements
should be concluded as treaties. In addition, the Senate has
sometimes specified in the resolutions of ratification its
intention that certain conditions were to be transmitted to the
other parties and that some were to be clearly approved by the
other parties, or that some conditions were binding on the
President and others declared the intention of the Senate.\38\
In 1999, the Senate also rejected a treaty when it voted
against providing its advice and consent to the ratification of
the Comprehensive Test Ban Treaty (CTBT).
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\37\ These included the Antarctic Treaty of December 1, 1959 (Ex.
B, 86-2, approved August 10, 1960, by a vote of 66-21); the Outer Space
Treaty of January 27, 1967 (Ex. D, 90-2, approved April 25, 1967, by a
vote of 88-0); the Nuclear Non-Proliferation Treaty of July 1, 1968
(Ex. H, 90-2, approved March 13, 1969, by a vote of 81-15); the Seabed
Arms Control Treaty of February 11, 1971 (Ex. H, 92-1, approved
February 15, 1972, by a vote of 83-17); the Anti-Ballistic Missile
(ABM) Treaty (Ex. L, 92-2, approved August 3, 1972, by a vote of 83-
17); and the Environmental Modification Treaty of May 28, 1977 (Ex. K,
95-1, approved November 28, 1979, by a vote of 98-0).
\38\ For a more detailed discussion of Senate conditions, see
Chapter VI.
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INF Treaty
The U.S.-Soviet Intermediate-Range Nuclear Forces (INF)
Treaty, signed December 8, 1987, prohibited the two countries
from producing, flight-testing, or possessing ground-launched
ballistic or cruise missiles having a range between 500 and
5,500 kilometers, and required the destruction or removal of
some missiles and launchers.\39\ The Senate approved the INF
Treaty on May 27, 1988, with three ``conditions,'' two
``declarations,'' and three ``declarations and
understandings.''
---------------------------------------------------------------------------
\39\ Submitted to the Senate January 25, 1988, Treaty Doc. 100-11.
Reported by the Foreign Relations Committee April 14, 1988, Exec. Rept.
100-15. Approved by the Senate May 27, 1988, by a vote of 93-5.
---------------------------------------------------------------------------
The primary condition related to the treatymaking power and
the reinterpretation of treaties. This became an issue during
consideration of the INF Treaty because of concern that the
Reagan Administration was reinterpreting the 1972 Anti-
Ballistic Missile (ABM) Treaty to permit development and
testing of the Strategic Defense Initiative.\40\ Many Senators
believed that the executive branch could not alter the
interpretation of a treaty without the advice and consent of
the Senate and wanted to prevent similar reinterpretations in
the future. Consequently, the Senate attached a condition,
sponsored by Senators Byrd and Biden, stating that ``the United
States shall interpret the Treaty in accordance with the common
understanding of the Treaty shared by the President and the
Senate at the time the Senate gave its advice and consent to
ratification,'' and that the United States would not agree to a
different interpretation except pursuant to Senate advice and
consent or the enactment of a statute. It also spelled out the
bases for the common understanding as (1) the text of the
treaty and the resolution of ratification, and (2) the
authoritative representations provided by the administration to
the Senate in seeking its consent.\41\
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\40\ In 1993, the Clinton Administration made clear it had returned
to the original interpretation. Letter of July 13, 1993, from Acting
Director of the U.S. Arms Control and Disarmament Agency Thomas Graham,
Jr., to Senator Pell.
\41\ For text and discussion, see Chapter VI.
---------------------------------------------------------------------------
A second condition made ratification subject to the
President's obtaining the agreement of the Soviet Union that
certain agreements on definitions and meanings of the treaty
were of the same force and effect as the treaty. A third
condition required the President, prior to exchanging
instruments of ratifications, to certify that the United States
and the Soviet Union had a specified common understanding
concerning production of ground-launched ballistic missiles not
covered by the treaty. The resolution of ratification also
specified that one declaration and two understandings not
relating to the subject matter of the treaty were to be
communicated to the Soviet Union in connection with (and
therefore not necessarily in) the exchange of ratifications:
(1) the declaration that respect for human rights was an
essential factor to ensure the development of friendly
relations; (2) the understanding that the President should seek
demonstrable progress by the Soviet Union in its implementation
of certain documents concerning human rights; and (3) the
understanding that the United States through the Helsinki
process would expect full compliance with Soviet commitments in
the field of human rights.
Threshold Test Ban Treaty and Protocol
The United States and the Soviet Union signed the Threshold
Test Ban Treaty in 1974 limiting underground nuclear tests to a
yield of 150 kilotons.\42\
---------------------------------------------------------------------------
\42\ Treaty between the United States of America and the Union of
Soviet Socialist Republics on the Limitation of Underground Weapons
Tests, signed July 3, 1974 (Treaty Doc. 94-2) and protocol signed July
1, 1990 (Treaty Doc. 101-19).
---------------------------------------------------------------------------
President Ford submitted it to the Senate together with the
Peaceful Nuclear Explosions Treaty in 1976. The Senate Foreign
Relations Committee ordered the treaties reported in 1977, but
did not report them so that consideration of the Panama Canal
treaties could proceed. The Carter Administration did not
promote the two treaties because it was seeking a comprehensive
ban of nuclear tests.
In 1982 the Reagan Administration decided that additional
verification provisions would be necessary before it would
endorse the treaties, but the Soviet Union wanted negotiations
on additional verification provisions to await ratification. In
1987 President Reagan asked that the Senate consider the
treaties, subject to the condition that he would not ratify
them until the new verification protocols were negotiated and
approved by the Senate. Some Senators objected to this dual
ratification process. On February 27, 1987, the Foreign
Relations Committee reported the treaties with a reservation
that the President not ratify them until he certified that the
Soviet Union had concluded specified additional agreements, and
with a declaration supporting negotiations for a comprehensive
test ban.\43\ The administration did not support the
committee's recommendations and the Senate did not vote on the
treaties at that time.
---------------------------------------------------------------------------
\43\ Exec. Rept. 100-1.
---------------------------------------------------------------------------
The United States and the Soviet Union signed the
additional verification protocols on June 1, 1990; President
Bush submitted them to the Senate on June 28, 1990. On
September 14, 1990, the Foreign Relations Committee reported
the Threshold Test Ban Treaty and Protocol subject to a
declaration advocating five safeguards originally propounded by
the Joint Chiefs of Staff but modified by the committee, and a
declaration promoting continued efforts to achieve a verifiable
comprehensive test ban.\44\
---------------------------------------------------------------------------
\44\ Exec. Rept. 101-31.
---------------------------------------------------------------------------
Future amendments to the agreements were an issue of
concern during the committee's debate. In its report the
Foreign Relations Committee reviewed concerns that Article XI
of the protocol, which allows parties to amend the protocol
through agreement in a Bilateral Consultative Commission,
should not permit substantive changes without Senate approval.
The committee obtained assurances from the Director of the Arms
Control and Disarmament Agency that any substantive change that
would affect the basic aims of the treaty would have to be made
by means of an amendment, and that the executive branch would
notify the committee on any changes prior to their becoming
binding. The Senate approved both treaties and the new
protocols on September 25, 1990.
CFE Treaty
The Treaty on Conventional Armed Forces in Europe (CFE) was
signed on November 19, 1990, by 16 members of NATO and 6
members of the former Warsaw Pact including the Soviet
Union.\45\ CFE established equal ceilings for each group of
states in certain armaments categories and limited the forces
of individual countries. The Senate approved the treaty on
November 25, 1991, subject to six conditions and four
declarations. The resolution of ratification explicitly stated
that the conditions ``shall be binding upon the Executive'' and
that the declarations ``express the intent of the Senate.''
---------------------------------------------------------------------------
\45\ Treaty Doc. 102-8, submitted July 9, 1991. Reported November
19, 1991, with five conditions, four declarations, Exec. Rept. 102-22.
Approved by Senate, with amendments to resolution of ratification,
November 25, 1991, by vote of 90-4.
---------------------------------------------------------------------------
One of the conditions dealt with new states that might be
formed from the Soviet Union. When the treaty was submitted to
the Senate on July 9, 1991, the Soviet Union still existed.
After a coup attempt against Soviet President Gorbachev in
August 1991, the Soviet Union began to dissolve into a number
of independent states. During its consideration of the treaty,
the Senate found the situation rapidly changing and obligations
of successor states of the Soviet Union became a major issue.
The Senate added a condition to the resolution of ratification
stating that if, in the future, a new state was formed in the
area of application: (A) the President was to consult with the
Senate on the effect on the treaty; (B) if the President
determined that a new state's holdings were of such military
significance as to constitute a changed circumstance and he
decided not to invoke the withdrawal right, he was to request a
conference to assess the viability of the treaty; and (C) if he
made such a decision, he was to submit for the Senate's advice
and consent any major change in the obligations. If the states
in such a conference did not agree on a change in obligations,
the President was to seek a Senate resolution of support for
continued adherence. The Senate also added a declaration urging
the President to seek the accession of any new state that might
be formed in the area.
In the CFE resolution of ratification, the Senate made two
declarations dealing with the treatymaking power. One affirmed
``the applicability to all treaties of the constitutionally
based principles of the treaty interpretation set forth'' in
the INF condition. Another declared the Senate intent to
approve international agreements obligating the United States
to reduce or limit the armed forces in a militarily significant
manner only pursuant to the treaty power.
CFE Flank Agreement
As the 1995 deadline for CFE reductions approached, it
became evident that Russia would not meet the treaty's
requirements. The outbreak of armed ethnic conflict in and
around the Caucasus, most notably in Chechnya, led Russia to
claim it needed to deploy equipment in excess of treaty limits
in the ``flank zones.'' The parties to the CFE Treaty signed a
flank agreement on May 31, 1996. This agreement removes several
administrative districts from the old ``flank zone'' and, thus,
permits the equipment ceilings for the flank zones to apply to
a smaller area. To balance these adjustments, reporting
requirements were enhanced, inspection rights in the zone
increased, and district ceilings were placed on armored combat
vehicles to prevent their concentration.
The Clinton Administration initially did not plan to submit
the flank agreement to the Senate for its advice and consent to
ratification because it did not consider it to be an amendment
to the treaty. However, after the Senate leadership pressured
the administration and linked its submission to approval of the
CWC, the administration submitted the CFE Flank Agreement to
the Senate on April 7, 1997.\46\ The Foreign Relations
Committee and the full Senate both approved the resolution of
ratification by unanimous votes.\47\
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\46\ Treaty Doc. 105-5, submitted to the Senate April 7, 1997.
Approved by the Senate May 14, 1997.
\47\ Congressional Record, May 14, 1997. p. S4475.
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The resolution of ratification contains 14 conditions. Two
of these conditions address monitoring and compliance issues;
two state that any further modifications to the treaty or the
geographical boundaries of the flank zones must be submitted to
the Senate for advice and consent. Several of the conditions
demonstrate the Senate's concerns regarding the continued
stationing of Russian troops on the territories of other newly
independent states and with the potential for political and
economic coercion as a result of those troop deployments. As
with other resolutions approved since 1987, this one also
contains the Biden-Byrd condition on treaty interpretation,
which was initially included in the resolution of ratification
for the INF Treaty.
The resolution of ratification for the CFE Flank Agreement
contained one particularly contentious condition. In condition
9, the Senate stated that the United States could not deposit
the instruments of ratification for the CFE Flank Agreement
until the President certified to the Senate that he would
submit the Memorandum of Understanding on Succession (MOUS) to
the 1972 ABM Treaty to the Senate for its advice and consent.
This agreement named Russia, Ukraine, Belarus, and Kazakhstan
as the successors to the Soviet Union for the ABM Treaty. The
administration claimed that this agreement was not an amendment
to the treaty, but many Senators disagreed, and some wanted to
debate and defeat the MOUS as part of their effort to nullify
the ABM Treaty. The administration and many Democratic Senators
objected to condition 9, primarily because it was not germane
to the CFE Flank Agreement, but they realized that they did not
have the votes to remove it from the resolution of
ratification.
START I Treaty
The first treaty between the United States of America and
the Soviet Union on the Reduction and Limitation of Strategic
Offensive Arms (the START I Treaty) was signed by U.S.
President Bush and Soviet President Mikhail Gorbachev on July
31, 1991.\48\ Six months later, the Soviet Union disintegrated
into a number of independent states. On May 23, 1992, the
United States and Belarus, Kazakhstan, Russia, and Ukraine
signed a protocol that named those four nations, each of which
had Soviet nuclear weapons on its territory, as the successors
to the Soviet Union for the START I Treaty. The three non-
Russian states also agreed to return the nuclear warheads on
their territories to Russia. The President submitted the
protocol to the Senate on June 19, 1992, as an amendment to and
integral part of the START I Treaty. President Bush said the
protocol would ensure that only one state emerging from the
former Soviet Union would have nuclear weapons, and that all
the former states of the Soviet Union that have nuclear weapons
would be bound by the START I Treaty.
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\48\ Treaty Doc. 102-20, submitted to the Senate November 25, 1991.
Protocol (Treaty Doc. 102-32) submitted June 19, 1992. Treaty Doc. 102-
20 reported September 18, 1992, with Treaty Doc. 102-32. Exec. Rept.
102-53. Approved by Senate October 1, 1992.
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In the resolution of ratification, the Senate adopted eight
conditions designated as binding upon the President. The
conditions included that President Bush notify Belarus,
Kazakhstan, and Ukraine that letters obligating them to
eliminate all nuclear weapons and strategic offensive arms from
their territory within 7 years would be legally binding. The
President was also directed to communicate to the three states
that the United States would regard as inconsistent with the
START I Treaty any actions inconsistent with their obligations
to adhere to the Non-Proliferation Treaty in the shortest
possible time.
Concerning implementation arrangements, the Senate made it
a condition that failure to reach agreement would require the
President to consult with the Senate. In the event Belarus,
Kazakhstan, and Ukraine did not eliminate nuclear weapons and
strategic offensive armaments in their territory within 7
years, it was a condition that the President should consult
with the Senate and submit any change in obligations for advice
and consent of the Senate or, if the President decided not to
invoke the withdrawal right, seek a Senate resolution of
support. Another condition required the President to submit a
report on compliance with specified arms control treaties
within 180 days of advice and consent. A final condition, known
as the Biden condition, required that the President ``seek an
appropriate arrangement, including the use of reciprocal
measures, to monitor (A) the numbers of nuclear stockpile
weapons on the territory of the parties to this treaty and (B)
the location and inventory of facilities on the territory of
the parties to this treaty capable of producing or processing
significant quantities of fissile materials.'' This condition
reflected growing concern about the safety and security of
former Soviet nuclear weapons and materials. The Senate Armed
Services Committee, in its report on START I, objected to this
condition, in part because it doubted the analysis supporting
it and in part because it feared that efforts to negotiate such
an arrangement could slow the negotiations on the new START II
Treaty. The committee recommended that the Biden condition
either be eliminated from the START I resolution of
ratification, or that it be cast as a non-binding ``sense of
the Senate'' recommendation.\49\ The Senate Foreign Relations
Committee did not accept this recommendation. However, it
indicated, in its report, that this requirement would not apply
to the START II Treaty because such a requirement would likely
delay negotiations.\50\
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\49\ United States Senate. Committee on Armed Services. Military
Implications of the START I Treaty and the June 17, 1992 U.S.-Russian
Joint Understanding on Further Reductions in Strategic Offensive Arms.
Report 102-124. September 18, 1992. pp 10-14.
\50\ Congressional Record. September 28, 1992, p. S15441.
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The resolution of ratification also included six
declarations designated as expressing the intent of the Senate.
Among these, one affirmed the applicability to all treaties of
the condition on treaty interpretation in the INF Treaty.
Another declared again the Senate position that it would
consider for approval accords obligating the United States to
reduce or limit its arms in a militarily significant manner
``only pursuant to the treaty power set forth in Article II,
Section 2, Clause 2 of the Constitution.''
START II
The United States and Russia signed the second Strategic
Arms Reduction Treaty (START II), on January 3, 1993. START II
limits each of the parties to 3,500 warheads deployed on their
strategic offensive nuclear weapons. It bans all land-based
missiles with multiple warheads (MIRVed ICBMs) and limits the
number of warheads that could be deployed on submarine-based
ballistic missiles (SLBMs). In its original form, the two
nations were to reduce their forces to the START II limits by
January 1, 2003. However, in September 1997, the United States
and Russia signed a protocol that would extend this timeline
until the end of 2007.
President Bush submitted the START II Treaty to the Senate
on January 12, 1993.\51\ The Senate Foreign Relations Committee
held hearings on the treaty in 1993, but did not report it to
the Senate because the START I Treaty did not enter into force
until December 1994. The committee held additional hearings in
January, February, and March 1995, after the Republican Party
gained a majority in the Senate. The committee delayed its vote
on the resolution of ratification for most of 1995, while
Senator Helms, the chairman, and the Clinton Administration
sought to resolve a dispute over reorganization of the State
Department. The committee approved the resolution of
ratification, by a vote of 18-0 in December 1995 and the full
Senate offered its advice and consent to ratification, by a
vote of 87-4 on January 26, 1996. The resolution of
ratification contains 8 conditions and 12 declarations.\52\
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\51\ Treaty Doc. 103-1, submitted to the Senate January 15, 1993.
Reported by the Foreign Relations Committee December 15, 1995, Exec.
Rept. 104-10. Approved by the Senate, January 26, 1996.
\52\ Congressional Record. January 26, 1996. pp. S461-S463.
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By 1995, the debate over START II had become enmeshed in
the debate over ballistic missile defenses and the ABM Treaty.
This is evident in the resolution of ratification. The second
condition states that U.S. ratification of the START II Treaty
does not obligate the United States to accept any modification,
change in scope, or extension of the ABM Treaty. Also, the 10th
declaration discusses the nature of deterrence, noting that
deterrence based on offensive retaliation has become outdated
and that ballistic missile defense can contribute to a stable
deterrent relationship. The conditions and declarations also
address the Senate's concerns about compliance with START II
and, in the eighth declaration, the resolution refers to the
``clear past pattern of Soviet noncompliance with arms control
agreements and continued cases of noncompliance by the Russian
Federation * * *'' The resolution also displays the Senate's
concerns about the Clinton Administration's stewardship of U.S.
nuclear forces. The seventh condition states that the treaty is
not binding on the United States until it enters into force and
that the President must consult with the Senate if he wants to
reduce U.S. forces below START II levels. The 12th declaration
states that the United States is committed to maintaining its
nuclear weapons infrastructure and that the United States
reserves the right to resume nuclear testing to address warhead
design flaws or aging problems. Finally, the resolution
contains two declarations that have become standard in arms
control--one affirmed the applicability to all treaties of the
condition on treaty interpretation in the INF Treaty. Another
declared again the Senate position that it would consider for
approval accords obligating the United States to reduce or
limit its arms in a militarily significant manner ``only
pursuant to the treaty power set forth in Article II, Section
2, Clause 2 of the Constitution.''
Open Skies Treaty
The Treaty on Open Skies was signed in Helsinki on March
24, 1992, by 25 nations originally including 16 members of
NATO, 5 Eastern European members, and 4 former Soviet
republics.\53\ Its purpose was to enhance military openness by
providing each party the right to overfly the territory of
other parties in unarmed observation aircraft. After hearings
on the treaty and recommendations from the Senate Select
Committee on Intelligence and Committee on Armed Services, the
Foreign Relations Committee recommended advice and consent with
two conditions to be binding on the President. First, if a
party sought agreement within the Open Skies Consultative
Commission for the introduction of additional categories or
improvement of sensors, the President was to notify the Senate
and not agree to the improvement until at least 30 days after
the notification. Second, since the United States might not
need many overflights because of its observation satellite
capabilities, the President was to submit a report to the
Senate, after the treaty had been in force 1 year, assessing
the number of observation flights necessary. In addition, the
committee recommended a declaration reaffirming the principles
of treaty interpretation. The Senate gave its advice and
consent to the treaty on August 6, 1993.\54\
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\53\ Treaty Doc. 102-37, submitted to the Senate August 12, 1992.
Reported by the Foreign Relations Committee August 2, 1993, Exec. Rept.
103-5. Approved by Senate, August 6, 1993.
\54\ Congressional Record, August 6, 1993, p. S10800 (daily ed.).
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Chemical Weapons Convention
The Chemical Weapons Convention (CWC) opened for signature
in January 1993.\55\ Since then, 170 nations have signed it and
129 nations have ratified it. The convention entered into force
on April 29, 1997. The CWC is designed to promote the global
elimination of chemical weapons. It bans the development,
production, transfer, stockpiling, and use of chemical and
toxin weapons, mandates the destruction of all chemical weapons
production facilities, and seeks to control the production and
international transfer of the key chemical compounds of these
weapons.
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\55\ Treaty Doc. 103-21, submitted to the Senate on November 23,
1993.
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The Senate Foreign Relations, Armed Services, Intelligence,
and Judiciary Committees held a total of 13 hearings on the CWC
during the 103d, 104th, and 105th Congresses. Under a unanimous
consent agreement, the CWC resolution of ratification was to
have been brought to the Senate floor in mid-September 1996.
However, uncertain of sufficient votes to ensure passage, its
supporters postponed its consideration until after the 1996
Presidential election. President Clinton vowed to press for CWC
ratification in early 1997, but Senator Jesse Helms, chair of
the Foreign Relations Committee, opposed the CWC and stated
that it would not be a high priority for his committee.
Furthermore, Senator Helms and the Senate's leadership sought
assurances that other arms control agreements, such as the CFE
Flank Agreement and the Agreed Statements on Demarcation to the
ABM Treaty, would be brought before the Senate for its advice
and consent. The administration objected to this linkage, but
agreed to submit the agreements so that the Senate could
address the CWC before it entered into force.
After extensive negotiations between the White House and
key Senators, and within the Senate itself, a unanimous consent
agreement was reached to bring the CWC resolution of
ratification to the Senate floor on April 23, 1997.\56\ The
resolution contained 33 conditions, 5 of which were struck by
roll call votes during floor debate. The 28 remaining
conditions address a number of concerns raised during the
debate over the CWC. These include the costs of treaty
implementation and the U.S. financial contribution to the CWC's
compliance organization, verification issues and the U.S.
ability to detect and respond to noncompliance, and measures to
manage the burden on U.S. industry as a result of CWC
inspection and reporting requirements. The resolution of
ratification also contains the two conditions that have become
standard in arms control--the Biden-Byrd condition on treaty
interpretation from the INF Treaty and the condition that
reaffirms the Senate's role i