TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE

COMMITTEE PRINT

106

ONGRESS

2d Session

S. P

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

JANUARY 2001

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

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GOVERNMENT PRINTING OFFICE

WASHINGTON

66–922 CC

COMMITTEE PRINT

106

ONGRESS

2d Session

S. P

2001

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

JANUARY 2001

Printed for the use of the Committee on Foreign Relations

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(ii)

COMMITTEE ON FOREIGN RELATIONS

JESSE HELMS, North Carolina, Chairman

RICHARD G. LUGAR, Indiana

CHUCK HAGEL, Nebraska

GORDON SMITH, Oregon

ROD GRAMS, Minnesota

SAM BROWNBACK, Kansas

CRAIG THOMAS, Wyoming

JOHN ASHCROFT, Missouri

BILL FRIST, Tennessee

LINCOLN D. CHAFEE, Rhode Island

JOSEPH R. BIDEN, JR., Delaware

PAUL S. SARBANES, Maryland

CHRISTOPHER J. DODD, Connecticut

JOHN F. KERRY, Massachusetts

RUSSELL D. FEINGOLD, Wisconsin

PAUL WELLSTONE, Minnesota

BARBARA BOXER, California

ROBERT G. TORRICELLI, New Jersey

TEPHEN

IEGUN

, Staff Director

DWIN

K. H

ALL

, Minority Staff Director

ICHARD

J. D

OUGLAS

, Chief Counsel

RIAN

EON

, Minority Counsel

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(iii)

LETTER OF SUBMITTAL

ONGRESSIONAL

ESEARCH

ERVICE

IBRARY OF

ONGRESS

Washington, DC, January 2, 2001.

Hon. J

ESSE

ELMS

Chairman, Committee on Foreign Relations,

U.S. Senate, Washington, DC.

EAR

. C

HAIRMAN

: 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 provi-

sions 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 con-

gressional 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 Coun-

sel 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,

ANIEL

P. M

ULHOLLAN

Director.

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(v)

C O N T E N T S

Page

Letter of submittal ................................................................................................... iii

Introductory note ..................................................................................................... xi

I. Overview of the treaty process ............................................................................ 1

A. Background .................................................................................................. 2

The evolution of the Senate role .............................................................. 2

Treaties under international law ............................................................. 3

Treaties under U.S. law ............................................................................ 4

Executive agreements under U.S. law ..................................................... 4

(1) Congressional-executive agreements .......................................... 5

(2) Agreements pursuant to treaties ................................................. 5

(3) Presidential or sole executive agreements .................................. 5

Steps in the U.S. process of making treaties and executive agree-

ments ...................................................................................................... 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 termi-

nate 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

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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 in-

validation ....................................................................................................... 53

Invalidation by fraud, corruption, coercion or error ............................... 53

Invalidation by conflict with a peremptory norm of general inter-

national 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

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vii

VIII. Dispute settlement, rules of interpretation, and obligation to imple-

ment—Continued

A. Dispute settlement—Continued

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

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viii

X. Congressional oversight of international agreements—Continued

E. Other tools of congressional oversight—Continued

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

PPENDIXES

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 organiza-

tions ................................................................................................. 298

2. Negotiation and conclusion of treaties and international agree-

ments ...................................................................................................... 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

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1. Treaties and other international agreements—Continued

B. International agreements and international law —Continued

5. Modification, suspension, and termination of treaties —Continued

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 com-

mon 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 agree-

ments .............................................................................................................

359

723 Responsibility of office or officer conducting negotiations .....................

361

724 Transmission of international agreements other than treaties to Con-

gress: compliance with the Case-Zablocki Act ............................................

364

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4. Department of State Circular 175 Procedures on Treaties—Continued

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 Tax-

ation 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 ..........................

ABLES

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 Com-

mittee calendar ..................................................................................................... 286

A1–1. Publications providing information on U.S. treaties throughout the

treatymaking process ..........................................................................................

HARTS

1. Steps in the making of a treaty .......................................................................... 8

2. Steps in the making of an executive agreement ............................................... 10

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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 inter-

national 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, modi-

fication or termination—describing the respective senatorial and

Presidential roles at each stage. The study also provides back-

ground 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 (unrati-

fied by the United States); State Department Circular 175 describ-

ing treaty procedures in the executive branch; the State Depart-

ment 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 anno-

tated bibliography.

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Prepared by Richard F. Grimmett, Specialist in National Defense.

I. OVERVIEW OF THE TREATY PROCESS

Treaties are a serious legal undertaking both in international

and domestic law. Internationally, once in force, treaties are bind-

ing on the parties and become part of international law. Domesti-

cally, treaties to which the United States is a party are equivalent

in status to Federal legislation, forming part of what the Constitu-

tion 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’’ (Arti-

cle II, Section 2, Clause 2 of the Constitution). International agree-

ments not submitted to the Senate are known as ‘‘executive agree-

ments’’ in the United States, but they are considered treaties and

therefore binding under international law.

For various reasons, Presidents have increasingly concluded ex-

ecutive agreements. Many agreements are previously authorized or

specifically approved by legislation, and such ‘‘congressional-

executive’’ or statutory agreements have been treated almost inter-

changeably with treaties in several important court cases. Others,

often referred to as ‘‘sole executive agreements,’’ are made pursu-

ant 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 agree-

ments, and sole executive agreements underlie many issues. There-

fore, 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 mak-

ing 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 understand-

ings. 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

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See Chapters II and VI for references and additional discussion.

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 ex-

ecutive 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. B

ACKGROUND

THE EVOLUTION OF THE SENATE ROLE

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 Conven-

tion 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 instruc-

tions to negotiators and acting as a council of advisers to the Presi-

dent during the negotiations, as well as approving each treaty en-

tered 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 af-

firms its willingness to be bound by a specific treaty. From the be-

ginning, the formal act of ratification has been performed by the

President acting ‘‘by and with the advice and consent of the Sen-

ate.’’ 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 Sen-

ate 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 ad-

vise changes or deny consent altogether if its role was to be mean-

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These include treaties on income taxation with Thailand, signed March 1965, and Brazil,

signed March 13, 1967.

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 legisla-

tion); and adherence to the Permanent Court of International Justice, January 29, 1935.

See Chapter III for references and additional discussion.

ingful, the doctrine of obligatory ratification was for all practical

purposes abandoned.

Although Senators sometimes play a part in the initiation or de-

velopment 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, re-

ject and return it, or prevent its entry into force by withholding ap-

proval. 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 condi-

tions and completed the ratification process. In some cases, treaties

have been approved with reservations that were unacceptable ei-

ther to the President or the other party, and the treaties never en-

tered into force.

Only on rare occasions has the Senate formally rejected a treaty.

The most famous example is the Versailles Treaty, which was de-

feated 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 defini-

tively rejected only three treaties.

In addition, the Senate some-

times 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.

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. Even-

tually, unapproved treaties have been replaced by other treaties,

amended by protocols and then approved, or withdrawn by or re-

turned to the President. Thus the Senate has used its veto spar-

ingly, 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

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 ob-

ligations of the parties; and

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The Case-Zablocki Act (Public Law 92–403, as amended), is also examined in Chapter X. See

Appendix 2 for text of the law.

See Chapter IV for references and additional discussion. See also Chapter X.

(4) The form indicates an intention to conclude a treaty, although

the substance of the agreement rather than the form is the govern-

ing factor.

International law makes no distinction between treaties and ex-

ecutive 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.

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

LAW

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 cer-

tain provisions are not self-executing or that the President is to ex-

change or deposit the instrument of ratification only after imple-

mentation legislation has been enacted.

When a treaty is deemed self-executing, it overrides any conflict-

ing 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

LAW

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 sta-

tus are discussed below.

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(1) Congressional-executive agreements

Most executive agreements are either explicitly or implicitly au-

thorized in advance by Congress or submitted to Congress for ap-

proval. Some areas in which Congress has authorized the conclu-

sion of international agreements are postal conventions, foreign

trade, foreign military assistance, foreign economic assistance,

atomic energy cooperation, and international fishery rights. Some-

times Congress has authorized conclusion of agreements but re-

quired 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 reso-

lution international agreements involving matters that are fre-

quently handled by treaty, including such subjects as participation

in international organizations, arms control measures, and acquisi-

tion 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 pro-

visions of a prior treaty. Examples include arrangements and un-

derstandings under the North Atlantic Treaty and other security

treaties. The President’s authority to conclude agreements pursu-

ant to treaties seems well established, although controversy occa-

sionally 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, Sec-

tion 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 Min-

isters 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.

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See Chapter V for references and additional discussion.

STEPS IN THE U

PROCESS OF MAKING TREATIES AND EXECUTIVE

AGREEMENTS

Phases in the life of a treaty include negotiation and conclusion,

consideration by the Senate, Presidential ratification, implementa-

tion, 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 ad-

vice and consent of the Senate. Some executive agreements are

submitted to the Congress for approval and most are to be trans-

mitted to Congress after their conclusion. (See charts 1 and 2.)

Negotiation and conclusion

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 con-

sultation. 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 nego-

tiations. The original concept or proposal for a treaty on a particu-

lar subject, however, may come from Congress.

(2) Appointment of negotiators.—The President selects the nego-

tiators of international agreements, but appointments may be sub-

ject 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 in-

structions 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 defin-

ing the objectives through hearings or resolutions.

(4) Negotiation.—Negotiation is the process by which representa-

tives of the President and other governments concerned agree on

the substance, terms, wording, and form of an international agree-

ment. Members of Congress sometimes provide advice through con-

sultations 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 mis-

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See Chapter VI for references and additional discussion. Chapter VI also contains the text

of Senate Rule XXX.

nomer in that the agreement does not enter into force until the ex-

change or deposit of ratifications. In the case of executive agree-

ments, however, the signing and entry into force are frequently si-

multaneous.

Consideration by the Senate

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 transmit-

ted to the Senate, treaties are accompanied by a Presidential mes-

sage consisting of the text of the treaty, a letter of transmittal re-

questing the advice and consent of the Senate, and the earlier let-

ter 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 num-

ber. 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 Commit-

tee 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 pub-

lic.

(3) Senate Foreign Relations Committee action.—The treaty is

placed on the committee calendar and remains there until the com-

mittee 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 report-

ing 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 sub-

ject 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 re-

quire the consent of the other party or parties. (Note that in

Senate debate the term may refer to an amendment of the res-

olution of ratification, not the treaty itself, and therefore be

comprised of some other type of condition.)

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—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 rath-

er 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 Sen-

ate 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 condi-

tions need not be formally communicated to the other party, that

some conditions were binding on the President, and that some con-

ditions 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 con-

sider 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 re-

vised 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 abbre-

viate the procedures, and the Senate proceeds directly to the con-

sideration of the resolution of ratification as recommended by the

Foreign Relations Committee.

The Senate then considers amendments to the resolution of rati-

fication, 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. Sen-

ators may then offer reservations, understandings, and other condi-

tions 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 ratifica-

tion 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 (de-

feated). 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 ad-

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See Chapter VII for references and additional discussion.

See Chapter VIII for references and additional discussion.

In addition to Chapter VIII, see Chapter X.

vice 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 re-

quest 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. Other-

wise, treaties that do not receive the advice and consent of the Sen-

ate remain pending on the committee calendar indefinitely.

Presidential action after Senate action

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 in-

strument 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 trea-

ty 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. Procla-

mation serves as legal notice for domestic purposes and publicizes

the text.

Implementation

The executive branch has the primary responsibility for carrying

out treaties and ascertaining that other parties fulfill their obliga-

tions after treaties and other international agreements enter into

force, but the Senate or the entire Congress share in the following

phases.

(1) Implementing legislation.

—When implementing legislation

or appropriations are needed to carry out the terms of a treaty, it

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In addition to Chapter VIII, see Chapter VI, and discussion of INF Treaty in Chapter XI.

See Chapter IX for references and additional discussion.

must go through the full legislative process including passage by

both Houses and presentment to the President.

(2) Interpretation.

—The executive branch interprets the re-

quirements of an agreement as it carries out its provisions. U.S.

courts may also interpret a treaty’s effect as domestic law in appro-

priate cases. The Senate has made clear that the United States is

to interpret the treaty in accordance with the common understand-

ing of the treaty shared by the President and the Senate at the

time the Senate gave its advice and consent. This common under-

standing is based on the text of the treaty, the provisions of the

resolution of ratification, and the authoritative representations pro-

vided by the executive branch to the Senate during its consider-

ation. The Senate has further specified that the United States is

not to agree to or adopt an interpretation different from the com-

mon understanding except pursuant to Senate advice and consent

or enactment of a statute.

(3) Settlement of international disputes.—When disputes arise be-

tween parties on the interpretation of a treaty or on the facts relat-

ing 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

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, how-

ever, has not been consistent.

(1) Modification.—At the international level, treaties are amend-

ed by agreement of the parties or in accordance with their terms.

In the United States, amendments to treaties are ordinarily sub-

mitted to the Senate for its advice and consent, unless the treaty

provides for modification in some other way. Less formal modifica-

tions 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 con-

tain 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.

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See Chapter X for references and additional discussion.

See Chapter VI and Chapter XI for references and additional discussion.

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

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 re-

sponsibility 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 trea-

ties and other international agreements as part of its responsibil-

ities 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 re-

quiring 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 Congres-

sional 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 of-

fices.

TRENDS IN SENATE ACTION ON TREATIES

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 trea-

ties before the Senate.

Among steps to assure a meaningful role, the Senate has ap-

pointed observer groups to negotiations on important treaties, espe-

cially in the arms control and environmental areas. In 1987 and

1988 the Senate reviewed the constitutional principles of treaty in-

terpretation and affirmed that the United States should not agree

to or adopt an interpretation different from the common under-

standing shared by the President and the Senate at the time the

Senate gave its advice and consent to ratification, except pursuant

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to Senate advice and consent or enactment of a statute. The Senate

also provided a system to review the negotiating record of the In-

termediate Range Nuclear Forces (INF) Treaty. However, the For-

eign 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 recogni-

tion has been given to the importance of economic treaties, includ-

ing consular, investment, and tax agreements. The use of friend-

ship, 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). Subse-

quently, the Senate has given its advice and consent to BITs with

several countries.

Treaties providing for cooperation in bringing suspected crimi-

nals 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 mu-

tual legal assistance treaties (MLATs). The Senate Foreign Rela-

tions Committee has supported recent supplementary extradition

treaties and new MLATs, although sometimes with conditions.

Treaties for conservation of certain species of wildlife and regula-

tion of fisheries have been supplemented with broad treaties for en-

vironmental cooperation. Although supportive of environmental co-

operation treaties, the Senate Foreign Relations Committee has ex-

pressed 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. I

SSUES IN

REATIES

UBMITTED FOR

DVICE AND

ONSENT

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 Presi-

dent 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 deli-

cately 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

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See section on Environmental Treaties in Chapter XI.

of international deadline, that Senate consideration in depth is pic-

tured 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 usu-

ally 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 embar-

rass 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 consulta-

tion prior to or during negotiations. The President can initiate con-

sultation through meetings or by inviting congressional observers

to negotiations. The Senate can initiate consultation through hear-

ings and other meetings or through resolutions or legislative direc-

tives. In the past, some Senators have been concerned that partici-

pating in the formulation of a treaty could pose a conflict of inter-

est 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 com-

pleted is particularly acute in multilateral treaties. These treaties

are often negotiated by many nations in large international con-

ferences, 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 res-

ervations, 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 ad-

vice and consent.

A related problem arises from reservations made by other na-

tions to a multilateral treaty. Although the reservations may mod-

ify 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

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See section on Amendment in Chapter IX.

See Chapter XI for references and additional discussion.

consents to the U.S. acceptance of the reservations.

Without in-

formation on the reservations, however, the Senate cannot estimate

the size or significance of the problem.

The trend toward more multilateral agreements seems inevi-

table. The United States entered virtually no multilateral agree-

ments 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 agree-

ments 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 approxi-

mately 50 international organizations. It might appear that the

Senate would encounter the same difficulty in proposing modifica-

tions 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 ne-

gotiating partners. Moreover, the United States is in most in-

stances also a major player in the international organization, the

other negotiating partner.

DIMINISHING USE OF TREATIES FOR MAJOR POLITICAL

COMMITMENTS

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 estab-

lished a framework for international cooperation. The North Atlan-

tic 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 ap-

peared to halt, and many in Congress expressed concern with com-

mitments 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 commit-

ment.’’ Yet for the rest of the Cold War, military and security com-

mitments 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 con-

cluded as treaties or authorized by legislation, and the Senate in-

sisted that most agreements be submitted as treaties. As a result,

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See Chapter IX for references and additional discussion.

See Chapters VI, VIII, and IX for references and additional discussion.

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 com-

parable to that which existed at the end of World War II. As the

agreements to provide the framework for the new era are con-

cluded, 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 politi-

cal agreement, or unilateral executive branch statements or ac-

tions. In other cases, the Senate has insisted that agreements be

concluded as treaties. Such insistence appears to have become nec-

essary 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 termi-

nating treaties, and agreement has not been reached between the

branches on a single proper mode.

The general rule is that inter-

national 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 trea-

ties, more frequent changes and adjustments have become nec-

essary. The Senate has again been challenged to be vigilant for

unilateral executive branch action that might change a basic obli-

gation agreed to in its advice and consent to a treaty.

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, oth-

ers have been made solely by executive agreement or action. The

most controversial unilateral action of the executive branch in re-

cent 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 Initia-

tive. 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 under-

standing shared by the Senate at the time it gave its advice and

consent, without the advice and consent of the Senate or the enact-

ment of a statute. In action on subsequent arms control treaties,

the Senate affirmed the applicability of these principles to all trea-

ties. In 1993 the Clinton Administration made clear it had re-

turned to the ‘‘narrow’’ or ‘‘traditional’’ interpretation of the ABM

Treaty.

Twice in recent years the method of terminating a treaty has

raised serious controversy within the United States. In 1978, Presi-

dent Carter terminated the defense treaty with the Republic of

China without the concurrence of either the Senate or Congress

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See Chapter X for references and additional discussion.

when he established diplomatic relations with the People’s Repub-

lic 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 termi-

nation of the earlier treaties required an act of Congress, thus in-

cluding approval by the House of Representatives as well as the

Senate.

DIFFICULTY IN OVERSEEING TREATIES

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 rati-

fication signed by the President, or the proclamation, to enable

comparison with the resolution of ratification adopted by the Sen-

ate. It does not receive copies of reservations or conditions estab-

lished 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 implemen-

tation of treaties more effectively.

Compliance with treaties has also become an issue on some occa-

sions, especially in the arms control field. Oversight of compliance

has been done with traditional congressional tools such as hear-

ings, investigations, and required reports.

MINORITY POWER

Questions are sometimes raised because of the power of a minor-

ity 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 be-

cause 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 ne-

gotiations. The need for maintaining secrecy during negotiations

and acting with speed were also cited as justifications for not in-

cluding the House. In addition, by making the treaty power a na-

tional power and requiring the advice and consent of the Senate,

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462 U.S. 919 (1983).

H.J. Res. 60, Congressional Record (1945), pp. 4326–4368.

See section on the Vienna Convention on the Law of Treaties in Chapter III. The text of

the Vienna Convention is contained in Appendix 5.

the Framers gave expression to their desire to form a strong cen-

tral 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 unam-

biguous, by which one House may act alone with the unreviewable

force of law, not subject to the President’s veto.’’

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.

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 im-

plementing 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 im-

plementing 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 agree-

ments 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 Vi-

enna Convention on the Law of Treaties, a codification of the inter-

national law of treaties which is increasingly cited as a source of

international law, even though the United States has not yet rati-

fied 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 Sen-

ate 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.

The main dilemma is that simple ratification would leave unre-

solved important constitutional issues relating to executive agree-

ments. The Vienna Convention codifies an international law defini-

tion of treaties that makes no distinction between different forms

of international agreements. Article 46 permits a state to invali-

date a treaty if a violation of domestic law in concluding the treaty

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was ‘‘manifest and concerned a rule of its internal law of fun-

damental importance.’’ In 1972, however, the Department of State

objected to the interpretation proposed by the Senate Foreign Rela-

tions 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 tra-

ditionally 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 Con-

vention provides that an international agreement is void if it con-

flicts with a fundamental norm of general international law ‘‘ac-

cepted 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 Jus-

tice unless the parties agree to submit it to arbitration. While the

United States has entered a number of treaties providing for sub-

mission of disputes to the International Court of Justice, unquali-

fied 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 with-

drew its declaration accepting the court’s compulsory jurisdiction

on October 7, 1985. Moreover, in approving some treaties with pro-

visions for submission of disputes to the International Court of Jus-

tice, the Senate has added conditions. In giving its advice and con-

sent 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. I

SSUES IN

GREEMENTS

UBMITTED TO THE

ENATE

Any problems the Senate has in influencing treaties pale in com-

parison 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 au-

thority 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 legisla-

tion with procedures for congressional review and approval. The

problem is one of both quantity and quality. The number of agree-

ments 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 ex-

panded and their significance increased.

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See Chapter II for references and additional discussion.

See Chapter X for references and additional discussion. The text of the Case-Zablocki Act

is contained in Appendix 2.

INCREASING USE OF EXECUTIVE AGREEMENTS

As the United States became more involved in world affairs,

international agreements multiplied. Most of the growth was in ex-

ecutive 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 con-

cluded solely on the President’s own authority, without any influ-

ence from Congress. In other executive agreements, the Senate

played a role anyway. In the case of executive agreements con-

cluded 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 scru-

tiny of, or approved the agreements.

OVERSIGHT OF EXECUTIVE AGREEMENTS

—

THE CASE

ZABLOCKI ACT

To help in oversight of executive agreements, in 1972 the Case-

Zablocki Act was enacted. This Act (1 U.S.C. 112b), usually re-

ferred to as the Case Act, requires the Secretary of State to trans-

mit to Congress all executive agreements, including oral agree-

ments which are to be reduced to written form, within 60 days

after their entry into force. If the President deems that the imme-

diate 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 se-

curity classification.

The Case Act has proved helpful in informing Congress of execu-

tive agreements and has provided machinery for additional over-

sight. 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 au-

thorization.

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 cop-

ies of executive agreements. In most cases the agreements are sub-

mitted 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

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See Chapters III and X for references and additional discussion.

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 Depart-

ment. The Case Act requires any department or agency that enters

an international agreement to transmit the agreement to the De-

partment 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 agree-

ments 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 inter-

national 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 impor-

tant 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 Con-

gress 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 con-

sider sole executive agreements. In recent years, however, a major-

ity of agreements have been transmitted without such background

statements.

NON

BINDING INTERNATIONAL AGREEMENTS

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 communi-

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See Chapters III and IV for references and additional discussion.

ques after international meetings. Recently some non-binding

agreements appear to have become quite formal, however, assum-

ing 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 agree-

ments 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. D

ECIDING

ETWEEN

REATIES AND

XECUTIVE

GREEMENTS

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 ap-

propriate?

SCOPE OF THE TREATY POWER

;

PROPER SUBJECT MATTER FOR

TREATIES

The treaty power is recognized by the courts as extending to any

matter properly the subject of international negotiations. In prac-

tice 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 con-

cerns 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. Con-

troversial 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.

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See Chapter IV for references and additional discussion.

(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 imple-

menting legislation.

(3) Authorizations of U.S. participation in proceedings before cer-

tain types of international judicial tribunals.—The Constitution’s

vesting of the judicial power in one Supreme Court and such infe-

rior 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 con-

cern.—While there is no clear test of what matters are of inter-

national 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 dis-

tribution of powers or impair constitutionally protected rights.

SCOPE OF EXECUTIVE AGREEMENTS

;

PROPER SUBJECT MATTER FOR

EXECUTIVE AGREEMENTS

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 con-

stitutional 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 interchange-

able 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 appro-

priate for those questions which affect domestic law than treaties,

which are considered only by the Senate. When implementing legis-

lation is required, they are an efficient device because the approval

of the agreement and the necessary legislation may be accom-

plished in a single step.

Others might argue that to use congressional-executive agree-

ments instead of treaties, while preserving the congressional role,

could lead to erosion of the treaty power. Not only would it cir-

cumvent 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 agree-

ments 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 agree-

ments according to the better prospects for approval; they may not

object if Congress specifically authorizes such an agreement.

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See Chapter X.

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

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 trea-

ties.

Procedures for consultation between the executive branch and

Congress on the form of prospective international agreements, pri-

marily 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 consulta-

tion should occur. These procedures include State Department con-

sultation 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 ulti-

mately 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 as-

suring appropriate decisions, from the Senate’s perspective, on

whether particular international agreements should be concluded

as executive agreements, congressional-executive agreements, or

treaties.

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(27)

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

II. HISTORICAL BACKGROUND AND GROWTH

OF INTERNATIONAL AGREEMENTS

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 ne-

gotiated 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 Sen-

ate’s role evolved into a more formal pattern of passing judgment

on completed treaties, approving or not approving them, or approv-

ing them with conditions that the President must accept if he rati-

fies 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 grow-

ing proportion of treaties are now multilateral rather than bilat-

eral, 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. H

ISTORICAL

ACKGROUND OF

ONSTITUTIONAL

ROVISIONS

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 be-

tween the President and the Senate, the Constitution makes trea-

ties 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, with-

out 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

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The Records of the Federal Convention of 1787, at 143, 144–45, 155, 392 (Max Farrand ed.

1937) (hereafter cited as Farrand).

Ibid., p. 297.

Ibid., p. 393

Ibid., pp. 495, 498–499.

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 colo-

nies until superseded by the Constitution in 1789. The Continental

Congress was the only central organ of the Confederation. The Ar-

ticles vested in ‘‘the united states in congress assembled’’ the power

to enter into treaties and alliances, ‘‘provided that no treaty of com-

merce shall be made whereby the legislative power of the respec-

tive states shall be restrained from imposing such imposts and du-

ties on foreigners, as their own people are subjected to, or from pro-

hibiting 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 gen-

erally agreed that the single branch of the Continental Congress

would be replaced by three branches: legislative, executive, and ju-

dicial. Well into August, the delegates agreed to give the Senate

the exclusive power to make treaties and appoint ambassadors.

Opposition developed, however. On August 15, John Mercer of

Maryland objected to lodging the treatymaking power in the Sen-

ate, contending that it belonged to the executive department, add-

ing that treaties ‘‘would not be final so as to alter the laws of the

land, till ratified by legislative authority.’’

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.’’

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 con-

sent of two-thirds of the Senators present.

This portion of the re-

port was brought up for discussion on September 7. James Wilson

of Pennsylvania moved to add the words ‘‘and House of Representa-

tives’’ 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 sanc-

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Ibid., p. 538.

Ibid., p. 540.

Ibid., pp. 540–541, 547–550.

tion 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.

Considerable attention was given to the size of the Senate major-

ity 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 al-

ready a check by joining the President in the treatymaking proc-

ess.

Several amendments were defeated: (1) to allow two-thirds of

the Senate to make treaties of peace without the President’s con-

currence; (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 mem-

bers, & a reasonable time for their attending.’’

A committee was then appointed to revise the style and arrange-

ment 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 evi-

dently 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 strict-

ly 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

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The Federalist (Benjamin Fletcher Wright ed.), Cambridge, Mass., Harvard University Press

(1961), pp. 476–477.

the other. *** Its objects are CONTRACTS with foreign na-

tions, which have the force of law, but derive it from the obli-

gations of good faith. They are not rules prescribed by the sov-

ereign to the subject, but agreements between sovereign and

sovereign. The power in question seems therefore to form a dis-

tinct department, and to belong, properly, neither to the legis-

lative 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 mak-

ing them.

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 in-

telligence 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 mak-

ing 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 man-

ner 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 na-

tional 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 vest-

ed 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

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Ibid., pp. 422–424.

The Debates in the Several State Conventions on the Adoption of the Federal Convention

(Jonathan Elliot ed.), v. 4, p. 263.

Ibid., p. 265.

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.

Pierce Butler, one of the delegates of the Federal Convention and

a member of the committee that drafted the treaty clause, ex-

plained 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 Representa-

tives 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.

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 propos-

ing 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 nec-

essarily 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 de-

pository of this prerogative. The President and Senate joined

were, therefore, after much deliberation, deemed the most eli-

gible corps in whom we could with safety vest the diplomatic

authority of the Union.

B. E

VOLUTION INTO

URRENT

RACTICE

Early practice in treatymaking lends further insight into the in-

tentions 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 ei-

ther had been members of the Continental or Confederation Con-

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‘‘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.

The Writings of George Washington (John C. Fitzpatrick ed.), v. 30, p. 373.

Ibid., p. 378.

gresses or attended the Constitutional Convention or the state con-

ventions called to adopt the Constitution.

WASHINGTON

’

S ADMINISTRATIONS

On August 6, 1789, the Senate appointed a committee to confer

with the President on the manner in which communications be-

tween them concerning treaties and nominations should be han-

dled. 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 con-

sideration, but some of them may undergo much discussion; to do

which by written communications would be tedious without being

satisfactory.’’

In a second message on August 10, he distin-

guished 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 re-

ferred 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 prod-

uct:

On some occasions it may be most convenient that the Presi-

dent should attend the deliberations and decisions on his prop-

ositions; on others that he should not; or that he should not at-

tend 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.

President Washington recommended that the Senate should ac-

commodate 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 Presi-

dent, 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 Sen-

ate. 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 Presi-

dent of the United States to any other place, the President of

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1 Annals of Cong. 65 (August 21, 1789) (emphasis in original).

Ibid., p. 69.

Ibid., pp. 69–71.

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 Senate and Senators shall attend at the place appointed.

The Secretary of the Senate shall also attend to take the min-

utes of the Senate.

That all questions shall be put by the President of the Sen-

ate, 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.

The same day President Washington gave notice of his intention

to meet with the Senate to consider the terms of a treaty to be ne-

gotiated with the Southern Indians. The next day, Saturday, Presi-

dent Washington came into the Senate Chamber, accompanied by

Secretary of War Henry Knox, and presented a paper giving an ex-

planation 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 post-

poned voting on the first question. On the second question, regard-

ing instructions to the commissioners to pursue other measures re-

specting the Chickasaws and Choctaws, the Senate voted in the

negative.

On Monday, August 24, the President again returned to

the Senate Chamber and votes were taken on the rest of the ques-

tions.

These meetings between the Senate and the President are fa-

mous as the first and last times that a President personally ap-

peared before the Senate to seek its advice and consent. The meet-

ings apparently were not satisfactory to either side. While the Ex-

ecutive 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 deci-

sions. 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 ques-

tions be referred to a committee, Washington ‘‘started up in a vio-

lent 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 neu-

tral part of the Senate.

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 Washing-

ton’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 pro-

posed alterations, so that when Washington left the Senate-

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Memoirs of John Quincy Adams (Charles Francis Adams ed.), Philadelphia, J.B. Lippincott

(1875), v. VI, p. 427 (emphasis in original).

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 Richard-

son).

Ibid., p. 115.

Hayden, Ralston. The Senate and Treaties, 1789–1817. New York, Macmillan Co., 1920, pp.

37–38.

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.

It is error to conclude from this unhappy incident that Washing-

ton and future Presidents thereafter excluded the Senate from the

treaty negotiation process. Washington continued to seek the ad-

vice 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.’’

May 8, 1792, he asked the Senate these questions:

If the President of the United States should conclude a con-

vention or treaty with the Government of Algiers for the ran-

som of the thirteen Americans in captivity there for a sum not

exceeding $40,000, all expenses included, will the Senate ap-

prove 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 trea-

ty 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 ap-

prove of such treaty?

On some occasions, however, President Washington did not con-

sult the Senate in advance of negotiations. Four treaties with In-

dian tribes negotiated during Washington’s administrations with-

out 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 con-

sultations with the Senate should be undertaken prior to negotia-

tion 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 sav-

ing anything more than our ultimatum.’’

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.

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Hayden, op. cit., p. 101.

Hayden, op. cit., pp. 105–106.

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 accept-

ed by Britain, the President ratified the revised treaty without fur-

ther submission to the Senate.

The Senate on one occasion was called upon to assist in the in-

terpretation 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 inter-

pretation of the treaty was correct and advised that this answer be

given to France in the most friendly manner. This course was

adopted.

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 origi-

nally 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 ad-

vice,’’ 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 Presi-

dent usually secured the advice and consent of the Senate to

the details of the proposed treaty before opening the negotia-

tion. 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 instruc-

tions only with the completed treaty. *** The effect of the

change in procedure was to leave the President free to nego-

tiate the sort of treaty which the necessities of the situation

demanded and allowed, while the Senate retained a like free-

dom to accept, to amend, or to reject the result of his efforts.

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

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Ibid., pp. 108–111.

Ibid., p. 150.

Journal of the Executive Proceedings of the Senate, vol. 4, p. 98.

Ibid.

Ibid., p. 99.

Richardson, vol. 5, p. 2299.

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 adopt-

ed a resolution advising and consenting to its ratification on condi-

tion that a certain article be suspended and recommending renego-

tiation 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.

The King-Hawksbury Convention of May 12, 1803, became the first

treaty not to enter into force because the other party, Great Brit-

ain, would not accept an amendment advised by the Senate. Lord

Harrowby, the head of the British Foreign Office at that time, criti-

cized the practice of ratifying treaties with exceptions to parts of

them, a practice which he called ‘‘new, unauthorized and not to be

sanctioned.’’

Gradually, however, other countries became used to

the American procedure.

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 tena-

cious though, on the subject, I will most cheerfully adopt any modi-

fications which, on a frank interchange of opinions my Constitu-

tional advisors may suggest and which I shall be satisfied are rec-

oncilable with my official duties.’’

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 fu-

ture negotiation, if one should be deemed proper.’’

Instead of act-

ing 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.’’

President James K. Polk also invited the Senate’s advice on nego-

tiating 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 ulti-

mately come before them for their consideration the President se-

cures harmony of action between that body and himself.’’

INDIAN TREATIES

Conclusion of treaties with Indian tribes ended in 1871. For al-

most 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 ‘‘reg-

ulate 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.

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Cohen, Felix. Felix Cohen’s Handbook on Federal Indian Law (1971), p. 66.

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 Trea-

ty Process,’’ University of Pennsylvania Law Review, vol. 137, pp. 1511–1522 (1989).

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).

‘‘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.

I.M. Destler, ‘‘Treaty Troubles: Versailles in Reverse,’’ Foreign Policy, vol. 35, p. 50 (1978–

1979).

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.

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.

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.’’

That language was

later incorporated into permanent law as 25 U.S.C. §71 (1994).

CONFLICTS AND COOPERATION

Presidents have varied in their attitude toward Senate participa-

tion in the treaty process. Some have included Senators; others

have kept the negotiation of treaties an executive monopoly. Presi-

dent Woodrow Wilson believed that the President should not con-

sult with the Senate and treat it as an equal partner. He applied

this theory to the Versailles Treaty, which the Senate twice re-

jected.

On the other hand, Presidents such as William McKinley,

Warren Harding, and Herbert Hoover included Senators and Rep-

resentatives as members of U.S. delegations that negotiated trea-

ties. The details of the U.N. Charter were hammered out at a con-

ference 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.).

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 ac-

tually wrote one of the treaty provisions.

The Carter Administra-

tion consulted with at least 70 Senators during the final phase of

the negotiations of the Panama Canal Treaty.

During 1977 and

1978, 26 Senators served in Geneva as official advisers to the

SALT II negotiating team.

The notion that the President is the exclusive negotiator of trea-

ties and international agreements has been undercut by recent

trade legislation, which gives Congress a direct role in the negotia-

tion 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 Con-

gress, committees must act within a specified number of days, Con-

gress must complete floor action within a limited time, and amend-

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‘‘Extension of Fast Track Legislative Procedures,’’ hearings before the Senate Committee on

Finance, 102d Cong., 1st Sess. (1991), p. 9.

Public Papers of the Presidents, 1991, I, p. 450.

For discussion of domestic legal aspects of executive agreements, see Chapter IV.

1 Stat. 239 (1792).

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 dig-

nity’’ with treaties.

ments 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 consider-

ation by Congress.

In obtaining these procedural benefits, the President recognizes

that Members of Congress must be closely involved in the negotia-

tions 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 part-

nership between the two branches.’’ Because Congress retained the

power to defeat the implementing bill, Hills emphasized that Con-

gress ‘‘has a full role throughout the entire process in formulating

the negotiating objectives in close consultation as the negotiations

proceed.’’

President Bush gave Congress his ‘‘personal commit-

ment to close bipartisan cooperation in the negotiations and be-

yond.’’

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.

Legislation in 1792 authorized the Postmaster General

to make arrangements with foreign postmasters for the receipt and

delivery of letters and packets.

Executive officials also entered

into reciprocal trade agreements on the basis of statutory author-

ity. Although such agreements lacked what the Supreme Court in

1912 called the ‘‘dignity’’ of a treaty, since they do not require Sen-

ate approval, they are nonetheless valid international compacts.

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 ‘‘con-

cluded’’ does not mean agreements and treaties that have all en-

tered into force.

As apparent from the charts, after 1945 the number of inter-

national agreements concluded annually escalated rapidly. One fac-

tor was the continuing increase in the number of newly independ-

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Table II–1.—Treaties and Executive Agreements Concluded by the United States,

1789–1989

Period Treaties

Executive

Agreements

1789–1839 .............................................................................. 60 27

1839–1889 .............................................................................. 215 238

1889–1939 .............................................................................. 524 917

1939–1989 .............................................................................. 702 11,698

Total ...................................................................... 1,501 12,880

Data on the period since 1945 has been furnished by the Department of State, Office of the Assist-

ant 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

Year Treaties

Executive

Agreements

Year Treaties

Executive

Agreements

Year Treaties

Executive

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

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U.S. Department of State. Treaties in Force. A list of treaties and other international agree-

ments of the United States in force on January 1, 1999, pp. iii–v.

Treaties in Force, 1999, pp. 301–312.

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.

Some of the increase since 1973 may be attributed to the counting of agency level agree-

ments 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.

ent nations with which the United States interacts. Treaties in the

early days of the Nation were limited to Indian tribes and a com-

paratively few foreign powers, including France, Great Britain, Al-

giers, Spain, and Russia. By January 1, 1999, the United States

had bilateral treaties or other international agreements with more

than 200 countries.

Another factor was the growing international cooperation of the

United States, and the continuing emergence of new fields of inter-

national 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.

Cumulatively, in 1989 the United States was a party to 890 trea-

ties and 5,117 executive agreements.

The total number of treaties

and other international agreements in force increases with time be-

cause, once entered into, agreements remain in force until they ex-

pire 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.

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.

A primary factor is the sheer increase in vol-

ume of the amount of business and contacts between the United

States and other countries. Many observers believe it would be im-

practical to submit every international agreement the United

States enters to the Senate as a treaty. An executive agreement is

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See also Chapter IV, section on Executive Agreements.

U.S. Congress. Senate Committee on Foreign Relations. International Agreements: An Anal-

ysis 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.

McClure, Wallace Mitchell. International Executive Agreements. New York, Columbia Uni-

versity Press, 1941, p. 4.

See Chapter X.

usually much simpler to conclude or amend than a treaty. The Sen-

ate, with an already heavy workload, would quickly find itself over-

burdened if all international agreements, no matter how minor in

importance, were submitted to it for advice and consent.

Most executive agreements are concluded under the authority of

a statute or prior treaty.

In a wide variety of laws Congress has

authorized the executive branch to conclude international agree-

ments in fields including foreign aid, agriculture, and mutual secu-

rity. Similarly, the Senate has approved numerous treaties that im-

plicitly or explicitly authorized further agreement among the par-

ties. 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 per-

cent 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.

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 knowl-

edge that an international agreement was unlikely to receive the

approval of two-thirds of the Senate, or to assure that funds for im-

plementation 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 pur-

pose by substituting the more facile type of instrument.’’

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 re-

quiring 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 agree-

ments, often with expedited procedures.

The increasing use of international agreements other than trea-

ties challenged the Senate to oversee that the executive agreement

process was not used when agreements should properly be submit-

ted to the Senate as treaties. Similarly, the increasing rise of

agreements requiring approval by Congress, while assuring a con-

gressional role, challenged the Senate to distinguish which types of

agreements required submission to the Senate under the tradi-

tional treaty procedure.

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Information from Office of the Assistant Legal Adviser for Treaty Affairs, September 29,

2000.

The 189th member was Tuvalu.

See Treaties in Force, 1999, pp. v–vii, 331–478.

Compiled from Treaties in Force, 1999, pp. iii–v.

Information from Office of the Assistant Legal Adviser for Treaty Affairs, September 29,

2000.

United Nations Framework Convention on Climate Change. S. Exec. Rept. 102–55 to accom-

pany 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.

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 par-

ties. 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.

Multilateral agreements vary widely in number of parties, sub-

ject 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.

Multilateral agreements cover

more than 200 different subject areas ranging from Africa to World

War II and agriculture to women’s political rights.

Many multi-

lateral agreements establish international organizations, which in

turn conclude bilateral agreements with the United States. The

United States has concluded bilateral agreements with approxi-

mately 50 international organizations.

Some of these concern rou-

tine 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.

Although multilateral executive agreements being concluded out-

number 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.

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 ap-

prove a multilateral treaty without reservation because of the large

number of nations that had been involved and the difficulty of re-

negotiation. 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 commit-

tee’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.’’

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(43)

Prepared by Margaret Mikyung Lee, Legislative Attorney.

The Vienna Convention on the Law of Treaties, concluded at Vienna on May 23, 1969, en-

tered 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 par-

ties. For the text of the Vienna Convention on the Law of Treaties and a list of parties thereto,

see Appendix 5.

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).

III. INTERNATIONAL AGREEMENTS AND

INTERNATIONAL LAW

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 bind-

ing 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 inter-

national agreements are considered to be ‘‘treaties’’ in international

law terminology.

This chapter examines the definition of a treaty under inter-

national 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 in-

valid; and the status of ‘‘non-binding’’ agreements and statements

under international law.

A. T

IENNA

ONVENTION ON THE

AW OF

REATIES

INTERNATIONAL LAW STATUS

The Vienna Convention is in force internationally and has been

ratified by or acceded to by 91 countries.

The United States has

signed but has not ratified the Vienna Convention and thus is not

legally bound by its provisions.

Nevertheless, the convention re-

tains its status as a primary source of international law concerning

treaties, even for non-parties. The convention is partly a codifica-

tion of customary international law, but also partly a development

of international law and a reconciliation of different theories and

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I.A. Shearer, Starke’s International Law 397 (11th ed. 1994); M.N. Shaw, International Law

561 (3d ed. 1991).

Ibid.

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.

S. Exec. Doc. L, at 1.

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 prece-

dent 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 Trea-

ty); 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 Ant-

arctic Treaty); S. Exec. Rept. 85–3, at 17 (1957) (Statute of International Atomic Energy Agen-

cy). Regarding differences between customary and conventional treaty law, see American Law

Institute, Restatement (Third) of the Foreign Relations Law of the United States (1987) (here-

after cited as Rest. 3d). The Restatement accepts the Vienna Convention as, in general, con-

stituting 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 conven-

tion pending U.S. adherence to it. In a few other instances, the difference between the conven-

tion 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.

practices; provisions in the latter category are binding only on the

parties.

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 inter-

national law.

The Department of State describes the convention as

a widely regarded ‘‘major achievement in the development and

codification of international law.’’

In his letter transmitting the Vienna Convention to the Presi-

dent, 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 cur-

rent treaty law and practice.’’ (emphasis added.)

President Richard Nixon attributed similar status to the conven-

tion 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 inter-

national law applicable to treaties. I believe that the codifica-

tion of treaty law formulated by representatives of the inter-

national community and embodied in the Vienna Convention

meets this need.

The State Department’s position on the status of the Vienna Con-

vention largely accords with the positions of most members of the

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The convention is the final product of a U.N. Conference on the Law of Treaties. The Inter-

national 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 Commis-

sion’s membership consists of individual members and not government delegations, no require-

ment for either formal or informal Senate involvement existed at this stage of the convention’s

formulation.

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.

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).

Ibid.

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).

international community.

This status stems in part from the con-

cept that international treaties constitute one of the most signifi-

cant sources of international law. For example, the Statute of the

International Court of Justice directs the Court, when deciding dis-

putes, to apply international law gleaned from a variety of sources

beginning with international conventions.

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 pro-

gressive development of international law by expressing rules

which may not yet be fully recognized by the international commu-

nity. 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.

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 pas-

sage of time since the agreement’s conclusion or entry into force.

So the Vienna Convention contains rules governing treaty relation-

ships 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.

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.

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 Sen-

ate Committee on Foreign Relations ordered reported a Resolution

of Advice and Consent to the Ratification of the Convention on Sep-

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See U.S. Department of State, Digest of United States Practice in International Law, 1974,

195–198 (1975) (hereafter cited as Digest, 1974).

Ibid., at 195 (comments and emphasis added).

The convention does not definitively resolve this issue. See later discussion in this chapter

entitled: ‘‘Invalidation by Violation of Domestic Law Governing Treaties.’’

This is the part of the U.S. Constitution which requires Senate advice and consent to trea-

ties.

tember 7, 1972, subject to an understanding and interpretation.

The Department of State opposed the wording of the understand-

ing, and the convention was reconsidered in executive session by

the committee, but not reported out.

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 im-

portance], since Article 2, Section 2, of the United States Con-

stitution 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.

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.

Furthermore, it would have made clear that an international in-

strument 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 agree-

ments concluded by a President, on his own independent constitu-

tional authority, subject to Senate advice and consent. The word-

ing, therefore, could be seen as severely limiting a President’s inde-

pendent authority to make binding and firm international commit-

ments.

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 Ar-

ticle II, Section 2, of the Constitution.

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

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See Digest, 1974, supra note 14, at 197.

Letter dated January 31, 1974, Digest, 1974, supra note 14, at 196. The text of the alter-

native 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 interpre-

tation 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].

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).

standing under the Constitution of the United States that it would

not have in the absence of the Convention.’’

The Department of State, in comments on a subsequently pro-

posed 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 in-

clude international agreements made pursuant to a treaty,

international agreements authorized by Congress, or inter-

national agreements made pursuant to the President’s con-

stitutional authority [emphasis added].

In 1984, Robert Dalton, Assistant Legal Adviser for Treaty Af-

fairs, explained the department’s objection to the interpretation

and understanding proposed by the committee in 1973 in the fol-

lowing way:

*** The Department was concerned that other countries might

conclude that, by making the interpretation and understand-

ing, 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 arti-

cle 46 of the Vienna Convention if it found the provisions of

any such agreement to be unduly onerous.

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 Re-

lations Committee supported becoming party to the convention, al-

though 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 constitu-

tional procedures. In his view ‘‘the United States could not afford

to leave in limbo a series of important issues which remained out-

standing between the Congress and the executive branch in the

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Ibid., at 283–284.

Ibid., at 292.

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 Conven-

tion, 1986 hearings).

Vienna Convention, 1986 hearings. For discussion of the Case-Zablocki Act, see Chapter X.

Vienna Convention, 1986 hearings. Answers to questions submitted by J. Edward Fox, As-

sistant Secretary, Legislative and Intergovernmental Affairs, July 24, 1986.

area of international agreements. Some effort should be made to

remedy the situation by attempting to arrive at a consensus on sev-

eral of these issues.’’

Michael Glennon said the benefits of ratifi-

cation 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 Depart-

ment proposal.

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 De-

partment 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 dis-

putes that do not reflect customary law and cannot be invoked by

the United States until it becomes a party to the convention.’’

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 inter-

national 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 inter-

national executive agreements to Congress and related procedures

on consultation on the form of an agreement.

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 Rela-

tions 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.

The committee also submitted the question of whether the ad-

ministration believed the U.S. constitutional requirement for advice

and consent to be ‘‘a rule of internal law of fundamental impor-

tance.’’ The department replied the administration believed it was

‘‘a rule of internal law of fundamental importance,’’ enshrined in

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Ibid.

Vienna Convention, Art. 2, §2.

Vienna Convention, Art. 2, §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 inter-

national agreement entered into by any Member of the United Nations ** * shall ** * be reg-

istered 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 submit-

ted 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).

Vienna Convention, Art. 3.

the Constitution. But, the department said, other relevant rules en-

shrined in the Constitution were also rules of fundamental impor-

tance, including the President’s power as Commander-in-Chief, the

executive power clause, and clauses relating to the reception of am-

bassadors and taking care that laws be faithfully executed. The de-

partment continued:

If the resolution of advice and consent is to refer to one rule

of internal law of fundamental importance relating to the con-

clusion of treaties as that term is used in the Vienna Conven-

tion 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 exceed-

ingly 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 dif-

ficult for the President to exercise the full range of powers re-

lating to foreign affairs accorded to him under the Constitu-

tion.

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. T

REATY

EFINITION

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.

Under the definition of a treaty provided by the Vienna Conven-

tion,

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 re-

lated instruments and whatever its particular designation.

The Vienna Convention applies the term ‘‘treaty’’ to formal agree-

ments designated as treaties and also to other agreements in sim-

plified 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 valid-

ity of such agreements under international law.

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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 un-

dertaken 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 inter-

national 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 deter-

mining 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.

Department of State Memo of March 12, 1976, supra note 30.

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).

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 Vi-

enna Meeting of the Conference on Security and Cooperation in Europe, 3 Dep’t St. Dispatch

Supp. (July 1992).

C. C

RITERIA FOR A

INDING

NTERNATIONAL

GREEMENT

A paramount principle of international law is pacta sunt

servanda—that treaties must be kept. Treaties, therefore, are bind-

ing under international law. However, in the conduct of inter-

national relations, nations conclude business contracts or enter into

understandings that fall short of being binding agreements with

the status of international treaties.

It is, therefore, vital to under-

stand the elements that are necessary for an agreement to be con-

sidered a treaty under international law. Important criteria in de-

termining 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.

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 le-

gally binding.

Documents that are intended to invoke purely po-

litical or moral obligations are not, therefore, treaties under inter-

national law. The Final Act of the Conference on Security and Co-

operation in Europe (CSCE) or ‘‘Helsinki Accords’’ adopted August

2, 1975, and most of the subsequent agreements concluded by the

CSCE fall into this category.

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.’’

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, specify-

ing that it is governed by the law of the District of Columbia, is

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Department of State Memo of March 12, 1976, supra note 30 at 265.

Ibid.

See, for example, Dames & Moore v. Regan, 453 U.S. 654, 680 (1981). Rest. 3d, §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 Amer-

ican Law Institute as to the rules that an impartial tribunal would apply if charged with decid-

ing a controversy in accordance with international law.’’ Ibid., at 3.

Rest. 3d, §301(1).

Department of State Memo of March 12, 1976, supra note 30.

Ibid.

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 Sep-

tember 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 coopera-

tion, 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 Sub-

committee 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.

not a binding international agreement.

Although many inter-

national agreements are silent as to which law governs them, the

intent of the makers normally is that international law apply.

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 Restate-

ment, while lacking the force of formally enacted law, has been

cited as evidence of the law in the decisions of U.S. courts.

The

Restatement defines an international agreement in the following

manner:

‘‘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;

***.

SIGNIFICANCE

To have the status of a treaty under international law, an agree-

ment should concern itself with significant matters. It cannot deal

with trivial matters alone, even if they are couched in legal lan-

guage and form.

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 ***.’’

The exact

point, however, between 1 and 1 million maps at which the trans-

action becomes an international agreement is difficult to deter-

mine. 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.

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Department of State Memo of March 12, 1976, supra note 30, at 266.

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).

Department of State Memo of March 12, 1976, supra note 30 at 266.

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 inter-

national agreement.’’

SPECIFICITY

A treaty should clearly and specifically describe the obligations

legally assumed by the parties.

This requires that the terms set-

ting 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.

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 con-

clude an agreement, or something less than an agreement.

Thus,

in all probability a formal document entitled ‘‘agreement’’—one

with final clauses, signature blocks, entry into force dates, and dis-

pute settlement provisions—would reflect a general intent to con-

clude an international agreement.

It is emphasized that the substance, and not the form, of the

agreement determines whether it is a treaty. Occasionally, how-

ever, the failure to follow a customary form to conclude an agree-

ment 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 con-

strued as supporting evidence of an intent to be legally bound.

Inasmuch as the substance, not the form, governs the validity of

an international agreement, it is possible to have binding agree-

ments that are not in writing, although in practice this rarely oc-

curs. Hence, ‘‘whether a statement is made orally or in writing

makes no essential difference ***.

The Vienna Convention does

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Rest. 3d, §301, Comment b; and Vienna Convention, Art. 2(1)(a) and Art. 3.

Rest. 3d, §301, Comment a.

U.N. Charter, Art. 2, §4, and Art. 51. See Georg Schwarzenberger and E.D. Brown, A Man-

ual of International Law 24 (6th ed. 1976).

Vienna Convention, Art. 13, and Rest. 3d, §12(1).

Vienna Convention, Art. 11–18, and Rest. 3d, §312(1).

Vienna Convention, Art. 48, and Rest. 3d, §331(1)(a).

not apply to binding oral agreements, but as a matter of practice,

international agreements are usually in written form.

A wide variety of descriptive terms may be used to describe

international agreements, but these terms do not in themselves de-

termine whether an agreement has the status of a treaty. They

may, nevertheless, be considered a factor among others in deter-

mining whether the parties intend to create an internationally le-

gally binding agreement. Relevant terms include treaty, conven-

tion, protocol, declaration, agreement, act, covenant, statute, con-

cordat, exchange of notes, memorandum of agreement, memoran-

dum of understanding, modus vivendi or charter.

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.

D. L

IMITATIONS ON

INDING

NTERNATIONAL

GREEMENTS AND

ROUNDS FOR

NVALIDATION

International law does not limit the subject matter of inter-

national agreements. However, many theorists of international law

argue that certain principles of international law cannot be vio-

lated 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.

Other circumstances enable a sig-

natory to invalidate a treaty if it chooses to do so. For example, an

error made by a state concluding a treaty, which formed an essen-

tial basis of its consent to be bound, would permit that state to in-

voke the error to invalidate the treaty.

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

and

it may be expressed in many ways.

Since consent implies a vol-

untary decision, it can be negated by coercion, fraud, and corrup-

tion 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.

Current international rules relating to coercion, fraud and cor-

ruption 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:

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Rest. 3d, §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, §331, Comment b.

Rest. 3d, §331. This section combines and follows the rule stated in the Vienna Convention

in Arts. 49–53.

See Georg Schwarzenberger and E.D. Brown, A Manual of International Law 24 (6th ed.

1976).

Compelling law which is binding on parties regardless of their will and will not yield to

other laws.

Vienna Convention, Art. 53, Rest. 3d, Sec. 331(2)(b) and Comment e.

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).

(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.

(b) the fraudulent conduct of another negotiating state

that induced its consent; or

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 prin-

ciples of international law embodied in the Charter of the

United Nations; ***.

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.

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 evolution-

ary 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.

The principle of jus cogens

holds that an international agree-

ment is void if at its inception it conflicts with a peremptory norm

of general international law.

The Vienna Convention in Article 53

defines a ‘‘peremptory norm of general international law’’ as:

*** a norm from which no derogation is permitted and which

can be modified only by a subsequent norm of general inter-

national 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 ac-

cepts both the norm and its peremptory character. Under the con-

vention, the emergence of a new peremptory norm voids any treaty

provision violating the new norm.

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Rest. 3d, §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.

See Rest. 3d, §102, Comment k and Reporters’ Note 6.

See Rest. 3d, §702(a)–(f), Comment n and Reporters’ Note 6.

Vienna Convention, Art. 71, Comment a.

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.

Vienna Convention, Art. 66. See also comments of Secretary of State William P. Rogers, S.

Exec. Doc. L, supra note 3, at 7.

For further discussion of dispute settlement procedures, see Chapter VIII below. The acces-

sion 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

Continued

It is accepted that certain obligations of member states under the

U.N. Charter constitute jus cogens.

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 vio-

lating a jus cogens rule against the use of aggressive force.

There

is, however, substantial uncertainty as to what other norms are pe-

remptory 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.’’

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.

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. Gov-

ernment, 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 estab-

lished.’’

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 rec-

ognized by the international community of States as a whole.’’

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.

This International Court dispute settlement provi-

sion, 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 oc-

casion has expressed concern about treaty provisions requiring sub-

mission of disputes to arbitration or the International Court, but

on numerous occasions has given unqualified approval to such trea-

ties.

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type of declaration is made with considerable frequency in connection with other multilateral

conventions containing International Court of Justice dispute settlement clauses.

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 ref-

erence 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 pre-

rogative. 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 Com-

monwealth 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 var-

ious nations, see Interparliamentary Union, Parliaments and the Treatymaking Power, Const.

& Parl. Info., 1st Series, no. 145, 1st quarter (1986).

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.

Louis Henkin, Foreign Affairs and the United States Constitution, note 174 at 499 (2d ed.

1996).

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.

International law generally provides that a state may not invali-

date a treaty because of claims that its consent to be bound has

been expressed in violation of domestic law governing its com-

petence to conclude a treaty. Article 46(1) of the Vienna Conven-

tion, permits a state to invalidate a treaty if a violation of domestic

law was ‘‘manifest and concerned a rule of its internal law of fun-

damental importance’’ [emphasis added]. Article 46(2) further pro-

vides that a violation is manifest ‘‘if it would be objectively evident

to any State conducting itself in the matter in accordance with nor-

mal practice and in good faith.’’

These provisions have been of interest to the U.S. Senate pri-

marily 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.

the words of one constitutional authority:

A(n) *** issue is whether under international law the United

States could ever claim it was not bound by an agreement be-

cause 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 constitu-

tion is not wholly agreed. *** Art. 46(1) of the Vienna Conven-

tion on the Law of Treaties *** provides that a state cannot

invoke failure to comply with its internal law as a defense ‘‘un-

less that violation was manifest and concerned a rule of its in-

ternal 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 im-

portance’’ of Senate consent; in any event, failure to obtain

such consent cannot be a ‘‘manifest’’ violation of the Constitu-

tion since no one can say with certainty when it is required.

[Citations omitted]

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S. Exec. Doc. L at 5.

Rest. 3d, §311, Comment c.

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).

The potential ramifications of this problem were not addressed

by Secretary of State William P. Rogers, when in his letter submit-

ting 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 Arti-

cle 46 on the basis that:

*** it deals solely with the conditions under which a state

may invoke internal law on the international plane to invali-

date 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.

This issue was, however, addressed by the Restatement (Third)

which commented that:

Presumably, a manifest violation might involve either proce-

dural irregularities or a contravention of substantive prohibi-

tions 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 congres-

sional 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 at-

tempted to make such agreement on his own authority, his

lack of authority might be regarded as ‘‘manifest.’’

A somewhat similar position on what constitutes a ‘‘manifest’’

violation of a nation’s domestic law governing competence to con-

clude 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 do-

mestic law—and who expresses state consent to a treaty by an es-

tablished international procedure in fact binds the state to the

treaty under international law. In response to this issue, the com-

mission noted that decisions of international tribunals, together

with state practice, appear to support a position holding that fail-

ure of an agent to comply with domestic requirements does not af-

fect the validity of the treaty under international law.

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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 Commit-

tee 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 Inter-

national 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.

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]. Never-

theless, it is the President who voids an executive agreement, and not the Senate.

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 dif-

ficult for the Vienna Convention to provide more specificity in this area. Furthermore, the inter-

nal 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, For-

eign Affairs and the United States Constitution, supra note 66, note at 222.

See previous discussion in Sec. C, Criteria for a Binding International Agreement.

A different position was taken in 1975 by the Office of the Legis-

lative 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 memoran-

dum 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 in-

dicates acquiescence in the validity of the agreement.

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.

The issues discussed above resulted from the Vienna Conven-

tion’s lack of clarification of the circumstances which permit a state

to invalidate a treaty (under the rare and exceptional cir-

cumstances when a manifest violation of a state’s internal law re-

garding competence to conclude treaties might occur).

Thus Arti-

cle 46 has been an issue in the consideration of the convention by

the Senate Foreign Relations Committee, discussed above.

E. N

-B

INDING

GREEMENTS AND

UNCTIONAL

QUIVALENTS

A non-binding international agreement is one that does not meet

the previously stated criteria for a binding international agree-

ment.

Non-binding agreements do not convey an intention of the

parties to create legally committing relationships under inter-

national law. Often such documents convey merely a present inten-

tion to perform an act or a commitment of a purely personal, politi-

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Rest. 3d, §301, Comment e and Reporters’ Note 2.

73 Dep’t St. Bull. 323 (1975).

See Digest, 1975, supra note 70 at 325–327. See also U.S. Department of State, 11 Foreign

Affairs Manual, ch. 700 [Circular 175], §740.2–5, reproduced in Appendix 4 of this volume.

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.

Department of State Memo of March 12, 1976, supra note 30, at 266.

Rest. 3d, §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).

cal, or moral nature.

The Helsinki Agreement mentioned above,

for example,

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.

Non-binding agreements may take many forms, including unilat-

eral commitments and declarations of intent, joint communiques

and joint statements (including final acts of conferences), and infor-

mal 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 le-

gally binding obligation and a political obligation in describing cer-

tain 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 en-

force the obligation under international law. A ‘‘political’’ un-

dertaking 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 com-

mitment, it will be subject to an appropriate political re-

sponse.

UNILATERAL COMMITMENTS AND DECLARATIONS OF INTENT

Unilateral commitments and related instruments such as unilat-

eral declarations of intent cannot constitute international agree-

ments in the strict sense because an agreement, by definition, re-

quires at least two parties.

For example, a unilateral commit-

ment or declaration in the form of a promise to send money to a

country to help earthquake victims, but without reciprocal commit-

ments on the part of the other country, would be a promise of a

gift and not an international agreement.

Situations do exist, however, under which unilateral commit-

ments or declarations of intent may become binding international

agreements. Such instances involve parallel unilateral undertak-

ings by two or more states that are unilateral in form but which

in content constitute bilateral or multilateral agreements. Such re-

ciprocal unilateral declarations occur regularly in international re-

lations.

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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).

Ibid., ¶¶43 and 46 (Aust. v. Fr.), ¶¶46 and 49 (N.Z. v. Fr.). See also S. Rubin, The Inter-

national Legal Effects of Unilateral Declarations, 71 Am. J. Int’l. L. 1–30 (1977).

Art. 59 of the Statute of the International Court of Justice.

S. Rubin, The International Legal Effects of Unilateral Declarations, supra note 81, at 28–

30.

Ibid.

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 collec-

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 find-

ing was reached by the International Court of Justice in the Nu-

clear Tests cases.

In these cases, the International Courts ruled

that a series of unilateral declarations by France concerning its in-

tention 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:

It is well recognized that declarations made by way of unilat-

eral acts *** may have the effect of creating legal obligations.

Declarations of this kind may be, and very often are, very spe-

cific. When it is the intention of the State making the declara-

tion 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 inter-

national 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 obli-

gation 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.

The International Court’s decision in this matter, although bind-

ing only on the parties in these particular cases,

is problematic

to legal analysts because it runs contrary to the legal principles

that have traditionally governed such unilateral pronouncements

or statements of intent.

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 Inter-

national Court, some observers point out that few states would sub-

mit to its jurisdiction.

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.

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tion, 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.

See U.S. Department of State, Digest of United States Practice in International Law, 1977,

429 (1978) (hereafter cited as Digest, 1977).

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.

Ibid., at 799.

Rest. 3d, §301, Comment e.

See Oscar Schachter, The Twilight Existence of Nonbinding International Agreements, 71

Am. J. Int’l. L., 296, 299 (1977).

An important non-binding agreement was the communique and

joint statement issued by the United States and the U.S.S.R. re-

affirming 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 Re-

lations 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.’’

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.

The declaration, which sum-

marized 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 Rela-

tions Committee to the Department of State regarding its legal sig-

nificance. The reply from the State Department read in part:

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 estab-

lished international practice of concluding non-binding commu-

niques 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.

INFORMAL AGREEMENTS

In contrast to the calculated ambiguity of many non-binding dec-

larations and agreements, governments may enter into precise and

definite understandings that are clearly intended to affect their re-

lations with each other, but with a clear understanding that agree-

ments are not legally binding. Such informal agreements were for-

merly called ‘‘gentlemen’s agreements.’’

Informal agreements may be made by heads of state or govern-

ment, by foreign ministers, or by other authorized officials. In these

cases, the parties generally assume a commitment to perform or re-

frain from certain acts. Although the commitments are regarded as

non-legal, there is nevertheless an expectation of performance by

the parties.

An example is a 1908 agreement between the U.S. and Japanese

foreign ministers whereby the Japanese Government agreed to

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Ibid., citing 2 Foreign Relations of the United States, 339–393 (1924).

Rest. 3d, §301, Reporters’ note 2.

take administrative measures to limit the emigration of Japanese

laborers to the United States. This was done with the understand-

ing that the United States, in return, would not adopt discrimina-

tory exclusionary legislation against Japanese citizens. The agree-

ment terminated when the Congress enacted the 1924 immigration

law that discriminated against Japanese.

More recent examples

would include voluntary restraints agreed to by governments in the

trade field.

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 con-

sequences, 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 com-

mon to most governments and help to make non-binding agree-

ments attractive to them. Non-binding agreements provide a recog-

nized 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 inten-

tion 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 agree-

ments 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 par-

ties. 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.

Government officials may go on the

record as expressing their intent to honor non-binding commit-

ments. For example, Secretary of State Kissinger, while testifying

before the Senate Foreign Relations Committee regarding U.S. un-

dertakings in connection with the Sinai Disengagement Agree-

ments of 1975, noted that some of the undertakings were ‘‘not bind-

ing 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

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See 73 Dep’t St. Bull. 613 (1975).

United States as long as the circumstances that gave rise to them

continue.’’

Supplemental statements of this type, however, do not

affect the non-binding character of the commitment to which they

relate.

As nations use non-binding agreements for different reasons, it

is important to examine the motive for making a particular agree-

ment 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 Vi-

enna Convention on the Law of Treaties, which the United States

has signed but not ratified, is the most widely recognized inter-

national law source on current treaty law practice.

Non-binding international understandings do not show an intent

to create legal relationships. Frequently, such understandings con-

vey only an intent to perform an act or a commitment of a purely

personal, political, or moral nature. They may be important, how-

ever, as they are often used and often evoke expectations of compli-

ance from affected states.

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(65)

Prepared by Jeanne J. Grimmett, Legislative Attorney.

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 inter-

national 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 what-

ever 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.

IV. INTERNATIONAL AGREEMENTS AND U.S.

LAW

The purpose of this chapter is to identify the sources of constitu-

tional authority underlying the conclusion of international agree-

ments 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 con-

cluded 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 con-

stitutional one and has no international significance.’’

Even for

purposes of domestic law, differentiation between treaties and exec-

utive 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 distin-

guished procedurally in that treaties, unlike executive agreements,

are concluded exclusively pursuant to the joint action of the Presi-

dent and two-thirds of the Senate. Moreover, the domestic legal ef-

fect of treaties and executive agreements as law of the land may

be identical in all circumstances.

A. T

REATIES

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 gov-

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133 U.S. 258, 267 (1890). For a discussion of the routinely used Senate treaty condition re-

garding constitutional supremacy, see ‘‘Condition Regarding Supremacy of the Constitution’’ in

Chapter V, Section C, infra.

354 U.S. 1, 16 (1957). See also Doe v. Braden, 16 How. (57 U.S.) 635, 656 (1853); The Chero-

kee 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).

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 constitu-

tional 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 Con-

gress, or on any other branch of Government, which is free from the restraints of the Constitu-

tion.’’

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).

252 U.S. 416 (1920).

ernment itself and of the States. It would not be contended

that it extends so far as to authorize what the Constitution for-

bids, 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 excep-

tions, 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.

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 for-

eign 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 Con-

gress, or on any other branch of Government, which is free from

the restraints of the Constitution.’’

While there is little difficulty in light of the case law in establish-

ing the theoretical supremacy of the Constitution over treaties,

the identification of specific constitutional limitations that may af-

fect the treaty power is attended by some complexity. Various limi-

tations have been suggested over the years and are reviewed in the

following discussion.

It was asserted early by Jefferson in his Manual of Parliamen-

tary 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.’’

Notwithstanding Jefferson’s view, it seems well-settled

since Missouri v. Holland

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

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Ibid. at 433–434 and 435.

American Law Institute, Restatement (Third) of the Foreign Relations Law of the United

States §302, Reporters’ Note 3 (1987) (hereafter cited as Rest. 3d). See also Henkin, Louis. For-

eign 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 federal-

ism. 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 Mis-

souri 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.

See Henkin 1996, p. 193 and pp. 465–466, n. 72.

Jefferson’s Manual, p. 301.

reserved powers of the States and beyond the legislative com-

petence of Congress. According to Justice Holmes:

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.

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 pro-

visions of the Constitution that, at least in theory, could restrict

treatymaking. It has been suggested that a treaty could not under-

mine the guaranty of the States to a ‘‘Republican Form of Govern-

ment’’ (Article IV, Section 4), or infringe the authority of a State

concerning its militia (Article 1, Section 8, Clause 16, and Amend-

ment 2) as in a treaty mandating abolition of State militias pursu-

ant to a scheme of general disarmament.

While the Court in

Geofroy v. Riggs further indicated that a treaty may not cede a por-

tion 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.

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].’’

Concern-

ing this limitation, Jefferson added that ‘‘[t]his *** exception is de-

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Ibid.

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.’’

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).

Edwards v. Carter, 580 F. 2d 1055 (D.C. Cir. 1978), cert. denied, 436 U.S. 907 (1978).

See Wright, Treaties and Separation of Powers, pp. 65–85; Henkin 1996, pp. 194–195; Rest.

3d, §303, Comment c and Reporters’ Note 2.

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 Interpre-

tation).

nied 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.’’

Although there is judicial dicta that perhaps indirectly suggest

such a restriction,

Jefferson’s assertion seems to have been re-

futed by the actual practice under the Constitution. Thus, in-

stances 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.

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.

While there appears to be general agreement that subject matter

falling within the scope of Congress’ delegated powers may be dealt

with by treaty,

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 implement-

ing 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:

[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 be-

fore certain conventions are cognizable by the courts in the en-

forcement of rights under them.

A third limitation upon the treaty power has been raised in con-

nection with treaties authorizing participation by the United States

in proceedings before certain types of international judicial tribu-

nals. The basic constitutional issue concerning such participation

seems whether the authorizing treaty improperly delegates the

‘‘Judicial Power of the United States’’ which the Constitution other-

wise 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 judi-

cial tribunal adjudicates claims between nation-states, the type of

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Henkin 1996, p. 267.

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).

Additional Protocol to the Convention Relative to the Establishment of an International

Court of Prize, Sept. 19, 1910, reprinted in Charles, Treaties, p. 262.

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. Amer-

ican 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.

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’’).

Jefferson’s Manual, p. 301.

American Society of International Law Proceedings, v. 23, 1929, p. 194.

Henkin 1972, p. 152.

Rest. 3d, §302, Comment c and Reporters’ Note 2. See also Henkin 1996, pp. 197–198.

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.

The Inter-

national Court of Justice would be an example of this type of inter-

national tribunal.

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 ar-

rangement of this nature was envisioned in The Hague Prize Court

Convention of 1907

which established an international court with

appellate jurisdiction from national courts in prize cases. Con-

cerned that this procedure would be inconsistent with the final ap-

pellate jurisdiction of the Supreme Court, American negotiators

proposed a supplementary protocol

authorizing de novo actions

against the United States before the International Prize Court in

lieu of appeals from domestic courts.

A fourth limitation which has been alleged to circumscribe the

treaty power is that treaties must relate to ‘‘proper subjects of ne-

gotiation’’ with a foreign nation. Such a limitation is suggested by

judicial dicta

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 ***.’’

This restriction is also associ-

ated with remarks made by Charles Evans Hughes before the an-

nual 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 con-

cern. It is not a power intended to be exercised, it may be assumed,

with respect to matters that have no relation to international con-

cerns.’’

While the ‘‘international concern’’ limitation upon

treatymaking had been generally accepted,

the American Law In-

stitute rejected this view in 1987 in its Restatement (Third) of the

Foreign Relations Law of the United States.

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 exist-

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American Law Institute, Restatement 2d of the Foreign Relations Law of the United States

(1965), §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 do-

mestic 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 argu-

ments 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, §302,

Reporters’ Note 2.

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).

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 au-

thorized 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 Re-

view, 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 Exec-

utive to sign under Article II because it regulated matters of domestic concern not involving re-

lations with other nations. The court took note of the breadth of the treaty power, though admit-

ting 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.

Rest. 3d §302(2), Comment b, and Reporters’ Note 1; Constitution—Analysis and Interpre-

tation, p. 486; Henkin 1996, pp. 185 and 283 et seq.

354 U.S. 1, 16, 17 (1957).

64 Stat. 109 (1950).

ence of the latter does not remove a matter from international con-

cern.’’

The limitation appears to have rarely been an issue in re-

ported decisions. In Power Authority of New York v. Federal Power

Commission,

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.’’

A fifth and widely recognized limitation upon the treaty power

is that provided by the Bill of Rights.

This restriction upon

treatymaking seems implicit from the context of Justice Black’s re-

minder in Reid v. Covert that ‘‘[n]o agreement with a foreign na-

tional can confer power on the Congress, or on any other branch

of Government, which is free from the restraints of the Constitu-

tion,’’ and that ‘‘[t]he prohibitions of the Constitution were designed

to apply to all branches of the National government, and they can-

not be nullified by the Executive or by the Executive and the Sen-

ate combined.’’

The necessity for Justice Black’s statement origi-

nated in the contention, which the court rejected, that Article 2(11)

of the Uniform Code of Military Justice,

which effectively denied

trial by jury and other Bill of Rights protections to civilian depend-

ents accompanying American armed forces abroad, could neverthe-

less be sustained as legislation necessary and proper to implement

U.S. jurisdictional rights under specified bilateral agreements with

foreign host governments.

Whatever specific constitutional limitations may be deemed ap-

plicable to the treaty power in a given case, the courts, in lieu of

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10 Pet. (35 U.S.) 662 (1836). For commentary concerning this case, see Cowles, Willard.

Treaties and Constitutional Law. 1975 reprint ed., p. 112.

223 U.S. 317 (1912).

344 F. 2d 673 (5th Cir. 1965).

908 F. Supp. 738, 752 (C.D. Cal. 1995).

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 Sen-

ate consideration of the Convention on the Prohibition of the Development, Production, Stock-

piling 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 obli-

gations 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. Con-

gress. 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 disclo-

sures 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

Continued

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 Or-

leans v. United States,

a treaty provision conferring ‘‘full sov-

ereignty’’ 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 addi-

tional example is afforded by Rocca v. Thompson,

where the

Court, after noting ‘‘there is, of course no Federal law of probate

or the administration of estates,’’ refused to preempt the local ad-

ministration 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. Mar-

tinez Angusto v. Mason,

where a Federal Circuit Court of Ap-

peals, in the absence of an authorizing statute or Presidential di-

rective, 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 ar-

rest 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 assist-

ance 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.

It further held that

the treaty’s ‘‘reasonable suspicion’’ standard for freezing U.S. citi-

zens’ 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.’’

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States will first obtain a criminal search warrant supported by probable cause for challenge in-

spections and administrative warrant from a U.S. magistrate judge for routine inspections. Con-

gressional 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 Im-

plementation Act of 1998, Public Law 105–277, Division I, 112 Stat. 2681–858. See U.S. Con-

gress. 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.

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 consider-

ations 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 con-

travention of the exclusive constitutional authority of the House of Representatives to originate

all bills for raising revenue).

See text accompanying notes 28–29 supra. The Power Authority case notwithstanding, Sen-

ate reservations are generally deemed part of the treaty to which they are made and held effec-

tive as domestic law in the United States. Rest. 3d, §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 (dis-

senting opinion of Judge Bastian).

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, prefer-

ring instead to view the reservation as merely an expression of ‘‘the

Senate’s desires’’ and of ‘‘domestic policy.’’

The Senate’s reserva-

tion, which was appended to a bilateral treaty with Canada allocat-

ing the waters of the Niagara River for power development, speci-

fied 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 con-

gressional enactment. In characterizing the reservation as purely

domestic and hence not part of the treaty, the Circuit Court avoid-

ed 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.

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 effective-

ness as domestic law of the United States does not result automati-

cally upon its entry into force on the international level, but occurs

only where the instrument is ‘‘self-executing,’’ that is, where it op-

erates without any necessity for implementing legislation. The clas-

sic exposition of this principle is provided by Chief Justice Marshall

in Foster v. Neilson:

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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.

Rest. 3d, §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 re-

quired to be paid under the Jay Treaty of 1796. Jefferson’s Manual, p. 297; Constitution—Analy-

sis 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 Con-

stitution is declared to be the supreme law of the land. This, unquestionably, applies to all trea-

ties, 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 with-

holding the money. They act upon their own responsibility, and not upon the responsibility of

the treatymaking power.

Rest. 3d, §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.

Rest. 3d, §111, Reporters’ Note 6, citing U.S. Constitution, Article I, Section 8, ‘‘giving Con-

gress power ‘to define and punish Piracies and Felonies committed on the high Seas, and

Offences against the Law of Nations.’’’

Rest. 3d, §111, Comment i; Henkin 1996, p. 203.

*** 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 ad-

dresses itself to the political, not the judicial department; and

the legislature must execute the contract, before it can become

a rule for the Court.

Application of this general rule seems relatively simple where

the text of a treaty expressly recognizes the necessity for imple-

menting legislation or where the subject matter of the treaty falls

within an area traditionally regarded as requiring congressional ef-

fectuation 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.

Simi-

larly, an implementing statute also seems required in connection

with treaties which specify international crimes or criminal sanc-

tions for particular activities.

In this connection, it has been

noted that ‘‘[c]riminal law to implement the foreign relations of the

United States is wholly statutory.’’

Moreover, in light of Con-

gress’ power under Article I, Section 8, Clause 11, ‘‘to declare War,’’

it seems to be generally assumed that a treaty would not be suffi-

cient of itself to place the United States in a state of war.

Con-

cerning the general rule that treaties which pertain to the afore-

mentioned matters require congressional implementation, it has

been observed that:

*** 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

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Rest. 3d, §111, Reporters’ Note 6.

Ibid. § 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 authoriza-

tion. 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 in-

cluded 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 Conven-

tion 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 subse-

quently 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).

Diggs v. Richardson, 555 F. 2d 848, 851 (D.C. Cir. 1976).

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 Con-

gress, 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 Ap-

propriations 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 as-

sumed for the cases given.

Apart from instances where the terms of a treaty expressly con-

template implementing legislation or where such legislation is tra-

ditionally required owing to the nature of a particular treaty provi-

sion, whether a treaty is self-executing or not is a matter of inter-

pretation, initially for the Executive and ultimately for the courts

in the event of litigation.

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 execu-

tion.’’

Elsewhere it is maintained that where the self-executing

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Rest. 3d, §111, Comment h.

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 alter-

native enforcement mechanisms; (5) the implications of permitting a private right of action; and

(6) the capability of the judiciary to resolve the dispute.’’

3 Dall. (3 U.S.) 199 (1796).

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.

nature of an international agreement is unclear, ‘‘account must be

taken of any statement by the President in concluding the agree-

ment or in submitting it to the Senate for consent *** and of any

expression by the Senate *** in dealing with the agreement.’’

Al-

ternatively, it is urged that reference should be made to ‘‘the pur-

poses of the treaty and the objectives of its creators, the existence

of domestic procedures and institutions appropriate for direct im-

plementation, the availability and feasibility of alternate enforce-

ment methods, and the immediate and long-range social con-

sequences of self- or non-self-execution.’’

Where a treaty is deemed to be self-executing, any conflicting

provisions of State law must yield. This principle, which is ex-

pressly enshrined in the supremacy clause of the Constitution, was

early affirmed by the Supreme Court in Ware v. Hylton.

Accord-

ing to Justice Chase:

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, wheth-

er 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.

In the event of a conflict between a self-executing treaty and a

Federal statute, it is well-settled that legal primacy will be ac-

corded the measure which is later in time, albeit the courts will en-

deavor to harmonize the respective international and domestic obli-

gations 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 en-

deavor 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, pro-

vided always the stipulation of the treaty on the subject is self-

executing. If the country with which the treaty is made is dis-

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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).

252 U.S. 416. See also Neely v. Henkel, 180 U.S. 109, 121 (1901), indicating that the nec-

essary 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, §111,

Comment j.

Constitution—Analysis and Interpretation, pp. 481–482.

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).

Henkin 1996, p. 200. Note, however, Rest. 3d, §111, Comment h: ‘‘* ** strictly, it is the im-

plementing 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.’’

Executive agreements are also discussed in Chapters II, III, IX, and X.

satisfied 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 cog-

nizance.

If a particular treaty is not self-executing, and, accordingly, re-

quires legislative implementation to become law of the land, Con-

gress may enact such legislation notwithstanding that the subject

matter of the treaty would normally be beyond congressional com-

petence. 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 effec-

tuate 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

where Jus-

tice Holmes sustained both a treaty and an implementing act even

though comparable legislation, when unaided by a treaty, had pre-

viously been declared invalid by the courts. Concerning this

bootstrapping effect on the treaty power it has been observed that:

*** [T]he treaty power cannot purport to amend the Con-

stitution by adding to the list of Congress’ enumerated powers,

but having acted, the consequence will often be that it has pro-

vided 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 wheth-

er they are necessary and proper measures for carrying of the

treaty in question into operation.

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.

A caveat to this proposition exists, however, when the

treaty itself is incorporated as part of the statute.

B. E

XECUTIVE

GREEMENTS

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 Sen-

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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.

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 Agree-

ments. 1941 (hereafter cited as McClure); McDougal, Myres and Lans, Asher. Treaties and Con-

gressional-Executive or Presidential Agreements: Interchangeable Instruments of National Pol-

icy. 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 Agree-

ments—A Reply. Yale Law Journal, v. 54, 1945, p. 616; Wright, Q. The United States and Inter-

national 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. Con-

gressional-Executive Agreements. Columbia Journal of Transnational Law, v. 14, 1975, p. 434

(hereafter cited as Slonim).

ate (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 Constitu-

tion 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 ap-

probation (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.

Such agreements

are typically denominated as ‘‘executive agreements’’ and may be

further categorized as follows: (1) congressional-executive agree-

ments 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.

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 con-

troversial nature of particular executive agreements, it is perhaps

not surprising that questions have been raised concerning the ex-

clusive scope vel non of the treaty clause and the possible existence

of a substantive distinction between treaties and executive agree-

ments. Notwithstanding substantial scholarship devoted to ascer-

tain the Framers’ intentions concerning these matters, the under-

standing of the Drafters remains largely obscure.

By virtue of ac-

tual 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

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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 in-

strument for routine, nonpolitical arrangements has substantially broken down.’’ S. Rept. 129,

91st Cong., 1st Sess. 1969, p. 26.

Act of Aug. 4, 1790, ch. 43, §2, 1 Stat. 139.

Act of Feb. 20, 1792, ch. 7, §26, 1 Stat. 239.

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 Amer-

ica, v. 1, 1931, p. 7 (hereafter cited as Miller, Treaties). Current legislative authority for postal

agreements is contained in 39 U.S.C. §407. See also 19 Op. Atty. Gen. 513 (1890) in support

of the constitutionality of this practice.

See Crandall, pp. 127–131. A recent example is the World Trade Organization (WTO) Agree-

ment on the Trade-Related Aspects of Intellectual Property Rights, approved by Congress in sec.

101 of Public Law 103–465, 108 Stat. 4809, 4814.

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.

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 Inter-

national 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 Cul-

tural Organization, 60 Stat. 712 (1946); the World Health Organization, 62 Stat. 441 (1948).

See the Tariff Act of 1890, §3, 26 Stat. 612, and of 1897, § 3, 30 Stat. 203; the Reciprocal

Trade Agreements Act of 1934, §350(a), 48 Stat. 943; the Trade Expansion Act of 1962, 19

U.S.C. § 1821; the Trade Act of 1974, 19 U.S.C. §§2111, 2115, 2131(b), 2435; and the Omnibus

Trade and Competitiveness Act of 1988, 19 U.S.C. §2902.

See the Lend-Lease Act of 1941, §3, 55 Stat. 31, and the Arms Export Control Act of 1976,

22 U.S.C. §2751.

by an agreement concluded by the President on his sole constitu-

tional authority.

The succeeding discussion further develops these

points by presenting a review of the practice and case law associ-

ated with each of the three types of executive agreements.

CONGRESSIONAL

EXECUTIVE AGREEMENTS

Congressional authorization for the conclusion of international

agreements dates from the earliest days of the Nation’s constitu-

tional history. Thus, in 1790 Congress empowered the President to

pay off the Revolutionary War debt by borrowing money from for-

eign 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.’’

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.’’

The

authority for the conclusion of postal agreements was continued in

later enactments and formed the basis of numerous postal ‘‘conven-

tions’’ which were never submitted to the Senate.

Over the years,

Congress has authorized or sanctioned additional agreements con-

cerning a wide variety of subjects including, inter alia, the protec-

tion of intellectual property rights,

acquisition of territory,

na-

tional participation in various international organizations,

foreign

trade,

foreign military assistance,

foreign economic assist-

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See the Foreign Assistance Act of 1961, as amended, 22 U.S.C. §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. §2151a;

population planning and health, 22 U.S.C. §2151b; education and human resources develop-

ment, 22 U.S.C. §2151c; and disaster assistance, 22 U.S.C. § 2153.

See Atomic Energy Act of 1954, as amended, 42 U.S.C. §2153.

See Magnuson Fishery Conservation and Management Act of 1976, 16 U.S.C. §§1821, 1822.

See, for example, sec. 202(a) of the Magnuson Fishery Conservation and Management Act

of 1976, 16 U.S.C. §1822(a); secs. 101 and 405 of the Trade Act of 1974, as amended, 19 U.S.C.

§§2111 and 2435; and sec. 405(c) of the International Religious Freedom Act of 1998, 22 U.S.C.

§6445(c).

See the Tariff Act of 1890, §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 arti-

cles] 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 intro-

duction 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), au-

thorizing the President to proclaim duty modifications and reductions pursuant to specified

trade agreements negotiated under the auspices of the World Trade Organization (WTO).

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. §3511, approving agreements resulting

from the GATT Uruguay Round of Multilateral Trade Negotiations.

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 Coopera-

tion and the Commission on Environmental Cooperation established under supplemental agree-

ments 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 sup-

plemental agreements. See also McDougal and Lans, p. 271, Henkin 1996, at pp. 215–216.

See sec. 123 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. §2153(a); sec. 107

of the Trade Act of 1974, as amended, 19 U.S.C. §2117; and sec. 201(c) of the Magnuson Fishery

Conservation and Management Act of 1976, as amended, 16 U.S.C. §1821(c).

See sec. 102(e) of the Trade Act of 1974, 19 U.S.C. §2112(e), and sec. 1103 of the Omnibus

Trade and Competitiveness Act of 1988, 19 U.S.C. §2903.

ance,

atomic energy cooperation,

and international fishery

rights.

The subject matter diversity of congressional-executive agree-

ments is matched by the varying means by which Congress has au-

thorized the conclusion of such agreements. Thus, Congress has en-

acted statutes providing authority in advance for the President to

negotiate with other nations on a particular matter. This authority

may be explicit,

or, in the case of agreements concluded in con-

formity with a generally enunciated congressional policy, implied

from the terms of the enactment.

Legislative authorization for

congressional-executive agreements may also be effected by pas-

sage of a statute following the negotiation of a concluded agree-

ment. Again, congressional approval may be explicit,

or, implied,

as in the case of legislation appropriating funds to carry out par-

ticipation by the United States in an international organization.

In regulating the use of congressional-executive agreements,

Congress has specified in advance the general terms of negotia-

tion

and conditioned the effectiveness of particular agreements

alternatively upon the enactment of implementing legislation,

upon the legislative adoption of an approving concurrent resolution

within a specified time following transmittal of the agreement to

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See Sec. 405(c) of the Trade Act of 1974, 19 U.S.C. §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 enact-

ment of a joint resolution for approval by concurrent resolution; the former complies with con-

stitutionally specified requirements for enacting law, namely bicameral action and Presidential

presentation. 19 U.S.C. §2434(c).

See sec. 123(d) of the Atomic Energy Act of 1954, as amended, 42 U.S.C. §2153(d), and sec.

36 of the Arms Export Control Act of 1976, 22 U.S.C. §2776, subjecting any Presidential ‘‘letter

of offer’’ to sell defense articles or services for $50 million or more, or any major defense equip-

ment 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.

See sec. 203 of the Magnuson Fishery Conservation and Management Act of 1976, 16 U.S.C.

§1823.

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 accept-

ing U.S. adherence to the International Refugee Organization, Congress specified that its ap-

proval ‘‘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).

See sec. 161 of the Trade Act of 1974, 19 U.S.C. §2211.

Sec. 1102 of the Omnibus Trade and Competitiveness Act of 1988, 19 U.S.C. §2902.

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.

26 Stat. 612

Crandall lists ten commercial agreements which were concluded under section 3 of the Tar-

iff 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.

Congress,

or upon the failure of Congress to adopt a disapproving

concurrent

or joint

resolution within designated time periods.

Furthermore, congressional approval of some agreements has been

accompanied by conditions.

The President is presently required

by at least one statute to select Members of Congress from speci-

fied committees to serve as accredited advisers to American delega-

tions attending international conferences, meeting, and negotiating

sessions relating to trade agreements.

Other legislation has re-

quired the President to consult with specified committees before

entering into trade agreements.

The constitutionality of congressional-executive agreements ap-

pears to have been first raised before the Supreme Court in Field

v. Clark.

In Field it was alleged that section 3 of the Tariff Act

of 1890,

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 agree-

ment was in issue, a number of reciprocal trade agreements had

already been concluded pursuant to section 3.

In meeting the ob-

jection that the Act unlawfully delegated Congress’ legislative pow-

ers, 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 ob-

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143 U.S. at 694.

224 U.S. 583 (1912).

Commercial Agreement of May 30, 1898, United States-France, 30 Stat. 1774.

30 Stat. 203.

26 Stat. 827–828.

224 U.S. at 601.

107 F. 2d 819 (C.C.P.A. 1939)

jection 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 Presi-

dent.’’

Twenty years later, in B. Altman & Co. v. United States,

the

Court held that a reciprocal trade agreement between the United

States and France,

concluded pursuant to section 3 of the Tariff

Act of 1897,

was a ‘‘treaty’’ for purposes of section 5 of the Circuit

Court of Appeals Act of 1891

permitting direct appeals to the Su-

preme Court in any case involving the validity or construction of

a ‘‘treaty.’’ Although the Court acknowledged that the trade agree-

ment 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:

[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 Cir-

cuit Court in certain matters of importance, and, among oth-

ers, 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 impor-

tance, 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, §3, was not a

treaty possessing the dignity of one requiring ratification by

the Senate of the United States, it was an international com-

pact, 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 be-

tween 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 Cir-

cuit Court of Appeals Act, and, where its construction is di-

rectly involved, as it is here, there is a right of review by direct

appeal to this court.

Evidencing a similar lack of interpretative rigidity is Louis Wolf

& Co. v. United States

wherein the U.S. Court of Customs and

Patent Appeals held that a United States-Cuba Trade Agreement

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Agreement Respecting Reciprocal Trade, United States-Cuba, Aug. 24, 1934, 49 Stat. 3559.

Sec. 350(a) of the Tariff Act of 1930, 46 Stat. 708, as added by the Reciprocal Trade Agree-

ments Act of 1934, 48 Stat. 943.

Treaty of Friendship, Commerce, and Consular Rights, United States-Norway, June 5, 1928,

47 Stat. 2135.

Treaty of Friendship, Commerce, and Consular Rights, United States-Austria, June 19,

1928, 47 Stat. 1876.

107 F. 2d at 826.

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 Agree-

ments Act of 1934, 48 Stat. 943.

102

169 F. Supp. at 278–280.

of 1934,

which had been effected under section 350(a) of the Tar-

iff Act of 1930,

was a ‘‘commercial convention’’ within the mean-

ing of treaties concluded by the United States with Norway

and

Austria.

The latter two treaties exempted from unconditional

most-favored-nation treatment goods accorded preferential treat-

ment by the United States under a United States-Cuban Commer-

cial 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:

*** We think that by the use of the term ‘‘commercial con-

vention’’ such a trade agreement as the Cuban Trade Agree-

ment 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 Sen-

ate. 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 de-

partment 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.

While the issue concerning the constitutionality of congressional-

executive agreements was either summarily resolved or substan-

tially avoided in Field v. Clark, Altman, and Louis Wolf, a more de-

tailed resolution of this question was evidenced by the U.S. Cus-

toms Court in Star-Kist Foods, Inc. v. United States.

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 re-

lied heavily upon Field v. Clark, Altman, and Louis Wolf.

102

Spe-

cifically 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

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103

Ibid. at 287–288

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.

congressional-executive agreements in the area of foreign trade. Ac-

cording to Judge Mollison:

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 recip-

rocal trade agreements and to make them effective by procla-

mation. The effect of the decision in Field v. Clark, coming

after six of the ten reciprocal trade agreements had been con-

cluded and made effective by proclamation, was an approval of

such trade agreements and the exercise of such Executive au-

thority and practice.

*** It can hardly be doubted that the Congress has the au-

thority, in regulating foreign trade and commerce, to authorize

the President, under prescribed standards and limitations, to

negotiate, conclude, and make effective by proclamation recip-

rocal trade agreements lowering customs duties in return for

concessions granted the United States.

103

On appeal the U.S. Court of Customs and Patent Appeals af-

firmed 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 con-

cluded that the promotion of foreign trade required that the

tariff barriers in this and other countries be modified on a ne-

gotiated 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

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 con-

clude 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 ap-

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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 legisla-

tion for trade agreements concluded during the GATT Uruguay Round of Multilateral Trade Ne-

gotiations. 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’’ con-

taining a provision expressly approving the agreements as well as any statutory provisions ‘‘nec-

essary 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 argu-

ments and discussion may be found in ‘‘Memorandum to Ambassador Michael Kantor, U.S.

Trade Representative, from Walter Dellinger, Assistant Attorney General, Office of Legal Coun-

sel, 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. Inter-

national Agreements, the Senate and the Constitution. Columbia Journal of Transnational Law,

v. 36, 1997, p. 143.

106

Ibid. at 1319–22 (citations omitted). Gibbons v. Ogden, 22 U.S. 1 (1824) recognized the ple-

nary 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. Con-

stitution, Article IV, Section 3, Clause 2). Edwards considered whether the clause, which author-

izes 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.

proved by the [NAFTA] Implementation Act.’’

105

The court con-

cluded that the foreign commerce clause, combined with the nec-

essary and proper clause and the President’s Article II foreign rela-

tions power, was a constitutionally sufficient basis for the NAFTA:

*** [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 ‘nec-

essary and proper’ in regulating foreign commerce. It is impos-

sible 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 for-

eign nations are involved. Given the [Supreme] Court’s lan-

guage 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 relat-

ing 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 com-

merce and has other provisions which are reasonably ‘nec-

essary and proper’ for ‘carrying all others into execution.’ ***

Further, I note that the President, in negotiating the Agree-

ment 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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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. §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 ac-

quire by negotiations with the President of the Philippines, military bases ‘‘he may deem nec-

essary for the protection of the Philippine Islands and of the United States.’’ 22 U.S.C. §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 §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 §106, four more such agreements have been con-

cluded, 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’ inter-

national obligations is required in order to construe the word ‘treaty’ in §106 as meaning only

Article II treaties.’’ Ibid. at 32.

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 Seri-

ous Violations of International Humanitarian Law Committed in the Territory of Rwanda and

Rwandan Citizens Responsible for Genocide and Other Such Violations Committee in the Terri-

tory 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).

The Supreme Court earlier addressed the question of congres-

sional-executive agreements in Weinberger v. Rossi,

107

where it

held that the term ‘‘treaty,’’ as used in a statute prohibiting em-

ployment 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 authoriz-

ing 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 ‘‘trea-

ty’’ in various legislative enactments and the rule of construction

favoring the harmonization of statutory requirements with the Na-

tion’s international obligations.

109

The use of congressional-executive agreements in the extradition

area was recently affirmed in Ntakirutimana v. Reno, which chal-

lenged the constitutionality of the 1995 extradition agreement be-

tween the United States and the International Criminal Tribunal

for Rwanda.

110

The agreement had been entered into as an execu-

tive agreement and implemented pursuant to Section 1342 of Pub-

lic Law 104–106.

111

Petitioner argued that a treaty was constitu-

tionally required for an extradition, but the Federal Circuit Court

of Appeals disagreed, finding that neither the text of the Constitu-

tion, 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 au-

thorization could be found in Public Law 104–106, which, along

with the agreement, created the constitutionally valid ‘‘congres-

sional-executive agreement’’ used in this situation.

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 estab-

lished. Notwithstanding that the text of the Constitution confers no

explicit authority for the making of congressional-executive agree-

ments, such agreements have been authorized frequently by Con-

gress over the years on a wide variety of subjects. Similarly, courts

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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 interchange-

ability 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. Com-

pare, 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, con-

cerning 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.

115

See Crandall, pp. 117–119.

116

In 1953 Secretary of State Dulles estimated that some 10,000 agreements had been con-

cluded under the NATO Treaty. Hearings before a Subcommittee of the Senate Judicial Commit-

tee on S.J. Res. 1 and S.J. Res. 43, 83d Cong., 1st Sess. 1953, p. 877.

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 re-

jection 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 sup-

have been little troubled by theoretical considerations and have

sustained such agreements largely on the basis of the actual prac-

tice 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 ade-

quate constitutional basis for a trade agreement that took this

form.

113

Moreover, it appears to be the majority view of legal schol-

ars that congressional-executive agreements and treaties are whol-

ly 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 discre-

tion rather than by prior congressional authorization.

114

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. Nu-

merous agreements pursuant to treaties have been concluded by

the Executive, particularly of an administrative nature, to imple-

ment in detail generally worded treaty obligations. Early agree-

ments 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 pur-

suant to treaties may be found in the many arrangements and un-

derstandings implementing the North Atlantic Treaty Organization

(NATO) Treaty.

116

Agreements concluded pursuant to existing treaties have occa-

sionally provoked controversy when it has been alleged that par-

ticular agreements either required Senate approval in treaty form

or were otherwise not within the purview of an existing treaty.

117

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porting 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 sta-

tion American forces at Lajes Airbase in the Azores).

118

Henkin, pp. 219–220.

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.

124

354 U.S. at 528–29.

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 charac-

terized as Presidential or sole executive agreements in view of the

reliance upon one of the Executive’s independent powers under Ar-

ticle II of the Constitution.

On the other hand, an alternate legal basis is suggested by Wil-

son v. Girard,

119

where the Supreme Court seemed to find suffi-

cient authorization in the Senate’s consent to the underlying trea-

ty. 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 trea-

ty. The administrative agreement provided that once a NATO Sta-

tus 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 Agree-

ment,

122

the United States and Japan effected a protocol agree-

ment

123

containing provisions at issue in the case at bar. In sus-

taining both the administrative agreement and the protocol agree-

ment, the Court stated that:

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 subse-

quent Protocol embodying the NATO Agreement provisions

governing jurisdiction to try criminal offenses.

124

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

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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, Wil-

liam. 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). Con-

cerning 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 Eu-

ropean 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 De-

stroyers 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 Con-

ference, 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 (re-

marks of Senator Ives). See also Bemis, p. 904. Although there were statements made by Presi-

dent 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 ll, Department of State Bul-

letin, v. 81, February 1981, p. 1.

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 au-

thority. 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 sub-

stantial 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 agree-

ments 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-reach-

ing 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

As previously indicated, legal authority supporting the conclusion

of Presidential agreements may be found in the various foreign af-

fairs powers of the President under Article II of the Constitution.

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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 (here-

after 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.

135

299 U.S. 304 (1936).

136

Ibid. at 320.

137

301 U.S. 324 (1937).

138

Ibid. at 330.

139

315 U.S. 203 (1942).

140

Ibid. at 229, citing Curtiss-Wright, 299 U.S. at 320.

141

453 U.S. 654 (1981).

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 ju-

dicial 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 adjust-

ment of the international boundary by the parties.

133

The court

stated that ‘‘[t]he power to make and enforce such a temporary con-

vention respecting its own territory is a necessary incident to every

national government, and adheres where the executive power is

vested.’’

134

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, ple-

nary, and exclusive power of the President as the sole organ of the

federal government in the field of international relations.’’

136

Al-

though 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:

*** [I]n respect of what was done here, the Executive had

authority to speak as the sole organ of the government. The as-

signment 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, §2), require the ad-

vice and consent of the Senate.

138

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 *** cer-

tainly is a modest implied power of the President who is the ‘sole

organ of the federal government in the field of international rela-

tions.’’’

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

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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 au-

thorized under the 1986 Tax Reform Act.

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.

147

The Supreme Court indicated in the Curtiss-Wright case that the ‘‘[President] alone nego-

tiates. 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.

required by the Hostage Release Agreement of 1981, supra, and,

more directly, by Executive order.

142

In light of Pink, the Court in-

dicated that ‘‘prior cases *** have recognized that the President

does have some measure of power to enter into executive agree-

ments 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

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 pro-

vides that the President shall be ‘‘Commander-in-Chief of the Army

and Navy.’’ Cautious acceptance of the President’s power to con-

clude 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 Ex-

ecutive 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

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 exist-

ence of ancillary authority to make agreements necessary for the

conclusion of treaties. Intermediate stages of negotiations or tem-

porary measures pending conclusion of a treaty may, for example,

be reflected in protocols or modus vivendi.

148

Although there ap-

pear to be no cases explicitly recognizing the treaty clause as au-

thority for sole executive agreements, the Court’s opinion in Bel-

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149

301 U.S. at 330–331.

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 ‘enumer-

ated’ 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.

151

301 U.S. at 330.

mont 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

A fourth power of the President under Article II which is rel-

evant to the conclusion of sole executive agreements lies in his au-

thority to ‘‘receive Ambassadors and other public Ministers’’ (Arti-

cle II, Section 3). To the extent that the receive clause is viewed

as supporting the President’s authority to ‘‘recognize’’ foreign gov-

ernments,

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 inter-

national relations, the Court also seemed to emphasize that the

agreement accorded American ‘‘recognition’’ to the Soviet Union.

Thus, in Belmont the Court stated that:

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 So-

viet Government, and normal diplomatic relations were estab-

lished between that government and the government of the

United States, followed by an exchange of ambassadors ***

The recognition, establishment of diplomatic relations, the as-

signment, and agreements with respect thereto, were all parts

of one transaction, resulting in an international compact be-

tween the two governments. That the negotiations, acceptance

of the assignment and agreements and understandings in re-

spect thereof were within the competence of the President may

not be doubted *** [I]n respect of what was done here, the Ex-

ecutive had authority to speak as the sole organ of [the] gov-

ernment.

151

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 de-

termination 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

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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.

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

States. Henkin 1996, p. 347, n. 54.

158

301 U.S. at 331. See also Pink, 315 U.S. at 230–234.

the powers and responsibilities of the president in the conduct

of foreign affairs *** is to be drastically revised.

152

A fifth source of Presidential power under Article II possibly sup-

porting the conclusion of sole executive agreements is the Presi-

dent’s duty to ‘‘take care that the laws be faithfully executed’’ (Arti-

cle 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 conclu-

sion of agreements in implementation of treaties.

153

Moreover, it

was early opined by Attorney General Wirt in 1822 that the Presi-

dent’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 ap-

pears to have been accepted subsequently by the Supreme Court in

In re Neagle,

155

where it was suggested in dictum that the Presi-

dent’s responsibility under the clause includes the enforcement of

‘‘rights, duties, and obligations growing out of *** our inter-

national 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

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 su-

premacy 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 curtail-

ment or interference on the part of the several states.

158

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159

Whitney v. Robertson, 124 U.S. 190 (1888).

160

1 Wash. Terr. at 294. Elsewhere the court ‘‘presumed’’ that Congress had been ‘‘fully ap-

prised’’ of the situation by the President and noted tacit congressional acquiescence for a long

term of years. Ibid., p. 293.

161

204 F. 2d 655 (4th Cir. 1953), aff’d on other grounds, 348 U.S. 296 (1955).

162

Agricultural Act of 1948, §3, 62 Stat. 1247, 1248–1250.

163

204 F. 2d at 659–660.

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 congres-

sional enactments. Judicial uncertainty was early evidenced in

Watts v. United States, supra, where the Supreme Court of the Ter-

ritory 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:

Such conventions are not treaties within the meaning of the

Constitution, and, as treaties supreme law of the land, conclu-

sive on the court, but they are provisional arrangements, ren-

dered 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 col-

lision between the political and judicial branches of the govern-

ment, both which are in theory inseparably all one, such an ex-

pression 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

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 con-

travened the requirements of the Agricultural Act of 1948.

162

Ac-

cording 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

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164

343 U.S. 579 (1952).

165

Ibid. at 659, quoting Justice Jackson’s concurring opinion in Youngstown, 343 U.S. at 637–

638.

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. §1491.

169

127 F. Supp. at 607.

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. §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. §721.2b(3).

174

Rest. 3d, §115, Reporters’ Note 5.

175

Ibid.

from Justice Jackson’s frequently quoted concurring opinion in

Youngstown Sheet & Tube Co. v. Sawyer:

164

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 pre-

clusive must be scrutinized with caution, for what is at stake

is the equilibrium established by our constitutional system.

165

Similar holdings have occurred in subsequent cases on the au-

thority of Guy Capps. In Seery v. United States,

166

for example, the

U.S. Court of Claims denied enforcement of a Presidential agree-

ment 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:

*** It would indeed be incongruous if the Executive Depart-

ment alone, without even the limited participation by Congress

which is present when a treaty is ratified, could not only nul-

lify the Act of Congress consenting to suit on Constitutional

claims, but, by nullifying that Act of Congress, destroy the con-

stitutional right of a citizen. In United States v. Guy W. Capps

*** the court held that an executive agreement which con-

flicted with an Act of Congress was invalid.

169

Reference may also be made to Swearingen v. United States

170

where a Federal District Court treated the Agreement in Imple-

mentation of Article III of the Panama Canal Treaty of 1977

171

a sole executive agreement, and, as such, void for purposes of con-

ferring an income tax exemption on American employees of the

Panama Canal Commission in derogation of Section 61(a) of the In-

ternal Revenue Code.

172

The rule of the Guy Capps case is also re-

flected in the Department of State’s Circular 175 procedure govern-

ing the making of international agreements,

173

as well as in the

American Law Institute’s current Restatement (Third) of the For-

eign Relations Law of the United States.

174

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:

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176

Ibid.

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.

*** 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 super-

sede a statute, Congress could reenact the statute and thereby

supersede the intervening executive agreement as domestic

law.

176

The precedential effect of the Guy Capps rule may also be some-

what eroded by judicial dicta suggesting that the circuit court’s

opinion in the case was ‘‘neutralized’’ by the Supreme Court’s af-

firmance 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 con-

sider the possibility that the agreement in issue may have effec-

tively received the sanction of the Senate as an agreement pursu-

ant to an existing treaty. It appears, therefore, that the law on this

point may yet be in the course of further development.

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(97)

Prepared by Marjorie Ann Browne, Specialist in International Relations.

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. (here-

after cited as 14 Whiteman).

Vienna Convention, Art. 7.

Circular 175 Procedure, sec. 730.3. Reprinted in Appendix 4 of this volume.

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).

Webb, Richard E. Treaty-Making and the President’s Obligation to Seek the Advice and Con-

sent of the Senate with Special Reference to the Vietnam Peace Negotiations. Ohio State Law

Journal, v. 31, summer 1970, pp. 450–515.

V. NEGOTIATION AND CONCLUSION OF

INTERNATIONAL AGREEMENTS

Treatymaking begins with the negotiation and conclusion or sign-

ing of an agreement and ends with its ratification or acceptance as

binding by the parties and its entry into force. This chapter exam-

ines the first stage, negotiation and conclusion.

A. N

EGOTIATION

The negotiation of a treaty is the process by which the represent-

atives of governments agree on the substance, terms, and wording

of an international agreement. The word ‘‘negotiation’’ has been de-

fined as ‘‘the exchange and discussion of proposals by the rep-

resentatives of the parties concerned with a view to reaching a mu-

tually acceptable agreement.’’

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 rep-

resentatives to international organizations and conferences for pur-

poses of adopting a treaty text within those groups.

U.S. practice

is that a ‘‘full power’’ is not usually issued for conclusion of an

international agreement other than a treaty.

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 Presi-

dential monopoly.’’

Others argue that the Senate’s advice and con-

sent function applies before and during the negotiations as well as

prior to ratification.

Article II, Section 2 of the Constitution provides that the Presi-

dent ‘‘shall have Power, by and with the Advice and Consent of the

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Annotated Constitution, p. 541.

Circular 175 Procedures, Sections 720.2, 721.4, and 723.1e. The text of Circular 175 proce-

dures is contained in Appendix 4 of this volume. See also discussion in Chapter X.

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 na-

tions.’’

Finally, Article II, Section 1, provides: ‘‘The executive

power shall be vested in a President ***.’’

The President or his representative begins the process of negotia-

tions by inviting representatives of another nation, or responding

to another country’s invitation, to discuss proposals for an agree-

ment. The President nominates and, with Senate advice and con-

sent, appoints a person, usually an ambassador, minister, or for-

eign 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 instruc-

tions 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 congres-

sional leaders and committees as an objective. The procedures pro-

vide 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.

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 partici-

pate. These include proposing a subject for a treaty to the Presi-

dent, advising and consenting on the appointment of an ambas-

sador 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 dis-

putes with the United States. The Logan Act was enacted into posi-

tive 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

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18 U.S.C. 953. June 25, 1948, c.645, 62 Stat. 744. Originally enacted on January 30, 1799

as 1 Stat. 613.

Seitzenger, Michael. The Logan Act. Congressional Research Service Report No. 78–212 A.

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.).

Debate on S. 2377, Congressional Record, June 18, 1980, p. S7371 (daily ed.).

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.

The law was enacted after a private citizen, Dr. George Logan,

traveled to France and attempted to end the plundering of Amer-

ican merchant ships authorized by the French director of the revo-

lutionary government. Although there have been no known pros-

ecutions 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 au-

thority interferes in the foreign relations of the United States.’’

Questions concerning the Logan Act were raised concerning ac-

tivities 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.

After the journey of former Attorney General Ramsey Clark to

Iran in connection with the Americans held hostage there, the Sen-

ate passed an amendment supporting ‘‘the enforcement of any ap-

plicable statutes not excluding the Logan Act or any other Act that

may be violated in the course of private negotiating initiatives.’’

However, action was not completed on the Department of Justice

authorization bill to which the amendment was attached.

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 Sec-

retary 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 unauthor-

ized persons from intervening in disputes between the United

States and foreign governments. Nothing in Section 953, how-

ever, 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

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100

Digest of United States Practice in International Law 1975, p. 750.

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.

Congressional Record, January 30, 1978, p. 767 (daily ed.).

Congressional Record, v. 126, part 8, May 6, 1980, pp. 10112–10113.

Vienna Convention. Article 8.

Senators McGovern and Sparkman the executive branch, al-

though 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 coun-

try.

Senator McGovern’s report of his discussions with Cuban of-

ficials stated: ‘‘I made it clear that I had no authority to nego-

tiate on behalf of the United States—that I had come to listen

and learn ***’’ Senator Sparkman’s contacts with Cuban offi-

cials 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 para-

graph 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.

The Logan Act raises constitutional issues as well, especially re-

garding freedom of speech and the right to travel.

Some Members of Congress have made efforts to repeal the

Logan Act. Senator Edward Kennedy attempted to delete the meas-

ure 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.

Representative Anthony Beilenson introduced H.R. 7269 to repeal

the Act on May 6, 1980, stating that there were fundamental con-

stitutional 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 trea-

son.’’

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 after-

ward confirmed by the state.

B. I

NITIATIVE FOR AN

GREEMENT

; S

ETTING

BJECTIVES

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 reso-

lutions and in binding legislation.

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101

S. Res. 239, 80th Cong., 2d Sess.

S. Exec. Rept. 8, 81st Cong., 1st Sess.

S. Res. 264, 85th Cong., 2d Sess.

Public Law 86–565.

S. Res. 172 and S. Res. 186, 90th Cong.

One of the best known examples of a congressional proposal is

the Vandenberg Resolution that ultimately led to negotiations cul-

minating in the North Atlantic Treaty. Adopted by the Senate on

June 11, 1948, it expressed the sense of the Senate ‘‘that this Gov-

ernment, by Constitutional processes, should particularly pursue’’

certain objectives including:

*** Progressive development of regional and other collective

arrangements for individual and collective self-defense in ac-

cordance with the purposes, principles, and provisions of the

Charter.

*** Association of the United States, by constitutional proc-

ess, 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.

The Senate Foreign Relations Committee which had, in close co-

operation with the Department of State, worked out the resolution,

later reported: ‘‘Pursuant to this advice the President in July au-

thorized the Secretary of State to enter into exploratory conversa-

tions on the security of the North Atlantic area. ***’’

The North

Atlantic Treaty was signed on April 4, 1949, and received the ad-

vice and consent of the Senate.

The Monroney Resolution suggesting the International Develop-

ment 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 estab-

lishment of an international development association as a soft-loan

affiliate of the World Bank.

The articles of agreement for this

international financial institution were negotiated and submitted to

Congress with a request for legislation to authorize U.S. participa-

tion. Congress authorized the participation on June 30, 1960.

The Seabed Arms Control Treaty, prohibiting the emplacement of

nuclear weapons on the seabed and ocean floor, was in part a con-

gressional initiative. Senator Claiborne Pell introduced resolutions

in 1967 expressing the Senate’s concern for reasonable rules gov-

erning the extraterritorial marine environment, and the need to ne-

gotiate a treaty to prohibit stationing nuclear weapons on the sea-

bed.

The treaty was signed in 1971, and the Senate approved it,

by a vote of 83–0 on February 15, 1972.

Similarly, Congress helped initiate the Environmental Modifica-

tion Convention. In July 1972, the U.S. Government renounced the

use of climate modification techniques for hostile purposes, and be-

ginning in 1972 both the House and Senate held hearings on a res-

olution to prohibit the use of any environmental or geophysical

modification activity as a weapon of war. Senate Resolution 71, in-

troduced 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 Pro-

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102

Sec. 510, Public Law 95–105.

S. Rept. 94–39.

Secs. 102, 103, 104, and 106 of the Trade Act of 1974, Public Law 93–618, approved Janu-

ary 3, 1975.

Public Law 93–189.

Sec. 381(a) of Public Law 97–35, approved August 13, 1981.

hibition of Military or Other Hostile Use of Environmental Modi-

fication 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 ini-

tiative toward the creation of an international system of nationally

held grain reserves which provides for supply assurance to consum-

ers and income security to producers.’’

On May 25, 1983, S. Res.

95 expressed the sense of the Senate that the President should ini-

tiate negotiations on a new long-term agreement on agricultural

trade with the Soviet Union.

On occasion the resolutions proposing negotiations have con-

tained a reporting request or requirement. S. Res. 95 mentioned

above stated the sense of the Senate that the President should re-

port 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.

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.

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 revi-

sions 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.

Section 39 of the same Act stated the sense of

Congress that the United States should participate in efforts to al-

leviate world food shortages and that ‘‘To this end, the President

shall—’’ among other things request member nations of the Gen-

eral 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.

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 Eco-

nomic Cooperation and Development on arrangements involving of-

ficial export financing including an assessment of the progress and

the prospects for a successful conclusion.

The Comprehensive Anti-Apartheid Act of 1986, passed over the

veto of President Reagan, called for negotiations to reach inter-

national cooperative agreements with the other industrialized de-

mocracies on measures to bring about the complete dismantling of

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103

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.

Foreign Relations Authorization Act, Fiscal Years 1990 and 1991, Public Law 101–246, ap-

proved February 16, 1990; Foreign Relations Authorization Act, Fiscal Years 1992 and 1993,

Public Law 102–138, approved October 28, 1991.

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.

This section is based in part on The Senate Role in Foreign Affairs Appointments. U.S. Con-

gress. Senate. Committee on Foreign Relations. Committee Print. 97th Cong., 2d Sess. Revised

July 1982. 119 pp.

Constitution, Article II, Section 2, Clause 2.

apartheid, and a report from the President within 180 days de-

scribing efforts to negotiate multilateral measures.

The measure

also provided that agreements submitted to Congress under the

provision should enter into force only if the President notified Con-

gress 30 days in advance and Congress enacted a joint resolution

of approval within 30 days under expedited procedures.

President Bush objected to some directives concerning negotia-

tion of agreements in signing both Foreign Relations Authorization

Acts enacted during his administration.

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.’’

Although President Bush

stated that he would construe the measure as expressing the sense

of the Congress but not imposing a binding legal obligation, rep-

resentatives of the commission have been regularly included in del-

egations to meetings of what is now the Organization on Security

and Cooperation in Europe.

C. A

DVICE AND

ONSENT ON

PPOINTMENTS

Most treaties and international agreements are negotiated by

ambassadors or foreign service officers already assigned to particu-

lar countries or functions.

Nevertheless, the Senate sometimes has an exclusive opportunity

to advise on treaty negotiations at the outset, through the constitu-

tional requirement that it advise and consent to appointments of

‘‘ambassadors, other public ministers and consuls.’’

The requirement for Senate confirmation appears to have been a

basic part of the plan to divide the foreign relations powers be-

tween Congress and the President, with a special role for the Sen-

ate in the making of treaties. The Constitution divides the power

relating to making treaties and appointing ambassadors in essen-

tially 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 ambas-

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104

Jones, J. Mervyn. Full Powers and Ratification, A Study in the Development of Treaty-

Making Procedure. Cambridge University Press, 1946, pp. 1–20.

Madison’s notes, p. 13.

Farrand, Max. The Records of the Federal Convention of 1787. New Haven, Yale University

Press, vol. II, p. 395.

U.S. Congress. Senate. Executive Journal, vol. I, 1792, p. 115.

sador 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 par-

ticipate 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 res-

ervations, 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 rath-

er than obligatory.

The Framers of the Constitution took into account the link be-

tween 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.’’

An-

other 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 Rep-

resentatives would agree to confirm what he might agree to under

these instructions.

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 illus-

trate, on January 11, 1792, President Washington nominated Wil-

liam Carmichael, the charge

d’affaires at Madrid, and William

Short, then charge

d’affaires at Paris, to be commissioners pleni-

potentiary for negotiating a treaty with Spain concerning the navi-

gation 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 com-

merce, 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 in-

structions, 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 instruc-

tions.’’

The practice of submitting the instructions for negotiations along

with the nominations did not continue long. In the case of the nom-

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105

U.S. Congress. Senate. Executive Journal, vol. II, 1809, p. 113.

Hayden, Joseph Ralston. The Senate and Treaties, 1789–1817. New York, Macmillan, 1920,

p. 70.

U.S. Senate. Committee on Foreign Relations. Hearing on Nomination of Paul H. Nitze,

March 24, 1982, 16 pp.

U.S. Senate. Committee on Foreign Relations. Nomination of Sol. M. Linowitz. Exec. Rept.

96–26, 38 pp.

Holt, W. Stull. Treaties Defeated by the Senate. Gloucester, Mass., Peter Smith, 1964, p.

145.

ination 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 pro-

vided envoy is to be charged.’’

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.’’

In recent years the Senate or the Senate Foreign Relations Com-

mittee has on occasion used nominations as a vehicle for discussion

of treaty negotiations. When Paul H. Nitze was nominated as am-

bassador 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 ambas-

sador.

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 rep-

resentative of the President to the West Bank and Gaza Strip Au-

tonomy Negotiations, the committee hearing covered problems re-

lating to the Middle East and Mr. Linowitz’s status as a ‘‘special

Government employee’’ receiving no compensation.

UNCONFIRMED PRESIDENTIAL AGENTS

A continuing problem has been the appointment or use of per-

sons not confirmed by the Senate to negotiate international agree-

ments. 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 Presi-

dent. Similarly, the Assistant to the President for National Secu-

rity Affairs, also called the National Security Adviser, is not con-

firmed by the Senate, but on occasion conducts negotiations.

The subject has been controversial through most of American his-

tory. 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 con-

ducting negotiations for the United States since 1789, 438 had been

appointed without Senate confirmation and only 35 had been con-

firmed.

One authority has attributed the initiation of the practice of ap-

pointing special, unconfirmed agents for negotiation of specific trea-

ties 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

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106

Wright, Quincy. The Control of Foreign Relations. New York, Macmillan, 1922. pp. 328–331.

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 re-

ported 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.

Wriston, Henry Merritt. Executive Agents in American Foreign Relations. Gloucester,

Mass., Peter Smith, 1967, p. 197.

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.

Public Law 92–352.

Public Law 96–465, as amended; Sec. 302(a)(2)(B).

See Chapter II.

Cheever, Daniel S. and H. Field Haviland. American Foreign Policy and the Separation of

Powers. Cambridge, Harvard University Press, 1952. p. 49.

Ghent until he had resigned his position as Secretary of the Treas-

ury.

Recent Presidents have also decided not to submit some appoint-

ments 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 un-

favorably reported by the Foreign Relations Committee.

Presidents have sometimes conferred the ‘‘personal rank’’ of am-

bassador on persons appointed without Senate approval in order

for the person to have equal diplomatic standing with representa-

tives 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.

Congress has taken action to curb the practice of according per-

sons the title of ambassador without the advice and consent of the

Senate.

In 1972, Congress incorporated into law a limitation that

the President could confer the personal rank of ambassador or min-

ister 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.

The Foreign Service Act of 1980 also requires the

President, except in urgent circumstances, 30 days prior to the con-

ferral of the personal rank to submit a written report to the For-

eign Relations Committee justifying the appointment.

D. C

ONSULTATIONS

URING THE

EGOTIATIONS

The earliest practice under the Constitution indicates that origi-

nally 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,

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 ad-

vice prior to the signing of the Oregon Treaty of 1846, as well as

for its consent afterward, it was a rare practice.

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

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107

Cheever and Haviland, p. 48.

U.S. Congress. Senate. Committee on Foreign Relations. S. Exec. Rept. 8, 81st Cong., 1st

Sess. Report on North Atlantic Treaty, p. 6.

Sec. 603, Public Law 95–424, approved October 6, 1978.

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.

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.

The consultations can take many forms and can be initiated ei-

ther by the Senate or the executive branch. The Senate Foreign Re-

lations Committee or other committees may hold consultative meet-

ings 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 prob-

lems in the negotiations.

Sometimes the consultation is effective in the sense that congres-

sional 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 partici-

pate in an Advisory Committee on Postwar Foreign Policy that did

much of the initial planning for the United Nations. By 1944 a bi-

partisan committee of eight Members was meeting weekly for this

purpose. In the case of the North Atlantic Treaty the Senate For-

eign Relations Committee was consulted frequently during the ne-

gotiations and suggested specific language in the text.

On occasion Congress has passed legislation requesting or requir-

ing provision of information about negotiations. The International

Development and Food Assistance Act of 1978 required the Sec-

retary of State to keep the Senate Foreign Relations and House

Foreign Affairs and the Appropriations Committees ‘‘fully and cur-

rently informed of any negotiations with any foreign government

with respect to any cancellation, renegotiations, rescheduling, com-

promise, 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 re-

lief no less than 30 days prior to its entry into force.

At other times legislation has required consultations on the nego-

tiations. Since 1981, the International Financial Institutions Act

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108

Sec. 1201 of International Financial Institutions Act, Public Law 95–118, approved October

3, 1977.

Sec. 102(c) of the Trade Act of 1974, Public Law 93–618, approved January 3, 1975.

Sec. 102(d) of the Trade Act of 1974.

Public Law 100–418, approved August 23, 1988.

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 Con-

gress and Deep Seabed Mining Legislation, especially pp. 124–126. See also, last section in this

chapter, infra.

has required the administration to consult with 16 specified Mem-

bers 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. con-

tributions to the multilateral development banks.

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 com-

mittee of Congress having jurisdiction over legislation involving

subject matters affected by the agreement.

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.

The Omnibus Trade and Competitiveness Act of 1988

revised ‘‘fast-track’’ or expedited procedures for implementing trade

legislation and required increased consultation with Congress.

Another category of Senate or congressional action might be con-

sidered ‘‘consultation’’: action critical of executive branch positions

taken during or just after negotiations, with clear notice or the im-

plication 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 de-

bate on these legislative proposals on December 14, 1979, several

Senators identified the problems they found with the treaty provi-

sions being negotiated and specifically characterized their state-

ments as ‘‘instructions’’ to the executive branch, to be considered as

‘‘advice’’ under the Constitution’s ‘‘advice and consent’’ clause relat-

ing 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 trans-

mitted the convention and agreement to the Senate (Treaty Doc.

103–39) where they remain, pending since 1994.

The Senate thus

expressed its views, and some in Congress, even many years after-

ward and with treaty amendments adopted, viewed the treaty as

flawed.

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 dis-

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109

U.S. Congress. Senate. Committee on Foreign Relations. Legislative Activities Report ** *,

101st Congress, January 3, 1989–October 28, 1990. Washington, U.S. Government Printing Of-

fice, 1991. pp. 96–97 (102d Cong., 1st Sess. S. Rept. 102–30)

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)

approval of a just adopted and signed treaty led to the negotiation

and adoption of a completely new treaty. Congress, by joint resolu-

tion, stated that the signed convention did not ‘‘guarantee the pro-

tection’’ of the Antarctic marine environment and ‘‘could actually

stimulate *** commercial exploitation.’’ Congress urged the execu-

tive branch to negotiate protocols or agreements that would provide

‘‘comprehensive environmental protection of Antarctica’’ and close

the region to ‘‘commercial minerals development *** for an indefi-

nite period.’’ The resolution also stated that the President should

not send the convention to the Senate before the environmental

agreements were in force.

On October 7, 1992, the Senate ap-

proved the Protocol on Environmental Protection to the Antarctic

Treaty which had been signed a year earlier and sent to the Sen-

ate.

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 ex-

pressed 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 after-

ward. They worried that ICC actions could infringe on or diminish

the rights of American citizens under the first and fourth amend-

ments 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 ratifi-

cation of U.S. treaties on mutual legal assistance in criminal mat-

ters 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 mem-

bers 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 Under-

wood as delegates to the Conference on the Limitation of Arma-

ments in 1921 and 1922 which resulted in four treaties, and Presi-

dent Hoover appointed two Senators to the London Naval Arms

Limitation Conference in 1930.

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110

Henkin, Louis. Foreign Affairs and the Constitution. Mineola, N.Y. Foundation Press, 1972,

p. 132.

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 rep-

resentatives, published in the Federal Register in accordance with Article III(c)(5) of the guide-

lines (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.

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 Vanden-

berg and Representatives Sol Bloom and Charles A. Eaton.

There has been some controversy over active Members of Con-

gress 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 Na-

tions General Assembly, Members have participated in delegations

without resigning, and many observers consider it ‘‘now common

practice and no longer challenged.’’

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 con-

tend that membership on a negotiating delegation constitutes hold-

ing an office while others contend that because of its temporary na-

ture 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 con-

flict 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.

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

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111

Congressional Yellow Book, Winter 2000, pp. 10–11. (Published by Leadership Directories,

Inc., New York and Washington, D.C.)

Conference (WARC) of the International Radio Consultative Com-

mittee (CCIR) of the International Telecommunications Union.

In the early 1990s, Congress took initiatives to assure congres-

sional observers. The Senate and House each designated an ob-

server 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 Con-

vention Observer Group. As of late 2000, at least two ongoing

groups of Senate observers existed:

1. Senate National Security Working Group.—This is a bipar-

tisan group of Senators who ‘‘act as official observers to nego-

tiations *** on the reduction or limitation of nuclear weapons,

conventional weapons or weapons of mass destruction; the re-

duction, limitation, or control of missile defenses; or related ex-

port controls.’’

2. Senate Observer Group on U.N. Climate Change Negotia-

tions.—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] periodi-

cally to the Senate ***.’’

E. C

ONCLUSION OR

IGNING

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 nego-

tiators have agreed on the terms of the agreement. Like the nego-

tiation, 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 signato-

ries of treaties. Among those signing the U.N. Charter for the

United States were Senators Tom Connally and Arthur H. Vanden-

berg and Representatives Sol Bloom and Charles A. Eaton. Sen-

ators Alexander Wiley and John Sparkman signed the Peace Trea-

ty with Japan on September 8, 1951, and Senators Arthur Vanden-

berg 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 con-

sent to be bound if this is its intention. Under U.S. practice this

would be the case only with executive agreements; treaties are re-

quired to go through the ratification process to be binding. Occa-

sionally, one government may intend signing of an international

agreement to indicate consent to be bound while another signs sub-

ject 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 rep-

resentative signed the agreement subject to ratification by the

Cortes Generale, the Spanish Parliament, while the U.S. represent-

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112

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.

See also discussion in Chapter VII, Resubmission of the Treaty or Submission of Protocol.

U.S. Congress. Senate. Committee on Foreign Relations. Legislative Activities Report, 95th

Cong., S. Rept. 96–47, p. 21.

Ibid., pp. 4–6.

ative signed the document as an executive agreement that did not

require ratification.

F. R

ENEGOTIATION OF A

REATY

OLLOWING

ENATE

CTION

One view is that the Senate, in effect, participates in the negotia-

tion 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 cen-

tury, Senator Henry Cabot Lodge took the position that the Sen-

ate’s consideration of a treaty should be viewed as a stage in the

negotiation, and that a Senate amendment to a treaty is a propo-

sition ‘‘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 for-

eign government by formulating them in the shape of amend-

ments, 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.

Renegotiation of a treaty after Senate consideration is not fre-

quent, 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.

To illustrate, after hearings by various congressional committees

on the Panama Canal treaties signed by President Carter and Gen-

eral Torrijos on September 7, 1977, President Carter and General

Torrijos met on October 14, 1977, and issued a statement of under-

standing clarifying U.S. rights under the Neutrality Treaty. A

number of congressional delegations, including separate ones head-

ed by Senators Robert Byrd, the Majority Leader of the Senate,

Howard Baker, the Minority Leader, and John Sparkman, chair-

man of the Foreign Relations Committee, visited Panama and dis-

cussed 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.

As a second illustration, in 1978 the Senate added a reservation

before approving a tax convention with the United Kingdom. An-

other reservation had been withdrawn after the Treasury Depart-

ment assured the sponsor that a protocol would be negotiated to

take care of the issue.

In 1979 a protocol to the tax convention

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113

U.S. Congress. Senate. Committee on Foreign Relations. Legislative Activities Report, 96th

Cong., S. Rept. 97–29, pp. 7–10.

dealing with the concerns in both reservations was submitted to

and approved by the Senate.

G. I

NTERIM

ETWEEN

IGNING AND

NTRY

NTO

ORCE

;

ROVISIONAL

PPLICATION

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 num-

ber 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 fu-

ture course of action. In the United States, this includes those peri-

ods (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 de-

posit 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 any-

thing that would defeat the purpose of the treaty. The Vienna Con-

vention 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 con-

stituting the agreement subject to ratification, acceptance or

approval, until it shall have made its intention clear not to be-

come a party to the agreement; or (b) it has expressed its con-

sent 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 pend-

ing 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 ter-

minated 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

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114

Rest. 3d, §312.

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.]

Ibid.

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.

S. Exec. Rept. 96–49, pp. 26–27.

14 Whiteman, p. 92.

permanently. It ‘‘must normally rest on the President’s own con-

stitutional authority.’’

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 pro-

visionally, ‘‘so long as the obligations undertaken are all within the

competence of the President under U.S. law.’’

The primary factor

for determining the appropriateness of provisional application, in

the State Department view, ‘‘relates to the immediate need to set-

tle quickly matters in the interest of the United States which are

within the President’s domestic law competence.’’

An example of a treaty pending in the Senate that has been pro-

visionally applied by executive agreement is the maritime bound-

ary agreement between the United States and Cuba, signed Decem-

ber 16, 1977. Originally, an executive agreement, by exchange of

notes on April 27, 1977, had established a modus vivendi on a pro-

visional maritime boundary to serve during that year while nego-

tiations 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.’’

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 appli-

cation was subsequently extended for additional periods, most re-

cently by an exchange of notes of December 30, 1997 and March

30, 1998.

The Senate Foreign Relations Committee raised questions con-

cerning 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 agree-

ments, 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.

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 provi-

sional 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.

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115

U.S. Congress. Senate. Committee on the Judiciary. Joint Resolution with Respect to Nu-

clear Arms Reductions. Report on S.J. Res. 212. Committee Print. September 1982, 97th Cong.,

2d Sess., p. 9.

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 Lim-

itation 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 Sen-

ate action on it was indefinitely postponed after the Soviet invasion

of Afghanistan. The administration adopted the policy, as ex-

pressed by President Reagan on May 31, 1982, that ‘‘As for existing

strategic arms agreements, we will refrain from actions which un-

dercut 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 Sub-

committee on Separation of Powers of the Senate Judiciary Com-

mittee 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 trans-

form 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.

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 agree-

ment 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 Sea-

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116

bed Authority, the international organization set up by the conven-

tion/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.

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(117)

Prepared by Stanley Bach, Senior Specialist in the Legislative Process and David M. Acker-

man, 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’’).

Public Law 92–403, as amended. 1 U.S.C. 112b. See Appendix 2.

See S. Res. 536 and S. Rept. 95–1171, 95th Cong.

See discussion in Chapter X.

VI. SENATE CONSIDERATION OF TREATIES

The Constitution, in Article II, Section 2, Clause 2, provides that

the President ‘‘shall have Power, by and with the Advice and Con-

sent of the Senate, to make Treaties, provided two-thirds of the

Senators present concur.’’ It is the President who negotiates and ul-

timately ratifies treaties for the United States, but only if the Sen-

ate in the intervening period gives its advice and consent. This

chapter concerns the practices and procedures that the Senate fol-

lows 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. delega-

tions. In addition, pursuant to the Case-Zablocki Act

and the con-

sultation procedures to which the State Department agreed in

1978,

the Senate and the executive branch have taken steps to-

ward increased notification to and consultation with the Senate

with respect to executive branch negotiation and execution of inter-

national agreements and treaties.

What Presidents generally seek

from Senators, however, is not advice in advance but consent after

the fact—after negotiations have been completed. Most treaties en-

gage the Senate only after their formal transmission by the Presi-

dent for approval. Nevertheless, the Senate often provides a meas-

ure of after-the-fact ‘‘advice’’ along with its ‘‘consent.’’

Contrary to past characterizations of the Senate as the ‘‘grave-

yard of treaties,’’ the overwhelming majority of treaties receive fa-

vorable Senate action within a reasonable period of time. Few trea-

ties languish indefinitely or are returned to the President without

approval, and even fewer are defeated outright by vote of the Sen-

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118

See Appendix 7, Simultaneous Consideration of Treaties and Amending Protocols: Selected

Precedents.

The Senate’s standing rules were revised and renumbered in 1980, which can lead to difficul-

ties when references are made to earlier publications. In addition, S. Res. 28, adopted on Feb-

ruary 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

ate. Likewise, most treaties survive the process of advice and con-

sent without material change, although the Senate in recent years

has expanded its use of conditions that are attached to its resolu-

tions of ratification. In most cases, the process of Senate consider-

ation 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, dur-

ing which numerous amendments and conditions may be proposed.

A. S

ENATE

ECEIPT AND

EFERRAL

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 trea-

ty 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 trea-

ty’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 offi-

cial title and text of the treaty (the original in the case of a bilat-

eral 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 Submit-

tal 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, an-

nexes, or other documents that the President submits to the Senate

to be considered as integral parts of the proposed treaty (as distin-

guished from documents submitted for information purposes only).

They are referred to collectively as the treaty and its official pa-

pers. 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 Sen-

ate 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.

SENATE RULE XXX

Senate Rule XXX governs the process of treaty consideration in

the Senate. As revised on February 27, 1986, Rule XXX states

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119

the full procedures of Rule XXX rarely were invoked, they were followed during Senate consider-

ation 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.

Paragraph 3 of Rule XXIX provides that ‘‘All confidential communications made by the Presi-

dent 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.’’

EXECUTIVE SESSION

—

PROCEEDINGS ON TREATIES

1. (a) When a treaty shall be laid before the Senate for ratifi-

cation, 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 in-

junction of secrecy.

(b) When a treaty is reported from a committee with or with-

out amendment, it shall, unless the Senate unanimously other-

wise 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 re-

move the injunction of secrecy from the treaty.

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 other-

wise, at which stage no amendment to the treaty shall be re-

ceived unless by unanimous consent; but the resolution of rati-

fication 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 ratifi-

cation 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 post-

pone 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 com-

mencement of the next Congress as if no proceedings had pre-

viously 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 re-

quest for unanimous consent to remove the injunction of secrecy re-

ferred to in Senate Rules XXIX and XXX.

(This injunction origi-

nated during the days when Senate executive sessions were con-

ducted in secret. Treaties today are normally made public when

signed or even earlier.) Ordinarily, the Senate routinely agrees to

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120

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.

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.).

Riddick, Floyd M. and Alan S. Frumin, Riddick’s Senate Procedure. Sen. Doc. 101–28, 1992,

p. 1300.

Information may be found online at http://www.access.gpo.gov/congress/doccat.html.

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 pro-

vided 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.

Since Senate consideration of treaties is a matter of executive

business, the Senate must be in executive session

in order to re-

move 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.

The request of the Majority Leader is typically in the following

form:

I ask unanimous consent that the injunction of secrecy be re-

moved from the Third Protocol to the 1975 Tax Convention

with the United Kingdom of Great Britain and Northern Ire-

land, as amended, signed at London on March 15, 1979 (Execu-

tive 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 Re-

lations and ordered to be printed, and that the President’s

message be printed in the R

ECORD

The PRESIDING OFFICER. Without objection, it is so or-

dered.

Following the first reading and removal of the injunction of se-

crecy at the initiative of the Majority Leader, the Presiding Officer

refers the treaty to the Committee on Foreign Relations, in accord-

ance with Senate Rule XXV on the jurisdiction of standing commit-

tees. 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.

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

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121

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.’’

Ex. Y, 96–1, 96th Cong., 1st Sess. (June 25, 1979), ordered returned to the President with-

out the Senate’s approval by S. Res. 267, 106th Cong., 2d Sess. (2000).

Military Implications of the Treaty of the Limitation of Strategic Offensive Arms and Proto-

col Thereto (SALT II Treaty). Hearings before the Committee on Armed Services, U.S. Senate.

96th Cong., 1st Sess., Four Parts, July–October 1979.

U.S. Congress. Senate Committee on Armed Services. Report No. 96–1054, Military Implica-

tions 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.

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.

which treaties were submitted in that Congress, for example, Trea-

ty Doc. 97–1 or 106–13. Before the 97th Congress in 1981, a letter

designation was used rather than consecutive numbering (for ex-

ample, Executive Q in the example quoted above). Treaties that

were transmitted before that time and that, for one reason or an-

other, 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.

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 for-

mal recommendations to the Senate regarding the treaties.

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,

commonly

known as SALT II, for example, the Committee on Armed Services

held extensive hearings on the military implications of the treaty,

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 Com-

mittee even took a vote on the SALT II Treaty and prepared an ex-

tensive report in opposition to Senate approval.

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 Stra-

tegic Offensive Arms (START), and the Open Skies Treaty, the

Armed Services and Intelligence Committees reported their find-

ings to the Senate Foreign Relations Committee during that com-

mittee’s consideration of the treaties, and the other committees’

recommendations were included in the reports of the Committee on

Foreign Relations.

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 Rela-

tions Committee reported that treaty to the Senate. Similarly, the

Armed Services Committee received testimony on several occasions

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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 Cal-

endar, 105th Cong., S. Prt. 105–92, pp. 67–68.

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.

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.

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 com-

mittees to participate in its hearings relating to treaties, such as

the SALT II Treaty, of obvious interest to such committees.

B. F

OREIGN

ELATIONS

OMMITTEE

ONSIDERATION

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 sub-

mitted 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.

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 pub-

lic hearing on each treaty as soon as possible after its submis-

sion by the President. Except in extraordinary circumstances,

treaties reported to the Senate shall be accompanied by a writ-

ten report.

The decision to hold hearings or take other action on particular

treaties ordinarily is made by the committee chairman, in consulta-

tion with the ranking minority member. The chairman’s decisions

in this regard are influenced to an important degree by the pref-

erences 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 for-

mal 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.

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123

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 proc-

ess can be extensive, involving many witnesses and days of ques-

tioning 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 de-

cides on the timing for committee markup of treaties, which nor-

mally comes soon after the completion of hearings. The predomi-

nant tendency is for the committee to recommend Senate advice

and consent without numerous conditions, and the committee usu-

ally votes on treaties without extended debate or discussion. In the

case of a controversial treaty, however, or when it is clear that par-

ticular problems must be resolved to assure Senate approval, the

chairman may initiate proposals for conditions or other specific lan-

guage to address those problems. The types of conditions available

are discussed in the following section. Whether or not the commit-

tee does decide to recommend Senate conditions, when it reports

out the treaty the committee also proposes a ‘‘resolution of ratifica-

tion,’’ 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 trans-

mission, after allowing sufficient time for public notice and com-

ment. 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 se-

rious 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 com-

mittee. Groups of similar treaties frequently have been considered

en bloc, both in committee and on the Senate floor, thereby facili-

tating 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. Fur-

thermore, unless the President is clearly in support of ratification

(and a successor President may not always support all treaties sub-

mitted 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 commit-

tee 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

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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 com-

mittee have been Claiborne Pell of Rhode Island (100th–103d Congresses) and Jesse Helms of

North Carolina (104th–106th Congresses).

See American Law Institute, Restatement (Third) of the Foreign Relations Law of the

United States. American Law Institute Publishers, 1987, Vol. I, §314, pp. 186–189. During Sen-

ate 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 re-

port 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.

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 Commit-

tee 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 ratifi-

cation; by that time the committee had reported the convention fa-

vorably five times. In 1996 the committee reported the Chemical

Weapons Convention that had been referred to it in 1993. The Sen-

ate 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 Con-

gress. 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 ad-

vice 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.

C. C

ONDITIONAL

PPROVAL

The Foreign Relations Committee may recommend that the Sen-

ate approve treaties conditionally, granting its advice and consent

only subject to certain stipulations that the President must accept

before proceeding to ratification.

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.

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 with-

out 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

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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 fol-

lows:

‘‘[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.

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 En-

vironmental 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 state-

ments in its resolutions of ratification as well as in its reports on treaties containing ‘‘no-res-

ervations’’ 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.

an international obligation under a treaty, he is expected to trans-

mit it to the other party or parties. The result may be further nego-

tiations 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.

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 rep-

resent significant trade-offs and compromises, such conditions nor-

mally 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 ex-

tended delay, although that prospect is not always easy to evaluate

during Senate committee or floor deliberations.

In the case of large, multilateral agreements, amendments sel-

dom are realistic; the difficulties in reconvening negotiations mean

that significant amendments are normally taken by the other par-

ties 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 con-

cern 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 exer-

cising its constitutional duty to give advice and consent to a treaty,

and the committee has asserted that its approval of a treaty con-

taining such a provision should not be construed as a precedent.

In the case of bilateral treaties, there is little substantive dif-

ference 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 agree-

ment and that are deemed to be consistent with the obligations im-

posed by the agreement. The actual effect of any particular pro-

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126

In the case of the 1976 Treaty of Friendship and Cooperation with Spain, the State Depart-

ment 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 Depart-

ment 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.

See, for example, the resolution of ratification on the ‘‘Inter-American Convention on Serv-

ing Criminal Sentences Abroad,’’ 146 Congressional Record, October 18, 2000, p. S10658 (daily

ed.).

Treaty Doc. 100–20. See 136 Congressional Record, October 27, 1990, p. S17492 (daily ed.).

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.

posed 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 in-

volved to be an important modification, and therefore a reservation,

particularly if it concerns an aspect of the agreement that is con-

sidered fundamental. If that is the conclusion of another party to

a treaty, the mere characterization of a condition as an under-

standing rather than a reservation will do little to change that con-

clusion. True understandings are commonly used in the ratification

of both multilateral and bilateral treaties as a means of clarifica-

tion 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 lim-

iting any of its provisions. The President has on occasion inter-

preted such declarations as falling outside of the formal provisions

to be incorporated in the instruments used in the ratification proc-

ess,

and the Senate itself has at times so directed.

As a con-

sequence, such statements are often placed in a separate section of

the Senate’s resolution of ratification. The term ‘‘declaration’’ some-

times is used interchangeably with the term ‘‘proviso.’’

Provisos often include conditions relating to the process of imple-

menting 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 Treat-

ment 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.

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.

The committee included a number of declarations, under-

standings, and reservations in the resolution of ratification it rec-

ommended to the Senate. But, concerned that the traditional labels

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U.S. Congress. Senate. Committee on Foreign Relations. SALT II Treaty. S. Exec. Rept. 96–

14, November 19, 1979.

Id., at 29–32 (exchange of letters between the committee and the Secretary of State).

left some ambiguity regarding the legal effect of the proposed con-

ditions, it grouped them into the following three categories:

(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.

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 ratifi-

cation; and

(3) the executive branch would follow a procedure for secur-

ing 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 se-

curing explicit Soviet agreement in the ‘‘Protocol of Exchange

of Instruments of Ratification’’ that is signed by both parties.

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 Ratifica-

tion 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 re-

garding 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 ac-

companying documents, describe in full the obligation under-

taken 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 ac-

corded formal notice of the Senate’s conditions. Notification by

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U.S. Congress. Senate. Committee on Foreign Relations. Genocide Convention. S. Exec.

Rept. 99–2, July 18, 1985. p. 15.

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.).

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 testi-

monies 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.

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).

any method other than inclusion in the instrument of ratifica-

tion simply increases the possibility of misunderstanding.

More recently, the committee has adopted the practice of specify-

ing which conditions are to be included in the instrument of ratifi-

cation and which should not be included. It also has specified that

particular declarations in its resolutions of ratification are binding

on the President.

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 Initia-

tive’’ (SDI) to develop new means, including mobile- and space-

based means, of protecting the United States against missile at-

tack. 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 offen-

sive missile complex) and from developing, testing, or deploying

‘‘ABM systems which are sea-based, air-based, space-based, or mo-

bile land-based.’’ The administration responded that a broader in-

terpretation 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 par-

ties 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.

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 Sen-

ate, at the initiative of Senators Nunn and Levin, sought and

gained access to the negotiating record of the ABM Treaty.

The

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Joint Hearings on the ABM Treaty and the Constitution Before the Senate Committee on

Foreign Relations and the Senate Committee on the Judiciary (1987).

S. Res. 167, 100th Cong., 1st Sess. (1987), the ‘‘ABM Treaty Interpretation Resolution,’’ and

S. Rept. 100–164, 100th Cong., 1st Sess. (1987).

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 Sen-

ate 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 dur-

ing 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.

Id., p. 97. See also the discussion of the Byrd-Biden condition in Chapter VIII.

The Senate approved the modified Byrd-Biden condition by a vote of 72–27 and the resolu-

tion of ratification by a vote of 93–5. 134 Congressional Record 12655 (May 26, 1988) and 12849

(May 27, 1988), respectively.

Foreign Relations Committee and the Judiciary Committee held ex-

tensive hearings

; and Senator Biden submitted, and the Foreign

Relations Committee reported, a resolution to constrain the admin-

istration’s ability to reinterpret the ABM Treaty.

These actions served as precursors to a condition regarding trea-

ty interpretation that was added in 1988 to the resolution of ratifi-

cation on the INF Treaty.

That condition articulated what it said

were the constitutional principles that would govern the future in-

terpretation of the treaty. The Foreign Relations Committee ex-

plained:

Both domestic and international law give primacy in treaty

interpretation to the text of the treaty. International law re-

quires that a treaty be interpreted in accordance with the ordi-

nary meaning to be given the treaty’s terms in light of their

context and in light of the treaty’s object and purpose. Domes-

tic 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 understand-

ing of the text will be reflected in the Executive’s formal pres-

entation 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.

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,

became the first condition to the

INF Treaty and stated as follows:

Provided that the Senate’s advice and consent to ratification

of the INF Treaty is subject to the condition, based on the trea-

ty clauses of the Constitution, that:

(1) the United States shall interpret the Treaty in ac-

cordance 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 representa-

tives to the Senate and its Committees, in seeking

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134 Congressional Record 12849 (May 27, 1988).

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.

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.

Office of Legal Counsel, Department of Justice, ‘‘Validity of Congressional-Executive Agree-

ments That Substantially Modify the United States’ Obligations Under an Existing Treaty’’ (No-

vember 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 under-

standing 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 Sen-

ate affirmed ‘‘the applicability to all treaties of the constitutionally-based principles’’ in this con-

dition. 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 Sen-

ate 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 sup-

Senate consent to ratification, insofar as such rep-

resentations 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 in-

terpretation different from that common understanding ex-

cept pursuant to Senate advice and consent to a subse-

quent 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 ac-

cordance with paragraph (2), that provision shall be inter-

preted in accordance with applicable United States law.

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.

In the following decade, the Senate incorporated the Byrd-Biden

condition to the INF Treaty by reference in its resolutions of ratifi-

cation 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.

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.

The Senate added another dimension to the Byrd-Biden condition

when it gave its advice and consent to the Flank Document Agree-

ment 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.

The Senate insisted on its prerogatives, however, and

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131

ports the proposition that the President may be authorized to accept changes in treaty obliga-

tions either by further Senate advice and consent or by statutory enactment.

143 Congressional Record, May 14, 1997, p. S4477 (daily ed.).

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:

(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 legis-

lative approval for modifications or amendments to treaties

through majority approval of both Houses.

Subsequent to that dispute, the Senate has included the Byrd-

Biden condition, as modified, as a declaration not only in its resolu-

tions of ratification on arms control agreements but also those on

every other treaty it has considered, regardless of its subject mat-

ter. The condition now is commonly worded as follows:

DECLARATION.—The Senate’s advice and consent is sub-

ject 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 reso-

lutions 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 ratifi-

cation on the Genocide Convention in 1986. In subsequent Con-

gresses 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 rati-

fication to be signed by the President.’’ Sometimes the proviso in-

cludes 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 Rela-

tions Committee approved the condition for the first time, 9–8, as

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132

S. Exec. Rept. 99–2, 99th Cong., 1st Sess. (July 18, 1985), at 4.

Reid v. Covert, 354 U.S. 1 (1957).

S. Exec. Rept. 99–2, supra, at 20.

Id. at 21.

Id. at 28–31.

one of several conditions proposed by Senators Helms and Lugar to

the Genocide Convention.

The committee’s report explained that

the condition, at that time in the form of a reservation to the con-

vention, was desirable as a matter of prudence because of ambigu-

ities 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

; but, it said, inter-

national law did not allow ‘‘internal law’’ to justify a failure to per-

form the obligations imposed by a treaty. Thus, the committee stat-

ed, ‘‘[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.’’

Two am-

biguities 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 ap-

plied to the substance of the legislation as well. Second, the com-

mittee 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:

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 be-

lieves that prudence, as well as due regard for the obligations

imposed by international law, recommends the reservation.

Eight Senators filed ‘‘additional views’’ criticizing the inclusion of

this reservation, however.

First, they asserted, ‘‘36 years of de-

tailed legal analysis’’ of the convention had produced no ‘‘credible

contention’’ that it was, or could be, in conflict with the Constitu-

tion. 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 na-

ture 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:

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 Geno-

cide 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.

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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.

See S. Exec. Repts. 101–9, 101–10, 101–11, 101–12,101–13, and 101–8, respectively, all re-

ported 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 use-

fulness 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 meth-

ods did not comport with our constitutional requirements; that a decade of experience under sev-

eral 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 incon-

clusive. Senator Helms also asserted that without the reservation the MLATS would allow for-

eign 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.’’

135 Congressional Record 25633 and 25637 (October 24, 1989).

Treaty Doc. 101–4 (May 20, 1989).

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 su-

premacy condition as a reservation in the resolutions of ratification

on six mutual legal assistance treaties.

The committee majority

and Senator Helms articulated their conflicting views on the merits

of the condition in the committee’s reports on the treaties.

But on

the floor the Senate agreed to a compromise. The compromise de-

leted the words ‘‘as interpreted by the United States’’ and provided

that the condition would be included in the instruments of ratifica-

tion on each treaty as an understanding rather than as a reserva-

tion. 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 resolu-

tions of ratification on the six treaties by votes of 99–0.

In the following month, the Foreign Relations Committee re-

ported, and the Senate approved, a resolution of ratification on the

United Nations Convention Against Illicit Traffic in Narcotic Drugs

and Psychotropic Substances.

One article of the convention obli-

gated the parties to provide mutual legal assistance with respect

to certain narcotics offenses. Senator Helms, as a consequence, pro-

posed 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

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134

S. Exec. Rept. 101–15 (Nov. 14, 1989), pp. 10–11 and 115.

135 Congressional Record 31383 (Nov. 21, 1989).

Tr. Doc. 100–20, 100th Cong., 2d Sess. (May 23, 1988).

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 as-

serted that the inclusion of the condition in the instruments of ratification on the Genocide Con-

vention 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.’’

136 Congressional Record 36196 and 36198 (October 27, 1990).

Ex. E, 95–2, 95th Cong., 2d Sess. (Feb. 23, 1978).

be included in the instruments of ratification on the convention.

The committee adopted his proposal, along with two other under-

standings

; and the Senate approved the resolution of ratification

on November 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.

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 mem-

bers vigorously protested their exclusion from the committee’s de-

liberations.

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:

The President of the United States shall not deposit the in-

strument 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 legisla-

tion, or other action, by the United States of America prohib-

ited 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 no-

tice 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 ex-

pressed objections to the proviso, the Senate approved the package

of conditions and the convention by division votes.

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 Polit-

ical Rights,

Senator Helms proposed that the constitutional su-

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135

Id. at 5.

138 Congressional Record 8071 (April 2, 1992).

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), re-

spectively. 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 Baha-

mas, 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.

138 Congressional Record 17964–65 (July 2, 1992).

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 mat-

ter 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 confu-

sion 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.

140 Congressional Record, June 24, 1994, p. S7634 (daily ed.).

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.

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.

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

Continued

premacy condition be included as a proviso to the resolution of rati-

fication and that it state that it ‘‘shall not be included in the in-

strument of ratification to be deposited by the President.’’ The com-

mittee adopted the proposal by voice vote and explained the proviso

in its report as follows:

The substantive language of the proviso reflects the Admin-

istration’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 ratifi-

cation. This approach eliminates the potential for confusion at

the international level about the nature of the U.S. ratifica-

tion.

The proviso elicited no comment in the brief Senate floor debate,

and the Senate approved the resolution of ratification on the cov-

enant by division vote on 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

;

and the Senate, without comment on the proviso, approved the res-

olutions.

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

; and the Senate, on June 24,

1994, again concurred.

In the 104th Congress, the Senate in-

cluded the proviso in its resolutions of ratification on six additional

MLATs

and also extended its use by applying it to seven resolu-

tions relating to extradition treaties.

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 com-

ments on, or objections to, the proviso.

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136

(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 Congres-

sional 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 coun-

tries 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.’’

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.).

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.

D. R

ESOLUTION OF

ATIFICATION

When the committee reports a treaty to the Senate, it does so

with a proposed resolution of ratification. Proposed conditions usu-

ally are incorporated as provisions of this resolution. By contrast,

any amendments to the text of the treaty, which seldom are pro-

posed, are reported as freestanding proposals for the Senate to con-

sider. 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 sub-

sequently 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 there-

in), 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. S

ENATE

LOOR

ROCEDURE

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, un-

less the Senate agrees by unanimous consent to waive this require-

ment. 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

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137

Confirmed in unpublished committee transcripts.

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.

takes precedence over most other motions; it is neither amendable

nor debatable, but it may be the subject of a roll call vote. How-

ever, the most common procedure in recent years is for the Major-

ity Leader to obtain in advance a unanimous consent agreement

providing for the Senate to begin consideration of a treaty in execu-

tive 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 re-

ported from committee. The Senate would agree to a motion that

provided only that the Senate go into executive session. Once in ex-

ecutive session, the Senate was required to take up the first item

on the Executive Calendar, whether it was a treaty or a nomina-

tion, unless it decided otherwise by unanimous consent or by mo-

tion. The motion to take up a treaty out of its order on the Execu-

tive 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 Com-

mittee in 1977 but then were recalled, in part so as not to be

placed on the Executive Calendar ahead of the controversial Pan-

ama Canal Treaties.

In the following year, the Senate rejected an

effort to reverse the order in which the Senate would consider the

two Canal Treaties themselves.

Since that time, however, the Senate has established the prece-

dent 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 en-

ables the Senate to agree to a motion, most likely made by the Ma-

jority 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, how-

ever, 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 di-

rectly 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 resolu-

tion of ratification. The procedure followed may resemble the fol-

lowing:

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138

Riddick, Floyd M. and Alan S. Frumin. Riddick’s Senate Procedure. Sen. Doc. 101–28, 1992.

pp. 1557–1558.

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 con-

cluded, 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 prop-

erly 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 arelll;

the nays arelll. Two-thirds of the Senators present (a

quorum being present) having voted in the affirmative, the res-

olution of ratification is agreed to.

On this vote the yeas arelll; the nays arelll. 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 (dis-

approval) to the resolution of ratification.

The PRESIDING OFFICER. Without objection, it is so or-

dered.

CONTROVERSIAL TREATIES

The opponents of a treaty may object to setting aside the proce-

dures of Rule XXX by unanimous consent and proceeding directly

to consideration of the resolution of ratification. In 1978, for exam-

ple, 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 un-

less there is unanimous consent to modify them or set them aside.

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139

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 rec-

ommendations to the body in the same way that a standing committee would.

Rule XXX was amended as part of S. Res. 28, 99th Cong., 2d Sess., February 27, 1986.

Riddick, Floyd M. and Alan S. Frumin, Riddick’s Senate Procedure. Sen. Doc. 101–28, 1992.

pp. 278, 280.

Congressional Record, March 29, 1988, p. S3204 (daily ed.).

Congressional Record, May 18, 1988, p. S6084 (daily ed.).

Before 1986 these procedures were more complicated than they are

today because Rule XXX then required that the Senate first con-

sider treaties on the floor ‘‘as in Committee of the Whole.’’

1986, soon after approval of the Genocide Convention, Rule XXX

was amended to eliminate this requirement.

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 unani-

mous consent. The text of the treaty itself then is open to amend-

ment, although the first hours or days of consideration may be de-

voted to speeches only, either by informal arrangement or by a for-

mal unanimous consent agreement. If the Foreign Relations Com-

mittee has recommended any amendments to the treaty, they are

the first amendments to be considered, and each committee amend-

ment 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 sec-

ond. 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 mo-

tion and a second, and the question is not debatable. Once the Sen-

ate 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.’’

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.

The INF Treaty is an example of a treaty considered under the

Rule XXX procedures since the rule was amended in 1986. In con-

sidering 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 Sen-

ator that the reading of them be resumed. Later, further reading

was dispensed with.

The Senate then voted on and tabled (re-

jected) an amendment to the treaty itself that was offered by Sen-

ator Steve Symms; other proposed amendments to the treaty were

tabled or withdrawn. After the Senate proceeded to the consider-

ation of the resolution of ratification, it adopted various amend-

ments to the resolution as proposed by the Foreign Relations Com-

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140

mittee, and then agreed to the resolution, as amended, by the re-

quired two-thirds majority.

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 resolu-

tion 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 condi-

tion 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 reso-

lution of ratification on the same day it completes debate on the

treaty itself and disposes of any amendments to it, unless the Sen-

ate by unanimous consent determines otherwise. The resolution is

prepared by the Executive Clerk and, when presented to the Sen-

ate, includes any amendments to the text of the treaty that the

Senate has adopted as well as the texts of any conditions rec-

ommended 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 proto-

cols to the 1980 Conventional Weapons Convention with 1 reserva-

tion, 9 understandings, and 13 conditions. In July 2000, it reported

the Inter-American Convention on Sea Turtles with three under-

standings, five declarations, and two provisos.

The conditions recommended by the Committee on Foreign Rela-

tions 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 pro-

pose their own conditions, which are also debatable and amend-

able.

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 sub-

stitute can propose that the Senate withhold its advice and con-

sent. 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 sub-

stitute, it would have nullified the proposed amendments to the

treaty to which the Senate already had agreed.

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141

At any time that the resolution of ratification is before the Sen-

ate, a motion to recommit the resolution to committee may be of-

fered. 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 Sen-

ate 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, re-

quires a vote of at least two-thirds of the Senators present and vot-

ing.

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 debat-

able 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 cho-

sen 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 res-

olution.

If cloture is invoked, there is then a total of 30 additional hours

permitted for consideration of the treaty and the resolution of rati-

fication, 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 legisla-

tive 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 gov-

erning amendments is in effect, and no Senator may call up more

than two amendments until every other Senator has had an oppor-

tunity 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 fili-

buster 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

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Treaty Docs. 102–20 and 102–32. Congressional Record, September 26, 1992, p. S15336 and

September 29, 1992, p. S15504 (daily ed.).

Congressional Record, May 27, 1988, p. S12785 (daily ed.).

See the account of this incident in Carl Marcy, A Note on Treaty Ratification. American

Political Science Review 47:4, December 1953, p. 1130.

Congressional Record, October 18, 2000, pp. S10658–S10667 (daily ed.).

the Senate adopted on September 29 by a vote of 87–6, putting the

treaty under the 30-hour limitation for post-cloture consideration.

In some cases, filing cloture motions appears to have expedited

Senate consideration of treaties even though cloture was not in-

voked on them. After a week of debate on the INF Treaty, for ex-

ample, 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 con-

sent to set a schedule of votes on pending amendments and to viti-

ate the cloture motion.

FINAL VOTE

The final vote on agreeing to the resolution of ratification re-

quires a two-thirds majority of those present and voting for ap-

proval. 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 indefi-

nitely, 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 Sen-

ate frequently conducts final treaty votes by roll call at times con-

venient for most Senators, although it sometimes acts on non-

controversial 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.

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 Sen-

ators 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 Oc-

tober 18, 2000, for instance, the Senate approved 33 treaties on di-

verse subjects by division votes.

When time pressures are severe and the treaties to be considered

are non-controversial, the Senate may agree, by unanimous con-

sent, 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 Con-

gress, 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:

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143

Congressional Record, October 21, 1998, pp. S12972–S12973 (daily ed.).

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.

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 or-

dered.

Mr. DE WINE. Mr. President, I further ask unanimous con-

sent 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 amend-

ments that are at the desk to treaty documents 105–34 and

104–40 be considered as agreed to, that any statements be in-

serted 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 Sen-

ate’s action, and following the disposition of the treaties, the

Senate return to legislative session.

The PRESIDING OFFICER. Without objection, it is so or-

dered.

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 sig-

nature. 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.

FAILURE TO RECEIVE TWO

THIRDS MAJORITY

If a treaty fails to receive the two-thirds vote necessary for Sen-

ate 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 re-

jected treaty to the President, however, that treaty is returned to

the Senate’s Executive Calendar. Then, in accordance with para-

graph 2 of Rule XXX, it automatically is referred back to the For-

eign 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,

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144

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), Docu-

ment No. 97–30, 97th Cong., 2d Sess., p. 11.

A summary of Senate action on this issue appears in Comment, Laws and Contemporary

Problems 46:2, p. 19.

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.).

the Versailles Peace Treaty of 1919 being the most significant of

these.

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 com-

mittee’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 re-

quired two-thirds majority, but then were returned to the Foreign

Relations Committee, leaving open the possibility that the commit-

tee and the Senate could vote on them again. In some cases, no fur-

ther action has been taken. The Optional Dispute Settlement Pro-

tocol 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 com-

mittee and placed on its calendar. (Ex. N, 86–1), where it remained

for more than 40 years.

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 nec-

essary 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 favor-

ably 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.

In at least one instance, the Senate has approved a treaty after

rejecting it and then agreeing to a motion to reconsider that deci-

sion. By a vote of 49–32, the Senate rejected a tax convention with

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145

Ex. K, 94–2; Ex. Q, 94–2; Ex. J, 95–1.

The vehicle for returning these treaties was an executive resolution. Now, however, regular

Senate resolutions are employed for this purpose.

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.

Treaty Doc. 102–2, submitted March 19, 1991.

Congressional Record, March 9, 2000, pp. S1423–S1424 (daily ed.).

Id., October 12, 2000, p. S10499 (daily ed.).

A Presidential message asking for the return of a treaty is transmitted by the Senate Par-

liamentarian to the Executive Clerk, who delivers it to the Foreign Relations Committee.

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.

F. R

ETURN OR

ITHDRAWAL

More often than being disapproved by Senate vote, treaties lack-

ing adequate support simply are not reported by the Foreign Rela-

tions Committee or, if reported, are never voted on by the Senate.

These treaties may remain pending on the calendar of the commit-

tee or they may be returned to the President.

The normal practice for returning treaties has been for the com-

mittee to report out, and for the Senate to adopt, a Senate resolu-

tion 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.

In 1991, the Senate adopted a resolution to

return 1979 and 1983 Amendments to the 1966 International Con-

vention on Load Lines.

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 Conven-

tion, which replaced the earlier amendments.

Most recently, the

Foreign Relations Committee reported S. Res. 267 on March 9,

2000, proposing that the Secretary of the Senate be directed to re-

turn 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.

On October 12,

2000, after deleting one treaty from the list, the Senate approved

the resolution.

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.

The President does not

have the formal authority to withdraw a treaty from Senate consid-

eration 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 un-

willingness to ratify it, regardless of whatever action the Senate

might take. The decision to return one or more treaties usually re-

flects 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 ac-

tion 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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(147)

Prepared by Raphael F. Perl, Specialist in International Affairs.

In some instances the Senate has also rejected a treaty. See Collier, E., U.S. Senate Rejec-

tion of Treaties, a Brief Survey of Past Instances. March 30, 1987, Congressional Research Serv-

ice Report 87–305F. The Comprehensive Nuclear Test-Ban Treaty is the most recent example.

Senate Treaty Doc. 105–28.

See Whiteman, M., Digest of International Law, Washington, D.C., U.S. Government Print-

ing Office, 1970, v. 14, p. 61 and Crandall, Treaties, Their Making and Enforcement, pp. 98–

101. (2d ed. 1916).

Presidential withdrawal of a treaty while that treaty is under consideration by the Senate

is discussed in Chapter VI.

cf. Whiteman, M., Digest of International Law, v. 14, pp. 45–48.

Ibid., p. 50.

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).

VII. PRESIDENTIAL OPTIONS ON TREATIES

AFTER SENATE ACTION

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.

He may rat-

ify the treaty; resubmit the treaty for further consideration at a

later date; or simply decide not to ratify the treaty.

If he resub-

mits 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 negotia-

tions. 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.

This chapter discusses the options available to the President

when a treaty is returned to him together with the Senate’s resolu-

tion 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. R

ATIFICATION

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.

There is no legal obligation for a nation to rat-

ify a treaty signed on its behalf.

A nation generally confirms its willingness to be bound in a for-

mal document. Such documents are generally referred to as instru-

ments of ratification. However, when the treaty so provides, they

may take the form of instruments of acceptance, instruments of ap-

proval, or instruments of accession.

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148

Treaty of Amity, Commerce, and Navigation. (Jay Treaty with Great Britain) signed Novem-

ber 19, 1794. TS105; 12 Bevans 13. Ratification advised by the Senate with amendment, June

24, 1795.

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.

Whiteman, Digest of International Law, v. 14, p. 62.

Article 2 of the Vienna Convention defines ‘‘ratification,’’ ‘‘acceptance,’’ ‘‘approval,’’ and ‘‘ac-

cession’’ as ‘‘international acts whereby a state establishes on the international plane its consent

to be bound by a treaty.’’

Whiteman, Digest of International Law, v. 14, p. 62.

In the case of a bilateral executive agreement between the United States and another coun-

try, the law of the other country might require ratification there even though U.S. procedure

might not include ratification in such a case.

Whiteman, Digest of International Law, v. 14, pp. 46–47.

The President may also include in the instrument a statement or understanding which re-

flects 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 re-

flect that the Senate attached a particular meaning to the treaty.

A treaty may specifically provide that it is to be ratified by the

President by and with the advice and consent of the Senate.

How-

ever, 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 proce-

dures.’’

The more neutral language is usually used to indicate

that a treaty is not binding.

Ratification itself is a national act.

In order for a nation to be

bound internationally, treaties generally require international ac-

tion such as the exchange or deposit of instruments of ratifica-

tion.

It is this international exchange or deposit of instruments

of ratification which is ordinarily associated with the entry into

force of a treaty.

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.

As ratification is a national process, it is determined by domestic

procedures and requirements that differ between nations. For ex-

ample, one state’s law may require approval by the national legis-

lature as a step in the ratification process while another’s may

not.

In U.S. practice, after the Senate gives its advice and con-

sent 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.

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.

The instrument will include a recitation of any res-

ervations by the Senate, and may also include understandings or

declarations contained in the Senate’s resolution of advice and con-

sent. 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

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149

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.

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.

Panama Canal Treaty Between the United States of America and Panama, signed at Wash-

ington, September 7, 1977, TIAS 10030, Article II, Sec. 1. The treaty terminated by its terms

December 31, 1999.

Articles 82–84.

Article II, Sec. 1.

to domestic affairs. The instrument of ratification is normally pre-

pared 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.

Once prepared, the instrument of ratification, in duplicate, is

sent to the President for signature. The President signs both dupli-

cates 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 in-

strument of ratification is ready for international exchange or de-

posit.

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 Presi-

dent 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 in-

volves 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 ratifica-

tion at a specified location. Exchange or deposit, therefore, has

been characterized as ‘‘the key to entry into force.’’

In the case of the Chemical Weapons Convention (CWC), for ex-

ample, the Senate’s resolution of advice and consent required the

President to issue a certification before the U.S. instrument of rati-

fication could be deposited.

The Panama Canal Treaty

and the Vienna Convention on the

Law of Treaties

are illustrative of requirements for expressing

consent to be bound to bilateral and multilateral treaties, respec-

tively. The Panama Canal Treaty provided that:

This Treaty shall be subject to ratification in accordance

with the constitutional procedures of the two Parties. The in-

struments of ratification of this Treaty shall be exchanged at

Panama ***

Similarly, the Vienna Convention on the Law of Treaties reads:

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150

Vienna Convention, Article 84.

1 U.S.C. §112(a). Slip or pamphlet treaty texts are published in the Treaties and Other

International Acts Series (TIAS). See 1 U.S.C. §113. See also Chapter X and section, Guide to

Resources on Treaties, in the annotated bibliography contained in Appendix 1.

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.

The proclamation of a treaty is a national act by which the text of a ratified treaty is pub-

licized. 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 proclama-

tion 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.

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.

For example, the U.S.-U.K. Supplementary Treaty to the Extradition Treaty of June 8,

1972, with annex. TIAS 12050.

1. The present Convention shall enter into force on the thir-

tieth day following the date of deposit of the thirty-fifth instru-

ment 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 ratifica-

tion or accession.

When the necessary exchange or deposit of instruments of ratifi-

cation of a treaty has been completed and the treaty has entered

into force, the treaty text is prepared for publication by the Depart-

ment of State in United States Treaties and Other International

Acts Series,

and registration for publication with the U.N. Sec-

retariat pursuant to Article 102 of the U.N. Charter.

The United

States no longer has a practice of proclaiming treaties unless spe-

cific circumstances require proclamation.

B. R

ESUBMISSION OF THE

REATY OR

UBMISSION OF

ROTOCOL

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 supple-

mental agreement setting out amendments. The option of resubmit-

ting 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 trea-

ty, to wait for more favorable circumstances and resubmit the trea-

ty.

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 unaccept-

able to him or to the other party to the agreement.

Generally, renegotiation of a treaty will be achieved by negotia-

tion of a protocol or supplement to the original agreement.

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 cir-

cumstances, the executive branch usually attempts to negotiate a

protocol or supplement to the treaty which eliminates objections

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151

Whiteman, Digest of International Law, v. 14, p. 58.

Senate Treaty Doc. 103–39, p. v.

Ibid.

Whiteman, Digest of International Law, v. 14, p. 58.

Senate Treaty Doc. 105–25, S. Exec. Rept. 106–24.

raised or clarifies provisions questioned by the Senate.

Any such

instrument is then submitted to the Senate for consideration to-

gether 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 re-

gime. An Agreement Relating to the Implementation of Part XI of

the United Nations Convention on the Law of the Sea was trans-

mitted 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.’’

The agreement itself deals principally with the re-

negotiated 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 Conven-

tion by *** the United States.’’

However, in instances where a clarification is sought, the execu-

tive 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 nec-

essary.

Another variant is presented by the 1974 Threshold Test Ban

and 1976 Peaceful Nuclear Explosion Treaties. It was not until pro-

tocols 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 instru-

ments on October 18, 2000.

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 in-

stances may occur when restrictive provisions added in order to ob-

tain 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 Jan-

uary 22, 1875, granted advice and consent to this agreement with

amendments which were not fully accepted by the Turkish Govern-

ment, and the treaty was not ratified by the President. Fourteen

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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.

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 Con-

stitution, 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.

Whiteman, Digest of International Law, v. 14, p. 50.

21 U.S.T. 2517, TIAS 6997, 330 UNTS 38.

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 ap-

proved 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.

See Crandall, Treaties, Their Making and Enforcement. pp. 97–99.

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

years later, the Turkish Government decided to accept the agree-

ment as amended, but because of the passage of time, President

Cleveland again gave the Senate the opportunity to act. The Sen-

ate, 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 agree-

ment was then submitted to the Senate and subsequently rati-

fied.

C. I

NACTION OR

EFUSAL TO

ATIFY

U.S. law does not impose any legal obligation on the President

to ratify a treaty after the Senate has given its advice and con-

sent.

It is also generally conceded that international law does not re-

quire a state to ratify a treaty until it chooses to become a party

to the treaty by the means specified in the treaty.

The President

therefore, is free to ratify, or not to ratify a treaty as he sees fit.

As ratification requires an affirmative act on the part of a Presi-

dent, 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 inac-

tion is usually temporary, as was the case with ratification of the

1958 United Nations Convention on the Recognition and Enforce-

ment of Foreign Arbitral Awards.

The Senate granted its advice

and consent to ratification of this convention in 1968, but imple-

menting legislation (Public Law 91–360) was not approved until

July 1970. The President then ratified the convention in September

1970.

Numerous historical examples of Presidential non-ratification

have been cited by scholarly sources.

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.

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153

list, however, does not distinguish treaties unratified because Senate reservations were unac-

ceptable to the President, from those not ratified because reservations were unacceptable to

other parties.

U.S. Department of State Bulletin, vol. 32, p. 822 (1955).

See Henkin, Foreign Affairs and the Constitution (1972), p. 394 n. 71.

113 Congressional Record 8332 (1967).

S. Exec. Rept. 92–6, 92d Cong., 1st Sess. (1971).

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 consider-

ation, see Nash (Leich), Cumulative Digest of United States Practice in International Law 1981–

1988, pp. 1228–1239.

Whiteman, Digest of International Law, v. 14, p. 137.

Ibid. Cf. also Vienna Convention on the Law of Treaties, Article 2(1)(d).

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 dis-

satisfaction will be expressed at earlier stages of the treaty’s con-

sideration, and as Presidents and their policies may differ, one

President may be reluctant to ratify a treaty signed under a pre-

vious administration.

For example, the Eisenhower Administration took the formal po-

sition 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.’’

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.

Eisenhower’s policy was reversed by the Kennedy Ad-

ministration which sent to the Senate human rights conventions on

slavery, forced labor, and political rights of women,

and by the

Nixon Administration which renewed the earlier request for Senate

advice and consent to the Genocide Convention.

Another more recent example, albeit involving administration op-

position to ratification prior to a formal vote by the full Senate, is

found in the Vienna Convention on the Law of Treaties. The For-

eign Relations Committee ordered reported out a resolution of ad-

vice 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 negotia-

tions 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.

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.’’

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.

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

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154

Henkin, Foreign Affairs and the Constitution (1972), p. 379. However, in the case of multi-

lateral treaties this is generally not the practice followed. See discussion which follows.

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 re-

produced in the American Journal of International Law, v. 60 (1966) p. 563.

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.

Letter of March 1, 1966, American Journal of International Law, v. 60 (1966), p. 563.

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 sug-

gested 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 docu-

ment. 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.

must submit the new reservation to the Senate for its advice and

consent prior to his ratification of the treaty.

As a practical matter, however, reservations to multilateral trea-

ties 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 develop-

ment 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 De-

partment 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.

The rationale for such State Department action has been charac-

terized by some sources as apparently being based on a doctrine of

implied or tacit consent by the Senate to such reservations,

and

a Department of State letter on this issue

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 ma-

jority approval by the other nations—a process to which the Senate

had originally given its advice and consent.

States may also issue clarifications or explanations which do not

substantively modify a treaty. Such statements may be titled ‘‘dec-

laration,’’ ‘‘understanding,’’ or any other descriptive term a party

desires. However, whether in fact a particular statement is a res-

ervation or merely a non-substantive addition to an agreement is

determined by its content and not by its title. This distinction be-

tween reservations and other non-substantive conditions is impor-

tant because non-substantive understandings, declarations, and

statements made by other states after Senate advice and consent

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155

Such statements may be regarded as nothing more than a clarifying statement. See White-

man, Digest of International Law, v. 14, p. 188.

See Digest of United States Practice in International Law, 1978, pp. 729–731. The U.S. Sen-

ate adopted a resolution of advice and consent to the treaty with amendments, reservations and

understandings earlier on March 16, 1978.

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.

Letter of June 14, 1979, from Assistant Secretary of State for Congressional Relations Doug-

las J. Bennett, Jr., text partially reproduced in Digest of United States Practice in International

Law, 1978, p. 730.

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.

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 Rati-

fication Process, 98th Cong., 1st Sess., June 23, 1983.

to ratification of a treaty are considered by the Department of

State not to require new advice and consent.

The issue of whether or not a particular statement was indeed

a non-substantive statement, not a reservation, was raised in re-

gard to a communique issued by the Foreign Ministry of Panama

on April 25, 1978.

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 Pan-

amanian interpretation either rejected or repudiated ‘‘key’’ Senate

changes.

The response from the White House was that the com-

munique 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 amend-

ments, conditions, reservations, and understandings which the Sen-

ate 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.

The White House position was, therefore, that because the Pan-

amanian communique did not constitute a reservation in the opin-

ion of the executive branch, the President was not required to sub-

mit 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 Sen-

ate for its advice and consent.

The issue of whether or not certain statements of the Panama-

nian Government were reservations or not was again raised in

hearings before the Senate Judiciary Committee’s Subcommittee on

Separation of Powers in June 1983.

In the words of committee

witness Dr. Charles H. Breecher:

[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

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156

Ibid., pp. 4–5.

Ibid., pp. 102–103.

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-res-

ervation 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 per-

manently *** the right to use independently *** without Pan-

amanian consent, or even against Panamanian opposition,

military force in Panama to keep the Canal open and operat-

ing. Since the United States has not accepted this Panamanian

so-called understanding, there are no treaties in international

law.

As part of his response to these assertions, Robert E. Dalton, As-

sistant 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 prin-

ciples to the three-paragraph Panamanian statement is that

the Panamanian statement is not an amendment or reserva-

tion 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.

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 modi-

fication or not. It is therefore up to the executive branch, in exer-

cising 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 proc-

ess.

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(157)

Prepared by Jeanne J. Grimmett, Legislative Attorney.

Ex. N, 86–1, rejected May 27, 1960; motion to reconsider entered but not taken up. The Op-

tional 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.).

VIII. DISPUTE SETTLEMENT, RULES OF IN-

TERPRETATION, AND OBLIGATION TO IM-

PLEMENT

Once a treaty has entered into force, states may differ in the in-

terpretation of their obligations and disputes may arise. Most dis-

putes are settled by consultation or negotiation. However, when

these measures fail, states may resort to more formal dispute set-

tlement 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 ac-

ceptance of compulsory judicial settlement procedures of the Inter-

national Court of Justice in treaty disputes. As certain dispute set-

tlement 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

—par-

ticular attention is given to those procedures in the Vienna Con-

vention which mandate compulsory jurisdiction of the International

Court.

International law applies to disputes between nations. The rules

of international law on treaty interpretation as specified in the Vi-

enna Convention on the Law of Treaties parallel the traditional

international rules of treaty interpretation. However, the rules gov-

erning treaty interpretation set forth by the Vienna Convention dif-

fer in some important respects from the rules of treaty interpreta-

tion applied by U.S. courts in determining a treaty’s effect as do-

mestic 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 implementa-

tion of a treaty, the question of the obligation of Congress to imple-

ment an international agreement is also discussed.

A. D

ISPUTE

ETTLEMENT

If a dispute arises between states concerning a treaty’s imple-

mentation, 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 rem-

edies such as conciliation, arbitration and judicial settlement.

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158

Or submitted to the International Court of Justice or to arbitration.

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.

Ibid., Sec. 2.

Vienna Convention, Arts. 65–66.

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.

Entered into force July 1, 1975, 26 U.S.T. 1117, Treaties and Other International Acts

(TIAS) 8099.

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

CONCILIATION

Conciliation is a non-binding process whereby the parties to a

dispute submit to the efforts of an international body or commis-

sion of persons to bring about a friendly settlement of a dispute.

The Vienna Convention provides that in certain disputes, if not

otherwise settled

within 12 months, a party to the dispute may

request the Secretary General of the United Nations to set into mo-

tion 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.’’

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 chair-

person, but if they cannot agree within that time, the Secretary

General chooses that person.

The commission may only hear a narrow range of disputes relat-

ing to validity, termination, withdrawal from or suspension of the

operation of a treaty.

It may not hear disputes relating to imple-

mentation, and it may not hear disputes relating to jus cogens (su-

perior law). Any party to the convention, however, may submit a

jus cogens dispute to the International Courts.

Numerous bilateral agreements also provide for the establish-

ment of conciliation commissions or boards. The Agreement Be-

tween the United States and Poland Regarding Fisheries in the

Western Region of the Middle Atlantic Ocean

is an example of a

bilateral agreement of this type. Article 10 of the agreement pro-

vides for the creation of a conciliation board composed of four mem-

bers, two appointed by each government. The governments under-

take 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.

During two periods, 1913–1915 and 1928–1930, the United

States entered into more than 40 bilateral conciliation treaties.

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159

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).

See, for example, the Treaty with Bolivia of Jan. 22, 1914, 38 Stat. 1868, 5 Bevans 740.

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).

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, Wil-

liam 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, Restate-

ment (Third) of the Foreign Relations Law of the United States. 1987, §902, Comment e (here-

after 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).

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 mem-

bers are unable to agree have been omitted.

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.

The earlier of these treaties, the ‘‘Bryan’’ Treaties, provided for the

establishment of commissions of inquiry on a permanent basis. Re-

course to these commissions is binding, although the commission’s

reports are not binding on the parties. Senate consent, in these in-

stances, 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.

ARBITRATION

Arbitration is ‘‘the settlement of disputes between states by

judges of their own choice, and on the basis of respect for law.’’

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 interpre-

tation.

Thus, the Treaty of Peace with Italy of February 10, 1947

provided that:

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 Govern-

ment of Italy, having equal status.

[Provisions for appointment of a third member omitted]

*** The decision of the majority of the members of the Com-

mission *** shall be accepted by the parties as definitive and

binding.

During the period 1928–1930, the United States concluded a se-

ries of at least 25 bilateral arbitration treaties with foreign nations.

The text of these treaties generally specified that special agree-

ments would provide for the organization of special tribunals, de-

fine their powers, state questions at issue, and settle the terms of

reference, and that the special agreements would require the ad-

vice and consent of the Senate.

On the other hand, there have

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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.

For a discussion of investment treaties, see Chapter XI.

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.

Understanding on Rules and Procedures Governing the Settlement of Disputes (Dispute Set-

tlement 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.

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.

A panel is to issue a report on the disputed measure, which is subject to appeal by a disput-

ing party to a standing Appellate Body. Once the panel, and any Appellate Body report is adopt-

ed 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 consid-

ered vote not to do so. Ibid., Arts. 6, 12, 16–17, 21–22.

been numerous instances in which the Senate has approved trea-

ties providing for submission of specific matters to arbitration and

has left it to the President to manage appointment of the arbitra-

tors and to determine the scope and form of the arbitration.

In addition, a recent program of bilateral investment treaties has

included an investor-state disputes mechanism that gives U.S. in-

vestors 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.

Binding

investor-state arbitration is also provided for in the investment

chapter of the trilateral North American Free Trade Agreement

(NAFTA).

The World Trade Organization (WTO) Understanding on Rules

and Procedures Governing the Settlement of Disputes,

which pro-

vides for the resolution of disputes arising under WTO agree-

ments

and operates through a system of ad hoc panels,

incor-

porates binding arbitration at two points in the dispute process. In

the understanding, WTO Members agree to submit to binding arbi-

tration 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 pro-

posed 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 pe-

riod, the WTO has authorized the prevailing party to retaliate, and

the defending party objects to the level of suspension of trade con-

cessions or obligations proposed by the prevailing party or claims

that certain principles and procedures in the Dispute Settlement

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161

Ibid., Arts. 21:3(c), 22:6.

Ibid., Art. 25.

Schwarzenberger, p. 241.

United States-Canada Maritime Boundary; Dispute Settlement Treaty with Agreements,

signed March 29, 1979, 33 U.S.T. 2797, TIAS 10204.

Vienna Convention, Art. 66(a).

U.N. Charter, Art. 94.

Ibid., Arts. 39–52.

Ibid., Arts. 39–52, 23, 27.

Understanding were not followed.

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 nul-

lification 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.

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 settle-

ment 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.’’

An example of a U.S. decision to submit a dispute to binding ju-

dicial settlement is found in the 1979 United States-Canadian Mar-

itime Boundary Dispute Settlement Agreement.

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 sub-

mitted, and the chamber rendered a decision on October 12, 1984.

The Vienna Convention on the Law of Treaties provides for re-

course to judicial settlement in treaty disputes relating to whether

or not a particular norm of international law is superior or peremp-

tory 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.

If the Court subsequently reaches a decision, the par-

ties are required by the U.N. Charter

to comply with it. How-

ever, the ability of the Court to have its decisions enforced is lim-

ited to enforcement by the Security Council.

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.

Nations may also agree to submit disputes relating to treaty in-

terpretation to the jurisdiction of the International Court of Justice

before specific disputes actually arise. The Statute of the Inter-

national 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

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162

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.

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.

The Connally amendment is a condition of ratification to U.S. acceptance of the Inter-

national 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 incor-

porating 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.

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.

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.

In addition, prior to 1985, when the United States termi-

nated its Article 36(2)(b) declaration,

the United States sub-

scribed 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 Amer-

ica.’’

The Connally amendment further qualified U.S. acceptance of

the Court’s compulsory jurisdiction in certain instances when dis-

putes involving multilateral treaties were involved. Under the pro-

visions of the amendment, U.S. unqualified acceptance of the

Court’s compulsory jurisdiction did not apply to:

all Parties to the treaty, affected by the decision are also par-

ties to the case before the Court, or (2) the United States of

America specifically agrees to jurisdiction.

This Senate condition of ratification may be important in relation

to the Vienna Convention because the convention provides that dis-

putes involving peremptory norms of international law be submit-

ted 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, un-

qualified 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

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163

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 un-

dertake 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 bene-

fit, and every Administration since that of President Eisenhower has urged its repeal.’’ U.S. De-

partment 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.

Congressional Record, v. 132, Feb. 19, 1986, p. 2349.

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. Li-

brary of Congress, Legislative Reference Service, Oct. 31, 1968, p. 8.

Vienna Convention, Arts. 31–32.

Rest. 3d, §325, Comment g.

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.

Rest. 3d, §325, Comment g and Reporters’ Note 1.

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 consider-

ation of the Vienna Convention.

In giving its advice and consent to the Genocide Convention pro-

viding 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, be-

fore any dispute to which the United States is a party may be

submitted to the jurisdiction of the International Court of Jus-

tice under this article, the specific consent of the United States

is required in each case.

B. R

ULES OF

NTERPRETATION

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 inter-

pretation which differ from those traditionally applied by the U.S.

courts. This may be important to the extent that the Connally Res-

ervation 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.

The Vienna Convention codifies existing international rules of

treaty interpretation,

which differ from the rules of treaty inter-

pretation as applied by U.S. courts.

In essence, the convention

stresses ‘‘the dominant position of the text itself in the interpreta-

tive process,’’

whereas U.S. courts are more apt to permit supple-

mentary means of interpretation if necessary.

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

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164

Vienna Convention, Art. 31.

Ibid.

Ibid., Art. 32.

See Kearney, Richard D. and Dalton, Robert E. The Treaty on Treaties. American Journal

of International Law, v. 64, 1970, p. 520.

Rest. 3d, §325, Reporters’ Note 1.

Ibid., Sec. 325, Comments and Reporters’ Notes.

For example, the legislative history of a Senate reservation to a treaty might be considered

in ascertaining its intent.

Rest. 3d, §326(2).

Ibid., Sec. 326(2), Reporters’ Note 4.

Factor v. Laubenheimer, 290 U.S. 276, 294–295 (1933).

Kolovrat v. Oregon, 336 U.S. 187 (1961). For recent examples of judicial treaty interpreta-

tion, 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).

and purpose.’’

The context of the treaty for interpretation pur-

poses is generally limited to preambles, annexes, agreements relat-

ing to the agreement, and subsequent agreements which relate to

the interpretation of the treaty, or subsequent practice which es-

tablishes agreement of the parties regarding interpretations.

Sup-

plementary means of interpretation (such as the preparatory work

of the treaty) are not allowed under the convention unless applica-

tion of the earlier rule would lead to a manifestly absurd or unrea-

sonable result.

Thus, except for unusual circumstances, the con-

vention would exclude as aids to interpretation such items as the

preparatory work of the treaty and the circumstances of its conclu-

sion.

In contrast, current U.S. application of international law in trea-

ty 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.

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 state-

ments of understanding, subsequent practice, change of cir-

cumstances, compatibility with international law and general prin-

ciples of law, and differences between languages.

Furthermore, when interpreting a treaty under domestic law,

U.S. courts include as relevant matters indications of U.S. intent

in making the agreement,

as well as the executive branch’s inter-

pretation of the agreement’s meaning.

U.S. courts generally as-

sign ‘‘great weight’’ to such executive branch interpretation of an

international agreement.

Thus, for example, in 1933, the U.S. Su-

preme Court in deciding whether a particular offense was extra-

ditable 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 ap-

pellant.

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.’’

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 Anti-

ballistic Missile (ABM) Treaty between the United States and the

former Soviet Union was approved by the Senate in 1972 and sub-

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165

The Clinton Administration announced in 1993 that it had returned to the traditional inter-

pretation 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 tech-

nology 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.

See U.S. Senate. Committee on Foreign Relations. The ABM Interpretation Resolution. S.

Rept. 100–164, 100th Cong., 1st Sess., 1987.

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.

sequently 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.

The Senate Foreign Relations

Committee responded by proposing S. Res. 167, the ABM Treaty

Interpretation Resolution.

Although never acted on by the Sen-

ate, the resolution focused attention on the problem of reinterpreta-

tion. 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 Reso-

lution provided as follows:

(2) Under the United States Constitution—

(A) a treaty is properly interpreted in good faith in ac-

cordance with the ordinary meaning to be given its terms

in light of their context and in light of its object and pur-

pose;

(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;

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 accept-

ance of, or Senate acquiescence in, interpretations of the

treaty by the Executive branch communicated to the Sen-

ate;

(D) the Senate’s understanding of a treaty cannot be in-

formed 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 in-

terpreting the treaty.

Subsequently, in a 1988 move designed to preempt any future

administration reinterpretation of the INF Treaty,

the Senate at-

tached 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:

(1) Provided, that the Senate’s advice and consent to ratifica-

tion 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 ac-

cordance 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;

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166

Congressional Record, v. 134, May 27, 1988, p. 12849. See also discussion of treaty interpre-

tation in Chapter VI.

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.

For further discussion, see Chapter VI, under ‘‘Condition Regarding Treaty Interpretation.’’

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.’’

(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 representa-

tives to the Senate and its Committees, in seeking

Senate consent to ratification, insofar as such rep-

resentations were directed to the meaning and legal

effect of the text of the Treaty; and

terpretation different from that common understanding ex-

cept pursuant to Senate advice and consent to a subse-

quent treaty or protocol, or the enactment of a statute; and

(D) if, subsequent to ratification of the Treaty, a ques-

tion 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 in-

terpreted in accordance with applicable United States

law.

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 dec-

larations in the Resolutions of Ratification of the Treaty on Con-

ventional 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.

Since 1997, the

Senate has added a modified version of this condition to its resolu-

tion of ratification on all treaties that have come before it.

C. O

BLIGATION TO

MPLEMENT

Disputes involving treaties commonly center on questions relat-

ing 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 ap-

propriation of funds to give effect to obligations assumed inter-

nationally by the United States.

When implementation of a treaty requires domestic legislation or

an appropriation of funds, only the Congress can provide them.

The issue of the extent of the obligation of Congress to appropriate

money arose with debate on the Jay Treaty, the first treaty con-

cluded under the Constitution. In the 1796 debates on appropria-

tions for the treaty, Treasury Secretary Hamilton argued that as

treaties are the law of the land, Congress was obligated to appro-

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167

Byrd, Elbert M. Jr. Treaties and Executive Agreements in the United States: Their Sepa-

rate Roles and Limitations. 1960, pp. 35–39.

U.S. Congress. House. Constitution, Jefferson’s Manual, and Rules of the House of Rep-

resentatives of the United States. H.R. Doc. 104–272, §596, 104th Cong., 2d Sess.

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).

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.

Henkin, pp. 205–206.

Public Law 102–266, signed April 2, 1992. For a table and breakdown of the cuts see San-

ford, Jonathan E. U.S. Foreign Policy and Multilateral Development Banks. 1982, pp. 126–129

(hereafter cited as Sanford 1982).

See Sanford, Jonathan E. Multilateral Development Banks: U.S. Contributions FY 1990–

2001. CRS Report for Congress RS 20792.

priate the money to implement them. Members of Congress, nota-

bly 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.

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.

Although the Congress has usually insisted on the right of choice

not to appropriate funds to implement a perfected treaty, histori-

cally 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.

The extent of congressional obligation to implement a treaty

under U.S. law has not been resolved in principle.

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 re-

quired.’’

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 re-

quested $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 re-

quested $1,785.5 million, the Congress appropriated only $1,583.5

million.

This included contributions which were less than the ad-

ministration had requested for some multilateral programs and

more than the administration had requested for others.

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168

For a discussion of the commitment issue generally, see Sanford 1982, pp. 152–179.

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.

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 com-

mitment.

Public Law 105–118, Sec. 560(a), 111 Stat. 2425, 22 U.S.C. §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 Inter-

national 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. §286e–

1m (Supp. IV 1999), as added by Public Law 105–277, Div. A, §101(d) [title VI, § 608], 112 Stat.

2681–224.

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.

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

Among other things, these events may be seen as evidence of the

Congress’ desire to make clear its right and power to specify com-

mitment levels and to make appropriations cuts even after approv-

ing international agreements.

For example, in 1974 Congress en-

acted 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 replen-

ishment to the International Development Association. In a letter

to Treasury Secretary William Simon, however, the Senate Appro-

priations 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,

Congress responded by cutting by $55 million

the first U.S. payment to the International Development Associa-

tion in what reportedly was an attempt by Congress to make clear

its dissatisfaction over the commitment issue.

Beginning in 1977,

Congress had stipulated in its authorization acts that the U.S. Gov-

ernment could not make any formal commitment until the nec-

essary 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 con-

tribution to the financial institution for its eleventh replenishment

on behalf of the United States.

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 sched-

ule. In the case of the Treaty of Friendship and Cooperation Be-

tween the United States and Spain,

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 statu-

tory authorization and not by treaty alone.

The pertinent lan-

guage of the Senate declaration involved reads:

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169

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.

See S. Exec. Rept. 94–25, and Digest of United States Practice in International Law 1976.

1977, p. 232.

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 Devel-

opment Banks: The Role of Congress. George Washington Journal of International Law and Eco-

nomics, v. 22, 1988, pp. 49–57.

The Department of State, Justice and Commerce, the Judiciary, and Related Agencies Ap-

propriations Act, 1979, Public Law 95–431, 92 Stat. 1021.

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.

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 finan-

cial institutions. (22 U.S.C. 262c note). See Foreign Assistance and Related Programs Appropria-

tions Act, 1979, Public Law 95–481, 92 Stat. 1591, for the sense of the Congress on such fund-

ing. Note that it is not unusual for the executive branch to negotiate and sign agreements ‘‘sub-

ject to the availability of funds.’’

the sums referred to in *** the Treaty, shall be made avail-

able for obligation through the normal procedures of the Con-

gress, 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.

Congress, in the exercise of its appropriation power, can also ear-

mark 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 Develop-

ment Bank. In that year, Congress earmarked $50 million of the

bank’s concessional aid specifically for loans to cooperative institu-

tions. The bank, however, refused to accept the funds on the

ground that its charter prohibits acceptance of conditional contribu-

tions to its regular loan accounts. Congress subsequently rescinded

the earmarking requirements in its 1976 fiscal year appropriations

legislation.

In another instance, legislation in October 1978 pro-

hibited the use of U.S. assessed contributions to the United Na-

tions for financing of technical assistance to other countries.

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 Na-

tions system.’’

Another method by which Congress has attempted to use the ap-

propriations power to influence treaty implementation is through

sense of the Congress resolutions. Congress has used such resolu-

tions to indicate its views about reasonable funding required to

give effect to a treaty. In 1977 and 1978, Congress passed legisla-

tion specifying the U.S. share in future multilateral development

bank funding plans.

In such instances, by specifying in advance

the limits of its intent to commit funds, the Congress hoped to re-

duce the possibility of future congressional-executive branch fric-

tion over the issue.

More recently, Congress has called for legislative-executive con-

sultation prior to and during international negotiations leading up

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170

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.

Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1993,

Public Law 102–391.

to agreements involving funds. In 1981, Congress added Title XII

to the International Financial Institutions Act, which states:

Title XII—Congressional Consultations

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 Af-

fairs 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 inter-

national negotiations being held to consider future replen-

ishments or capital expansions of any multilateral develop-

ment 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 negotia-

tions 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 agree-

ments on funding multilateral financial institutions, stating the fol-

lowing:

Prior Consultations on IFI Replenishments

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 ap-

propriate authorizing committees on the United States position

entering those negotiations.

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(171)

Prepared by David M. Ackerman, Legislative Attorney.

In determining the legal framework governing the subjects of this chapter, considerable reli-

ance 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 var-

ious 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. Ref-

erence 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.

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 inter-

national agreements, also from a purely domestic perspective, include executive agreements pur-

suant 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.

Article II, sec. 2, Clause 2.

Article VI, sec. 2.

Article I, sec. 10, Clause 1.

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).

IX. AMENDMENT OR MODIFICATION, EXTEN-

SION, SUSPENSION, AND TERMINATION OF

TREATIES AND OTHER INTERNATIONAL

AGREEMENTS

A. I

NTRODUCTION

The Constitution in clear and unmistakable terms settles only

three matters with respect to treaties:

it establishes the treaty

power and identifies the treatymaking principals;

it provides that

self-executing treaties together with the Constitution and Federal

laws constitute the supreme law of the land;

and it withholds

from the several states of the United States authority to enter into

any treaty.

On a whole range of concerns affecting the subject of

treaties, including amendment or modification, extension, suspen-

sion, and termination, the Constitution is silent. More than 200

years of practice and judicial decisions have filled some of the men-

tioned and other gaps,

but a number of treaty-related issues per-

sist without definitive resolution.

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172

See, generally, Farrand, Max. The Records of Convention of 1787 (4 vols.), Yale University

Press (1966).

See, generally, Elliot, Jonathan. The Debates in the Several State Conventions on the Adop-

tion of the Federal Constitution (5 vols.), Burt Franklin, New York (1888 ed.)

Henkin, Louis. Foreign Affairs and the United States Constitution (2d ed.), Clarendon Press

(1996), p. 212 (hereafter cited as Henkin).

See Chapters III and IV.

American Law Institute, Restatement (Third) of the Foreign Relations Law of the United

States, vol. 1, American Law Institute Publishers (1987), §1 (hereafter cited as Restatement

(Third) or Rest. 3d).

United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936) (emphasis added).

Neither the records of the Proceedings at the Constitutional Con-

vention

nor those of the ratifying conventions in the states

indi-

cate the reasons for these glaring omissions. It may be, as one com-

mentator has suggested in discussing treaty termination, that ‘‘per-

haps 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.’’

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 ex-

ecutive agreements on a variety of subjects and of varying degrees

of importance have been common from the earliest of times under

the Constitution.

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 gov-

erns relations between states.

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:

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 de-

clare 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 fam-

ily. Otherwise, the United States is not completely sovereign.

The power to acquire territory by discovery and occupa-

tion ***, 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 ex-

pressly affirmed by the Constitution, nevertheless exist as in-

herently inseparable from the conception of nationality. This

the court recognized, and *** found the warrant for its conclu-

sions not in the provisions of the Constitution, but in the law

of nations.

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173

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 par-

ties to it and must be performed by them in good faith.’’

With regard to internal law and the observance of treaties, Article 27 of the Vienna Conven-

tion 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 vio-

lation of internal law ‘‘was manifest and concerned a rule of ** * internal law of fundamental

importance.’’

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).

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).

Rest. 3d, supra, note 12, §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.’’

Ibid., §339, Reporters’ Note 2.

As a general rule, international law and domestic law regarding

the amendment or modification, extension, suspension, and termi-

nation of treaties and other international agreements are in sub-

stantial harmony. International law recognizes the power to accom-

plish 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,

provisions of internal

law are generally not available as a justification for the failure of

a party to carry out a treaty.

It can be argued that amendment or modification, extension, sus-

pension, 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 es-

tablished by an unbroken line of consistent practice. By and large

the participation of the Senate with respect to amendment or modi-

fication and extension of treaties seems fairly well established; sus-

pension seems largely left to Presidential determination; termi-

nation has happened in such a variety of ways that it has been

said that ‘‘[n]o settled rule or procedure has been followed.’’

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 de-

parted 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.’’

Moreover,

to the extent that congressionally-authorized executive agreements

have become the legal equivalent of treaties,

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.

Judged as a purely domestic legal matter, the amendment or

modification, extension, suspension, and termination of an execu-

tive agreement concluded by the President can be accomplished by

the President alone.

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 re-

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‘‘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 re-

quested 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).

‘‘Congress could impose such a condition in authorizing the President to conclude an agree-

ment 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).

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 inter-

national law by the United States does not appear to be of any constitutional significance.

Henkin, supra, note 2, p. 485, note 130.

Wildhaber, Luzius. Treaty-Making Power and the Constitution. Basel and Stattgart,

Helbing & Lichtenhahn, 1971, p. 67.

Ibid.

spect to executive agreements authorized by statute or treaty.

the two last mentioned circumstances, the authorizing statute or

treaty may conceivably condition amendment or modification, ex-

tension, suspension, and termination on senatorial or congressional

approval.

Finally, treaties and executive agreements generally may both be

superseded by an act of Congress in so far as their domestic con-

sequences are concerned.

However, legislation alone does not af-

fect the international obligation of the United States under a treaty

or executive agreement.

Several post-World War II developments have impacted the Sen-

ate’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 inter-

national agreements seems also to have had a decided impact on

Senate consideration of amendments and modifications. For in-

stance, 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.’’

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.’’

The Restatement (Third) similarly ob-

serves:

If another party formulates a reservation to a treaty to

which the United States is a party, the reservation cannot be-

come 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 reserva-

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175

Rest. 3d, supra, note 12, §314, Comment c.

See, for example, Article 24 of the United Nations Framework Convention on Climate

Change, TIAS ll (1994); Article 24 of the Protocol on Environmental Protection to the Ant-

arctic Treaty, TIAS ll (1998); Article 25 of the Kyoto Protocol to the United Nations Frame-

work Convention on Climate Change, FCCC/CP/L.7/Add.1 (1997) (not yet submitted to the Sen-

ate); 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 Environ-

ment Programme Agreement, Tr. Doc. 105–32 (November 7, 1997); United Nations Convention

To Combat Desertification in Countries Experiencing Drought, Particularly in Africa, With An-

nexes, 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 Septem-

ber 20, 2000).

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 rec-

ommending Senate advice and consent to the Protocol on Environmental Protection to the Ant-

arctic 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 deter-

mine 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 Sep-

tember 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 con-

vention 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 pro-

hibit the Senate from giving its advice and consent to ratification of the treaty subject to amend-

ment or reservation.’’ 143 Congressional Record, April 24, 1997, p. S3656 (daily ed.).

tions by another state, entered after United States adherence

to the treaty, without seeking Senate consent ***.

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 fre-

quency is the inclusion in some multilateral agreements of provi-

sions barring reservations.

The Senate Committee on Foreign Re-

lations 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.

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, im-

plementing bodies with the authority to make changes, and amend-

ment 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

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176

S. Exec. Rept. 96–36, 96th Cong., 2d Sess. (1980), p. 2. See also discussion of tacit accept-

ance of reservations in Chapter VII.

S. Rept. 96–119, 96th Cong., 1st Sess. (1979), p. 5.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring).

Dames & Moore v. Regan, 453 U.S. 654, 660 (1981).

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 ‘‘modifica-

tion’’ 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.

amending process.

But the practice developed under these ground

rules and committee experience associated with them apparently

have not been rigorously analyzed.

Thus, theory and past practice regarding the necessity for con-

joint action by the President and the Senate on treaty-related mat-

ters 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 cir-

cumstances.

They also illustrate once again that

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.

*** [I]t is

doubtless both futile and perhaps dangerous to find any epi-

grammatical explanation of how this country has been gov-

erned.

B. A

MENDMENT AND

ODIFICATION

TREATIES

The amendment of a binding international agreement may be ac-

complished in a variety of ways including, among others, in accord-

ance with provisions included for that purpose in the agreement,

by the consent of the parties, and by entry into force of a new, sub-

sequent 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 common-

sense 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 sub-

ject involving the same parties that expressly or by implication

modifies an earlier agreement will be regarded as effecting the re-

sulting 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 par-

ties. The rules laid down in Part II [relating, among other

things, to the conclusion of treaties] apply to such an agree-

ment except in so far as the treaty may otherwise provide.

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177

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.

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 Vi-

enna Convention sense of a revision that applies to all of the par-

ties. Article 40 provides that, unless the treaty in question provides

otherwise, the following four considerations apply to an amend-

ment:

(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 ne-

gotiation 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 agree-

ment; 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.

(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 amend-

ing agreement.

Finally, Article 41 deals with the modification of a multilateral

treaty in the strict Vienna Convention sense of a change that is in-

tended 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 al-

lows 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 per-

formance 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 agree-

ment between the parties.

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178

Rest. 3d, supra, §334.

V Hackworth, supra, p. 333.

14 Whiteman, supra, p. 441.

Ibid., pp. 59–60.

(2) Unless it provides otherwise, a multilateral agreement

may be amended, with effect as between those states that be-

come parties to the amending agreement, if all the contracting

states were given an opportunity to take part in the negotia-

tions 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 ob-

ject and purpose.

As previously indicated, amendments or modifications to a treaty

or international agreement generally have entailed the same proce-

dure 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,’’

and the Whiteman edition reiter-

ates that ‘‘it is a general rule that a treaty cannot be modified ex-

cept by an instrument brought into force through the treaty proc-

esses.’’

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 in-

stance, as follows:

*** 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 Con-

vention, 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 print-

ed 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 inas-

much 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.’’

Similarly, the Senate on October 1, 1992, without fanfare or pro-

tracted debate, gave its advice and consent to Presidential ratifica-

tion of the Strategic Arms Reduction Treaty (START) along with an

amending protocol. START, a product of 10 years of frequently dif-

ficult negotiations between the United States and the former Soviet

Union, reduced rather than simply placed a cap on weapons sys-

tems 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

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179

The protocol was submitted to the Senate on June 23, 1992. See Senate Treaty Doc. 102–

32, 102d Cong., 2d Sess. (1992).

See Letter from William C. Danvers, Special Assistant to the President, to Al Gore, Presi-

dent 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, §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) con-

stituted ‘‘substantive changes’’ to the ABM Treaty and whether they ‘‘require the advice and

consent of the Senate.’’

TIAS ll (May 15, 1997).

the dissolution of the Soviet Union and the emergence of more than

a dozen new states on its territory. Accordingly, the Bush Adminis-

tration 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 trea-

ty 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.

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 So-

viet 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 Succes-

sion (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.

But a number of Senators disagreed with that

perspective; and prior to the signing of the MOUS the Senate in-

cluded the following condition in its resolution of ratification on an

unrelated agreement, the Conventional Forces in Europe Flank

Document:

(9) SENATE PREROGATIVES ON MULTILATERALIZA-

TION OF THE ABM TREATY.—

(A) ***

(B) CERTIFICATION REQUIRED.—Prior to the deposit

of the United States instrument of ratification, the Presi-

dent 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 cov-

erage of the ABM Treaty, or otherwise modify the

meaning of the term ‘‘national territory’’ as used in Ar-

ticle VI and Article IX of the ABM Treaty.

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180

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.).

143 Congressional Record, May 15, 1997, pp. S4587–S4588 (daily ed.) (Report on the CFE

Flank Document—Message from the President).

Treaty Doc. 105–5, 105th Cong., 1st Sess. (April 7, 1997).

The texts of these agreements can be found on the State Department’s Web site at

www.state.gov/www/global/arms/bureaulac/missile.

See letter from William C. Danvers, Special Assistant to the President, to Al Gore, Presi-

dent of the United States Senate, supra, n. 39, and Office of Legal Counsel, Department of Jus-

President Clinton protested that this condition invaded ‘‘a matter

reserved to the President under the Constitution’’ and was sub-

stantively 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.

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 cat-

egories of conventional military equipment. The purpose of the pact

was to stabilize the military situation in Europe and to reduce ten-

sions. 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 agree-

ments 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 oth-

erwise 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 leader-

ship obtained the administration’s commitment to submit the CFE

Flank Document to the Senate for its advice and consent. The ad-

ministration did so;

and, as noted above, the Senate gave its ap-

proval on May 14, 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 sys-

tem 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 mis-

sile defense systems restricted by the treaty and theater missile de-

fense systems that were allowable. Ultimately the negotiations suc-

ceeded 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.

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.

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181

tice, ‘‘Validity of Congressional-Executive Agreements That Substantially Modify the United

States’ Obligations Under an Existing Treaty’’ (November 25, 1996).

As of November 2000, however, neither the ASD nor the MOUS had yet been sent to the

Senate.

Fotochrome Inc. v. Copal Company Ltd., 517 F. 2d 512 (2d Cir. 1975), note 4.

V Hackworth, supra, p. 338.

Ibid., at 341–342.

Ibid., at 334.

Ibid., at 340.

Ibid., at 339–341.

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.

Senate advice and consent may not be required, however, when

an agreement is effectively amended or modified by a later agree-

ment or when an act of Congress affects a treaty in some vital re-

gard. Thus, when the United States and another country were par-

ties to a bilateral treaty but then became parties to a multilateral

convention covering the same subject matter (in part), the conven-

tion was judicially declared to modify conflicting provisions in the

bilateral agreement and to control the proceeding.

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.’’

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 Depart-

ment that he could give ‘‘practical effect’’ to a convention providing

for termination of extraterritorial rights in Egypt granted by pre-

vious treaties pending formal ratification of the convention by the

United States.

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 Govern-

ment of divesting the Consuls of this authority is either by a repeal

of the act or by conclusion of [another] treaty ***.’’

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 acqui-

esced in actions by foreign Governments which had the effect of

modifying stipulations in our treaties.’’

Examples of change in

the strict terms of an international agreement by tacit acquiescence

documented by Hackworth involved multilateral arrangements ac-

cepted by all the parties and temporary departures during periods

of abnormal conditions such as war or pending action on a new

treaty.

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

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182

See note 23 and accompanying text.

Rest. 3d, supra, §314, Comment c.

INF Treaty, TIAS ll, 27 ILM 84 (1988), Articles XI and XIII.

CFE Treaty, TIAS ll, 30 ILM 1 (1991), Article XVI.

START, TIAS ll (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.

25 UST 3329 (1972).

TIAS ll (1987), Article 2(9).

Ibid.

32 UST 47 (1980), Article VIII.

ratified by the United States.

The Restatement (Third) takes note

of the practice and concludes with this observation:

Constitutionally, that practice must depend on an assump-

tion that the Senate, aware of Executive practice and acquiesc-

ing in it, in giving consent to the treaty also tacitly gives its

consent to later acceptance by the Executive of reservations by

other states.

The tacit amendment process may also occur pursuant to the ex-

plicit provisions of some treaties. Due, perhaps, to their complexity

and technical specificity, a number of arms control and environ-

mental agreements establish processes for their own modification

which do not require further Senate involvement. The modifica-

tions 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 Ver-

ification Commission with the authority to modify the verification

procedures used under the treaty and, in the case of the Inspec-

tions Protocol, to ‘‘agree upon such measures as may be necessary

to improve the viability and effectiveness of this Protocol.’’

The

CFE Treaty, in turn, created a Joint Consultative Group with the

authority to agree to improvements of a technical or administrative

nature.

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 im-

prove the viability and effectiveness of the Treaty.’’

The United

States-Japan Convention for the Protection of Migratory Birds al-

lows the parties to modify the list of birds protected by diplomatic

note.

The Montreal Protocol on Substances that Deplete the

Ozone Layer allows the parties to restrict the production and con-

sumption of substances specified in the annexes as depleting at-

mospheric ozone as well as the timetable by which such adjust-

ments must be made.

Some agreements explicitly permit modi-

fications 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 re-

sort 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.

The International Conven-

tion on Safety of Life at Sea permits amendments to enter into

force automatically after a specified time period has elapsed, ab-

sent objection by a quorum of parties.

The U.N. Charter, in Arti-

cle 108, provides that an amendment comes into force for all mem-

bers if it is approved by two-thirds of the members of the General

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183

26 UST 2403; TIAS 8165.

S. Exec. Rept. 96–36, 96th Cong., 2d Sess. (1980), p. 2 (emphasis added).

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); Amer-

ican Federation of Government Employees v. Pierce, 697 F. 2d 303 (D.C. Cir. 1982) (committee

veto held unconstitutional).

14 Whiteman, supra, p. 194. See Chapter IV.

The power of the President to make executive agreements has been recognized by the Su-

preme 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 independ-

ent 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.

Assembly and ratified by two-thirds of the member states including

all permanent members of the Security Council.

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 pur-

suant 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 rec-

ommending the approval of the Convention on the Prevention of

Maritime Pollution by Dumping of Wastes and other Matter as

modified by a 1978 protocol,

the Senate Foreign Relations Com-

mittee tried to balance the need to prevent undue delay with its

oversight responsibility. It said:

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 pro-

posed 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.

While the reasons behind the committee’s attempt to bridge effi-

ciency 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 Con-

gress by law or the Senate by rule could authorize the committee

to act in this manner are unresolved issues.

EXECUTIVE AGREEMENTS

As ‘‘[t]he Constitution of the United States nowhere makes ex-

plicit provision for the President to conclude international agree-

ments other than treaties,’’

it follows that the Constitution offers

no guidance regarding the amendment of executive agreements.

Furthermore, authoritative texts and secondary writings to all ap-

pearances fail to shed any significant light on the actual practice

of amending executive agreements.

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184

See note 20. ‘‘** * the President, on his own authority, may make an international agree-

ment dealing with any matter that falls within his independent powers under the Constitution.’’

Rest. 3d, supra, §303(4).

‘‘** * (2) the President, with the authorization or approval of Congress, may make an inter-

national 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.

Ibid., at 223.

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).

‘‘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 applica-

tion, e.g., ** * that agreements ** * made in implementation of the treaty shall require the Sen-

ate’s advice and consent.’’ Rest. 3d, supra, §303, Comment d.

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 dis-

arm or reduce or limit the Armed Forces of the United States unless pursuant to treaty or un-

less authorized by legislation.

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 mak-

ing of an agreement. Accordingly, since agreements of this nature

concluded by the President are not submitted to the Senate or Con-

gress 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.

As a general matter, the same conclu-

sion applies to modifications of executive agreements pursuant to

either a treaty or an act of Congress.

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.

However, Congress may impose limitations on agreements it au-

thorizes to be made.

Notably in the fields of international trade

and nuclear energy Congress has authorized the President to con-

clude international agreements but has required him to submit

them for congressional scrutiny and possible disapproval.

More-

over, the Senate may condition approval of a treaty which author-

izes the conclusion of an agreement upon submission of the agree-

ment for approval by the Senate or Congress.

Similarly, an act

of Congress or treaty could require Senate or congressional ap-

proval of amendments or modifications to international agreements

that they authorize the President to conclude.

C. E

XTENSION

TREATIES

The Vienna Convention on the Law of Treaties deals implicitly

rather than explicitly with the subject of treaty extension. Exten-

sion of an international agreement to all intents and purposes is

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185

V Hackworth, supra, p. 334.

Ibid., p. 335.

Ibid.

Ibid., p. 336.

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.

the execution of a new agreement (or re-execution) and, therefore,

is subject to the convention’s overall requirements for treaties, in-

cluding conclusion, amendment and modification, suspension, and

termination.

As an agreement to extend a treaty for many, if not most, pur-

poses is considered a treaty modification, general U.S. practice is

to submit an extension to the Senate for its advice and consent. Ac-

cordingly, 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 posi-

tion 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 sus-

ceptible of execution on the part of the Government in the

manner suggested.

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 termi-

nation.

Similar replies were given to requests for postponement

of termination of treaties made by Norway, Spain, and Greece.

Similarly, when Italy proposed that commissioners acting under

a treaty serve indefinite terms rather than the 5-year term estab-

lished in the treaty, the Department of State replied that this

change could not be made by an exchange of notes but would re-

quire a new treaty.

In like manner, when the United States and

Canada agreed to depart from a 1909 treaty concerning the diver-

sion of boundary waters in the Niagara River to permit an addi-

tional diversion for power purposes, the exchange of notes stated

that the agreement would be effective ‘‘when approved by the Sen-

ate.’’

‘‘The Senate of the United States advised ratification on

June 2, 1941, and the President ‘approved’ the arrangement on

June 13.’’

The extension of commodity agreements—agreements establish-

ing the framework for international cooperation in wheat, coffee,

tin, and sugar—are routinely submitted to the Senate. The Inter-

national Wheat Agreement of 1971, which was replaced in 1988 by

a 1986 successor, was extended on more than half a dozen occa-

sions.

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,

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186

Treaty Doc. 97–20, 97th Cong., 1st Sess. (1981), p. 1.

V Hackworth, supra, p. 337.

14 Whiteman, supra, p. 100, quoting S. Exec. Rept. 8, 81st Cong., 1st Sess. (1949), p. 18.

1976, between the United States and Spain. The temporary exten-

sion, 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.

However, the extension of times for the organization of commis-

sions called for by various treaties was in one instance accom-

plished by an exchange of notes and in another by agreement of the

members of the commission.

The role of the Senate with respect to the extension or enlarge-

ment 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 arrange-

ments, 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 radi-

cally alter our obligations under the pact, the committee

examined article 10 very carefully. The question arose

whether an United States decision respecting new mem-

bers would be based solely on Presidential action or would

require Senate approval. Consequently, the committee was

fully satisfied by the commitment of the President, deliv-

ered 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 ad-

vice and consent of the Senate to each such admission. The

committee considers this is an obligation binding upon the

Presidential office.

The report of the Foreign Relations Committee recommend-

ing ratification of the [Southeast Asia Collective Defense] Trea-

ty stated:

Provision is made in three articles of the treaty for modi-

fication of its terms by unanimous agreement. Thus, arti-

cle 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 agree-

ment may hereafter designate.’ Article VII refers to the ac-

cession of additional states ‘by unanimous agreement of

the parties.’ To avoid the possibility of any misunderstand-

ing on the significance of this clause, the President in-

formed 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

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187

Ibid., p. 101, quoting S. Exec. Rept. 11, 84th Cong., 1st Sess. (1957), pp. 11–12.

U.N. Charter, Article 4; 59 Stat. 1031; 3 Bevans 1153.

See S. Exec. Rept. F, 79th Cong., 1st Sess. (1945).

16 U.S.C. 1822(c); Public Law 94–265, Title II, §202 (April 13, 1976); 90 Stat. 331, 340.

See, for example, Public Law 98–364, Title I, §106 (July 17, 1984) (approving the extension

of the Governing International Fishery Agreement with the European Economic Community)

and Public Law 100–66, § 1 (July 10, 1987) (approving the extension of the Governing Inter-

national Fishery Agreement with South Korea).

‘‘Suspension is distinguished from termination ** * principally in that suspension can be re-

voked 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 agree-

ment restored by agreement of the parties informally.’’ Rest. 3d, supra, §333, Comment a. ‘‘Sus-

pension of an agreement is relatively rare.’’ Ibid., Reporters’ Note 3.

Vienna Convention on the Law of Treaties, supra, Article 57.

modification of the treaty area, but these matters must

also be brought before the Senate.

In contrast, the Senate has generally not sought or reserved to

itself any role with respect to state participation in most other mul-

tilateral conventions, including those establishing international or-

ganizations. 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.

No review or approval

by the Senate is required.

EXECUTIVE AGREEMENTS

In the case of an international agreement in the form of an exec-

utive agreement, extension does not involve the Senate or Congress

if the agreement is based on the President’s exclusive constitu-

tional 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 ex-

tension and reserve a role for the Senate or Congress. In the Mag-

nuson Fishery Conservation and Management Act of 1976, for in-

stance, Congress directed the Secretary of State to negotiate ‘‘gov-

erning 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.

Subsequently, Congress by statute

approved the extension of several such agreements.

D. S

USPENSION

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 provi-

sions or by consent of all of the parties.

Two or more parties to a treaty may agree to suspend the oper-

ation of its provisions temporarily and as between themselves alone

in accordance with relevant treaty provisions. In the absence of rel-

evant provisions, parties in these circumstances may agree to sus-

pend the operation of treaty provisions under two conditions. The

first is that the suspension does not affect the enjoyment by other

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188

Ibid., Article 58.

Ibid., Article 59.

Ibid., Article 60.

Rest. 3d, supra, §333.

parties of their rights under the treaty or the performance of their

obligations. The second is that the suspension cannot be incompat-

ible 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.

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.

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.

The Restatement (Third) follows a portion of the Vienna Conven-

tion in Section 333 as follows:

(1) The operation of an international agreement may be sus-

pended in conformity with its provisions or by consent of all

the parties.

(2) Two or more parties to a multilateral international agree-

ment may agree to suspend its operation as between them-

selves 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 pur-

pose.

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 rela-

tions of the United States. The Restatement’s rules covering sus-

pension are formulated accordingly. Thus Section 339 provides

that:

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189

Ibid. §339.

V Hackworth, supra, p. 339, citing 40 Op. Atty. Gen., no. 24 (1941). See 14 Whiteman,

supra, pp. 483–485.

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

nate an agreement.

The Restatement rule is in line with a 1941 opinion by Acting

Attorney General Biddle who concluded that a treaty could be sus-

pended by the President without aid or intervention of the Senate

or Congress. With respect to the International Load Line Conven-

tion 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 op-

eration the right to declare the convention inoperative or sus-

pended 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 announc-

ing 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 be-

cause 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 Com-

merce 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.

Fundamental to the Attorney General’s position was the assump-

tion that the convention presupposed peacetime conditions which

no longer prevailed. Accordingly, the President could recognize the

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190

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).

Nash, Cumulative Digest 1981–1988, supra, Book I, pp. 1279–1281.

V Hackworth, supra, p. 342.

Henkin, supra, at 489, note 138.

changed circumstances (rebus sic stantibus) and suspend the con-

vention during the pendency of the abnormal circumstances. With-

out taking sides as to whether the rule of changed circumstances

applies only when the change is essential or fundamental, the opin-

ion concluded that the more onerous circumstance was met in this

case.

As previously indicated, a material breach of a bilateral inter-

national agreement by one of the parties entitles the other to sus-

pend it in whole or in part. Also, a material breach of a multilat-

eral 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 au-

thority 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. Accord-

ingly, as a practical matter the President has the power to suspend

a treaty since the courts look to executive determinations for guid-

ance respecting the continued viability of a treaty.

Thus, in 1986

the United States gave notice that it was suspending the obliga-

tions 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.

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 func-

tions of American consular and diplomatic officials, the State De-

partment concluded that he could suspend the jurisdiction of the

consular and ministerial courts in Egypt and permit their jurisdic-

tion to be transferred to the mixed courts of that country notwith-

standing that ratification of a pertinent convention by the United

States was still pending.

Also, it has been observed that by virtue of his power to recog-

nize or not to recognize governments, the President can continue

or suspend treaty relations with the country in question.

In light of the tendency of domestic courts to be guided by execu-

tive actions regarding the continued effectiveness of a treaty, ac-

tions 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 nation-

als—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:

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191

100

Charlton v. Kelly, 229 U.S. 447, 473, 474, 476 (1913).

101

14 Whiteman, supra, p. 477.

*** 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 citi-

zens, it is the plain duty of this court to recognize the obliga-

tion 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

In 1957 the Department of State indicated that while the Presi-

dent ‘‘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 reac-

tions ***.’’

101

Concerning the exercise of a Presidential waiver adversely affect-

ing 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 in-

strument 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 provi-

sion 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 posi-

tion 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

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192

102

Ibid., pp. 441–442.

103

Vienna Convention on the Law of Treaties, supra, Article 54.

104

Ibid., Article 26.

105

Ibid., Article 56.

very careful consideration at a high level of the rights in-

volved and the national interest.

102

EXECUTIVE AGREEMENTS

Unless qualified by an act of Congress or treaty authorizing the

agreement (that is, by the Senate’s conditioning its advice and con-

sent), the President may unilaterally suspend an executive agree-

ment.

E. T

ERMINATION OR

ITHDRAWAL

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 fundamen-

tal rule that a treaty may be terminated or that a party may with-

draw from a treaty in two ways: first, in conformity with the provi-

sions 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, speci-

fying 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.

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 provi-

sion 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 Vi-

enna Convention allows two exceptions to this rule. Denunciation

or withdrawal notwithstanding treaty silence on the subject is per-

mitted 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 Conven-

tion states that 12-months’ notice must be given of an intention to

denounce or withdraw from a treaty.

105

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193

106

Rest. 3d, supra, §332.

107

Vienna Convention on the Law of Treaties, supra, Article 59. The Restatement (Third) in-

dicates that the United States adheres to this view regarding the termination of an inter-

national agreement by conclusion of a later incompatible agreement. See Rest. 3d, supra, §332,

Comment e.

108

Ibid., Article 60.

The Restatement (Third) elucidates the U.S. position on the ter-

mination and denunciation of international agreements in a man-

ner that is generally in accord with Articles 54 and 56 of the Vi-

enna 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

The termination of a treaty under international law is not con-

fined to circumstances where termination is the unanimous desire

of the parties or in conformity with treaty provisions for termi-

nation. A treaty may be effectively terminated when all of the par-

ties to it conclude a later treaty on the same subject if it appears

from the latter or it is otherwise established that the parties in-

tended 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

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 repudi-

ation of the treaty or a violation of a provision essential to the ac-

complishment of any object or purpose of the treaty.

108

The Restatement’s treatment of a material breach of an inter-

national agreement as a ground for the agreement’s termination

follows closely in line with the corresponding provisions of the Vi-

enna Convention. Section 335 summarizes the U.S. position as fol-

lows:

(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

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194

109

Rest. 3d, supra, §335.

110

Vienna Convention on the Law of Treaties, supra, Article 61.

111

Ibid., Article 62.

(i) in the relations between themselves and the de-

faulting 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;

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

Impossibility of performance

The termination of a treaty may result from a supervening im-

possibility of performance, a condition that arises from the perma-

nent 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 obliga-

tion owed to any other party to the treaty.

110

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 par-

ties 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 estab-

lishes 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 inter-

national obligation owed to any other party to the treaty.

111

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

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195

112

Rest. 3d, supra, §336.

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.

115

Vienna Convention, supra, Article 64.

116

Rest. 3d, supra, §102, Comment k; and Brownlie, Ian. Principles of Public International

Law. Clarendon Press, 1990, p. 513.

117

Vienna Convention on the Law of Treaties, supra, Article 63.

(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 agree-

ment.

112

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 be-

cause 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 af-

fected by such essential change.’’

114

Jus cogens

Treaties that conflict with a newly emergent norm of inter-

national law become void as of the date the new rule of jus cogens

is recognized or determined to exist by the international commu-

nity.

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 inter-

national law in conflict with it. The condemnation of aggression in

the U.N. Charter and of genocide in the Convention on the Preven-

tion and Punishment of the Crime of Genocide are asserted to have

the character of jus cogens.

116

Severance of diplomatic relations

The Vienna Convention on the Law of Treaties provides that the

severance of diplomatic or consular relations generally does not af-

fect the legal relations of parties to a treaty. Legal relations estab-

lished by a treaty may be adversely affected, however, in cases

where diplomatic or consular relations are indispensable for the ap-

plication of the treaty.

117

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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, §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).

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, §208, Reporters’ Note 1.

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.

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 trea-

ties 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 con-

ceptual underpinnings. Therefore, whether hostilities affect ad-

versely all or some of the warring parties’ treaty relationships is

problematical.

119

The Restatement (Third) notes that court deci-

sions 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

State succession

In international law rights and obligations arising out of inter-

national 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 dis-

solution of the Soviet Union and of Yugoslavia, and the emergence

of numerous new states in recent decades has given particular ur-

gency 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 con-

fused.’’

122

As it does with respect to the effect of war on treaties, the Vi-

enna 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 ap-

proved 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 ob-

tained 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.

The standards set forth in the Vienna Convention on Succession

of States in Respect of Treaties and in the Restatement (Third)

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126

Vienna Convention on Succession of States in Respect of Treaties, supra, Article 15; Rest.

3d, supra, §210(1).

127

Ibid., Article 31 and §210(2) and Comment c.

128

Ibid., Article 16 and §210(3).

129

Ibid., Articles 34–35 and §210(3).

130

Rest. 3d, supra, §210, Reporters’ Note 4.

131

Ibid., Article 11 and §210(4).

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).

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 Re-

statement (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

(2) When two or more states unite, the Convention states

that the treaties of both continue in effect but only with re-

spect 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 distin-

guish 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 absorb-

ing state become applicable to the whole territory.

127

(3) When a former colony becomes a new state (termed a

‘‘newly independent State’’ by the Convention), both the Con-

vention 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 des-

ignated the ‘‘clean slate’’ rule.

128

(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 Restate-

ment (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 agree-

ments of the colonial power, whereas states arising from seces-

sion or dissolution purportedly did. The Restatement (Third)

rejects that distinction, contending that ‘‘it does not reflect con-

sistent practice and would be difficult to apply.’’

130

Both the convention and the Restatement (Third) provide that

pre-existing boundary and other territorial agreements continue to

be binding on successor states.

131

State practice with respect to state succession and treaty obliga-

tions 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 cir-

cumstances.

132

The Restatement (Third) notes that in practice even

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133

Rest. 3d, supra, §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 Con-

tinue 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 Amer-

ican Journal of International Law 595 (1993).

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 Commit-

tee 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 con-

stitutional 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 dis-

regarded 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 prin-

ciple. ** * [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 ini-

tially 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 with-

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 separa-

tion of Eritrea from Ethiopia.

134

F. U.S. L

AW AND

RACTICE IN

ERMINATING

NTERNATIONAL

GREEMENTS

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 ter-

mination 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 Sen-

ate regarding the termination of a treaty—President Carter’s ter-

mination of the Mutual Defense Treaty with Taiwan in 1979—the

Federal trial and appellate courts reached contrary conclusions re-

garding the requirements of the Constitution for terminating a

treaty and the Supreme Court avoided resolving the constitutional

question.

136

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draw 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 inap-

propriate 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 judi-

cial 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 rec-

ognize, 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 unre-

solved. However, it should be noted that subsequent decisions have made it difficult for Mem-

bers 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 constitutional-

ity 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 con-

stitutionality of U.S. participation in NATO’s military actions against the former Yugoslavia).

137

Rest. 3d, supra, §339. Section 339, captioned ‘‘Authority to Suspend or Terminate Inter-

national 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 terminat-

ing 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.’’

138

‘‘The President is the sole organ of the Nation in its external relations, and its sole rep-

resentative 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. ‘‘** * Con-

gress 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).

140

14 Whiteman, supra, p. 461.

141

Henkin, supra, p. 211.

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 as-

sertion 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.

In so far as domestic law and practice are concerned, two non-

controversial observations may be made with respect to the termi-

nation of an international agreement. First, as the official spokes-

person 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 agree-

ments.

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.

‘‘The procedure by which, from the viewpoint of national law and

practice, treaties may be terminated involves questions to be re-

solved 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 Philadel-

phia.’’

140

‘‘The Constitution tells us only who can make treaties for

the United States; it does not say who can unmake them.’’

141

a consequence of the Constitution’s silence in this regard, ‘‘there

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142

1 Willoughby, supra, p. 581.

143

Schwartz, The Powers of Government, v. II (1963), p. 130.

144

See Bas v. Tingy, 4 Dall. (4 U.S.) 37 (1800); Wright, The Control of American Foreign Rela-

tions, p. 256; cf. 14 Whiteman, p. 290 et seq.

145

1 Willoughby, supra, p. 585.

146

Ibid., p. 587.

147

Senator Lodge, chairman, Committee on Foreign Relations, 48 Congressional Record 587

(1911).

has been some confusion of doctrine upon this point and a variety

in practice.’’

142

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 Constitu-

tion 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 con-

sequently operates to deprive such treaty of its force as law

within this country. Under Article VI the Congress can, in ef-

fect, 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 expres-

sion of our municipal law, even though it conflicted with the

provision of the treaty and the international obligation re-

mained unaffected.’’

At the same time, it is clear that, in such a case, the inter-

national 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

In addition to effectively terminating a treaty by legislatively ne-

gating its municipal consequences, the Congress may effect a ter-

mination in other ways, such as by a declaration of war

144

or, in

the case of non-self-executing treaties, by failing to approve nec-

essary implementing legislation.

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 di-

rectly 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

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148

United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).

149

Senator Lodge, supra, note 146.

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).

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).

To the President is ascribed the role of being the ‘‘organ of for-

eign 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 recog-

nized by foreign Governments is the Executive—the President of

the United States. If he does give the notice, it will be given.’’

149

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 re-

garded as a declaration of war.

152

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 termi-

nate treaties on behalf of the United States is clear.

154

It is a

power which inheres in sovereignty and is not negated by the su-

premacy 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 justi-

fied in disregarding its engagements with another Nation is not

one for the determination of the courts ***. This court is not a cen-

sor of the morals of other departments of the government ***.’’

158

The actual practice whereby treaties have been terminated dem-

onstrates considerable variation. ‘‘In some cases treaties have been

terminated by the President, in accordance with their terms pursu-

ant to action by Congress. In other cases action was taken by the

President pursuant to resolutions of the Senate alone. In still oth-

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159

14 Whiteman, supra, p. 460.

160

V Hackworth, supra, p. 319.

161

14 Whiteman, supra, p. 462.

162

1 Willoughby, supra, p. 583.

163

Ibid.

ers the initiative was taken by the President, in some cases inde-

pendently, 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 inter-

national question or upon the preference of the Executive.’’

160

The

‘‘actual practice’’ has been summarized as follows:

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 direc-

tion, but with subsequent approval by the Congress;

Executive action without prior specific authorization or direc-

tion, but with subsequent approval by the Senate;

Executive action without specific prior authorization or direc-

tion and without subsequent approval by either the Congress

or the Senate.

161

Executive action pursuant to prior authorization or direction by the

Congress

The instances in which the Congress, by joint resolution, has au-

thorized or directed the President to terminate treaties ‘‘have been

considerable in number’’:

162

In some instances the congressional action for the denuncia-

tion of a treaty has empowered the President ‘‘at his discre-

tion’’ 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 de-

nunciation 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 pro-

visions 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

In 1846, pursuant to a request from President Polk, a joint reso-

lution 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

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203

164

9 Stat. 108 (1846).

165

38 Stat. 1164.

166

Van der Weyde v. Ocean Transport Co., 297 U.S. 114, 116 (1936).

167

Ibid., pp. 117–118.

168

Public Law 99–440, § 313 (October 2, 1987); 100 Stat. 3515; 22 U.S.C. 5063. The treaty

provided for termination upon 1 year’s notice.

same.’’

164

That convention provided for the joint occupancy of cer-

tain parts of the Oregon Territory. Similarly, the Seaman’s Act of

March 4, 1915

165

requested and directed the President to give no-

tice 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 for-

eign Governments will terminate on the expiration of such periods

after notices have been given as may be required in such treaties

and conventions.’’

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 ter-

minating 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 faith-

fully executed, to reach a conclusion as to the inconsistency be-

tween the provisions of the treaty and the provisions of the new

law.’’ The court did not opine on whether the language of the stat-

ute was binding, but stated simply that the President was obli-

gated to distinguish between consistencies and inconsistencies in

foreign treaties and the law in question. Moreover, the court ex-

pressly 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 con-

gressional action, or of action by the treatymaking power, to de-

nounce a treaty of the United States is not here involved.’’

167

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

The propriety of congressional action advising or directing the

President to notify foreign governments of the termination of trea-

ties between them and the United States has not gone unchal-

lenged. 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 ad-

vising 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

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169

1 Willoughby, supra, p. 584.

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.’’

171

Ibid., p. 319.

172

Techt v. Hughes, 229 N.Y. 222, 243 (1920).

173

Congressional Globe, 33d Cong., 2d Sess. (1855), pp. 414–415.

174

Ibid., 34th Cong., 1st Sess. (March 6, 1856), pp. 599–607.

amendment of a treaty, a competent exercise of authority under the

Constitution.’’

169

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 discrimi-

natory 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 atten-

tion to the veto by President Hayes of an Act passed by Con-

gress 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

Executive action pursuant to prior authorization or direction by the

Senate

The Department of State has taken the position that the prin-

cipals 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 ju-

dicial recognition: ‘‘The President and Senate may denounce the

treaty and thus terminate its life.’’

172

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 ini-

tiative 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 con-

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205

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).

177

See 61 Congressional Record 1794 (May 26, 1921) (letter of April 12, 1920, from D.F. Hous-

ton, Secretary of the Treasury, to the Secretary of State).

178

V Hackworth, supra, p. 322.

179

5 Moore, supra, p. 323.

180

37 Stat. 627 (1911); V Hackworth, pp. 319–320; 1 Willoughby, p. 582.

stitutionally 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 be-

tween the Governments and as a law of the land.’’

175

The Senate,

subsequently, had an extensive debate on the report and on a reso-

lution reported by the committee endorsing that view,

176

but the

resolution never came to a final vote.

This procedure has been used on subsequent occasions. In 1921,

for instance, President Wilson sought the Senate’s advice and con-

sent to the denunciation of the International Sanitary Convention

of 1903. That convention had been superseded by a 1912 conven-

tion but remained in force for those parties which had not ratified

the latter convention. The Public Health Service believed that situ-

ation to ‘‘prevent the enforcement of measures necessary for the

prevention of diseases from abroad’’ and said that it would be ‘‘infi-

nitely 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

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 Lon-

don 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, with-

out 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

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

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181

48 Congressional Record 455 (1911).

182

Ibid., p. 480.

183

V Hackworth, supra, pp. 330–331.

184

Ibid., pp. 329–332.

185

Henkin, supra, p. 212.

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 noth-

ing unusual in this action.

181

***

The Senate and the President alone can end an existing trea-

ty by simply agreeing to a new one, they can do it without any

consultation with any other body, and certainly where no legis-

lation is involved it seems to me that those who represented

the high contracting party in the making of a treaty are capa-

ble of representing the high contracting party in its

unmaking.

182

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 Depart-

ment 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 ac-

tion.’’

183

Hackworth gives a number of other examples of the

‘‘President acting alone,’’ including the terminations of a 1926 con-

vention 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 Naviga-

tion with Italy in 1936; and a 1911 commercial treaty with Japan

in 1939.

184

Henkin adds to the list President Roosevelt’s termi-

nation of an extradition treaty with Greece in 1933 because Greece

had refused to extradite a particular fugitive (Mr. Insull).

185

Presi-

dent Johnson in 1965 gave notice of the withdrawal of the United

States from the Convention for the Unification of Certain Rules Re-

lating to International Transportation by Air (the Warsaw Conven-

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186

49 Stat. 3000; TS 876; 2 Bevans 983.

187

See Senate Foreign Relations Committee Print, Termination of Treaties: The Constitu-

tional Allocation of Power (1978), pp. 397–398, for additional examples given by the Department

of State Legal Adviser.

188

92 Stat. 730, 746 (1978).

189

U.S. Congress. House. Committee on Foreign Affairs. Congress and Foreign Policy, 1985–

1986 (99th Cong.), p. 7.

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 Of-

fice, 1906, pp. 608 et seq. A century later, Congress’ action was held to have effectively termi-

nated 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).

tion),

186

although he subsequently withdrew it 1 day before the de-

nunciation would have taken effect.

187

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 author-

ization 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 De-

fense Treaty of 1954.’’

188

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 Eco-

nomic Powers Act. These sanctions included notification of the in-

tent to terminate the Treaty of Friendship, Commerce, and Naviga-

tion with Nicaragua. After the required waiting period of 1 year,

the treaty was terminated.

189

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 stipu-

lations 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 Con-

gress 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

The arguments in support of the respective claims of the Presi-

dent 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. Constitu-

tion, that is, to the distinction between a treaty as an international

compact, and, under American law, as domestic law. Arguments on

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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.

195

Rest. 3d, supra, §339, Comment a (emphasis added).

196

Public Law 99–440, supra, note 167, §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 di-

rected 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 en-

actment. Upon suit challenging the Secretary’s revocation of the permit of South African Air-

ways 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).

behalf of Presidential claims focus prominently on his preeminent

position in foreign affairs.

194

EXECUTIVE AGREEMENTS

As indicated at various points in the foregoing discussion, the

President’s authority to terminate executive agreements, in par-

ticular sole executive agreements, has not been seriously ques-

tioned 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 stat-

ute 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

In the Comprehensive Anti-Apartheid Act of 1986 Congress man-

dated the termination, in accordance with its provisions, of an exec-

utive 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 Afri-

ca Relating to Air Services Between Their Respective Terri-

tories.

196

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(209)

Prepared by Marjorie Ann Browne, Specialist in International Relations and Lois B.

McHugh, Analyst in International Relations.

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.

Ibid.

X. CONGRESSIONAL OVERSIGHT OF

INTERNATIONAL AGREEMENTS

A major problem for the legislative branch in the foreign policy

area has been the tendency of the executive branch to make impor-

tant 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 proc-

ess which will ensure that important U.S. commitments are made

with legislative approval.

The primary tools available to Congress for its oversight of inter-

national agreements, especially international agreements other

than treaties, start with the Case-Zablocki Act on transmittal of

international agreements other than treaties.

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 as-

pect of international agreements; consultation between Members or

congressional staff and appropriate executive branch officials; and

hearings. This chapter discusses these and other tools for congres-

sional oversight.

A. T

ASE

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 con-

gressional efforts.

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210

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.

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.

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.

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 distrib-

ute 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 in-

clude:

all treaties to which the United States is a party that have

been proclaimed since the date of the adjournment of the regu-

lar session of Congress next preceding; all international agree-

ments 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;

In practice, a number of agreements escaped publication. In

1909, the Senate, in S. Res. 252, 60th Congress, authorized prepa-

ration, 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 pertain-

ing 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 collec-

tion of U.S. treaties and international agreements covering that pe-

riod.

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.

In 1950, when the function of publishing the U.S. Statutes at

Large was transferred from the Secretary of State to the Adminis-

trator of General Services, Congress required the Secretary to pub-

lish, starting January 1, 1950,

a compilation entitled ‘‘United States Treaties and Other Inter-

national 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

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64 Stat. 980; 1 U.S.C. §112a.

89 Stat. 296.

Federal Register, October 23, 1995: 54319.

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 pri-

vate 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.’’

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.

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 re-

quested in writing.

The inability of the State Department to publish promptly inter-

national 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.

Section 138 of the Foreign Relations Authorization Act, Fis-

cal Years 1994 and 1995 (Public Law 103–236) which authorized

the Secretary of State to determine that certain categories of inter-

national agreements do not require publication.

Based on the cri-

teria set forth in section 138, the Secretary of State issued a pro-

posed 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:

(1) Bilateral agreements for the rescheduling of intergovern-

mental 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 gov-

erning technical arrangements;

(4) Bilateral agreements that apply to specified military ex-

ercises;

(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 clas-

sification pursuant to Executive Order No. 12958 or its succes-

sors; and (b) Agreements on the subjects listed in paragraphs

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212

See below, Impact and Assessments of the Case Act, for additional discussion of transmittal

problems.

(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.

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 Con-

stitution might be altered by treaty; (2) that the President might

‘‘legislate’’ by international agreement or executive agreement with-

out Senate approval; (3) that the Federal government might ac-

quire through treaties the power to legislate in areas primarily

within the jurisdiction of the States; and (4) that treaties might ac-

quire Senate approval by a vote of only a small number of Mem-

bers present. These concerns grew out of the foreign policy activism

of the executive branch during and since World War II. Some Mem-

bers 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 Sen-

ate or with Congress. Others were concerned that active U.S. par-

ticipation in the United Nations and U.N.-affiliated agencies might

lead to U.S. adherence to treaties and agreements that would con-

travene or abrogate such U.S. constitutional principles as the re-

served powers of the States and the fundamental freedoms guaran-

teed 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 trea-

ties 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 organiza-

tion. Additionally, the amendment would have made any provision

of a treaty invalid if it conflicted with the Constitution and an exec-

utive agreement effective in domestic law only through passage of

enacting legislation. Debate on the Senate floor in January–Feb-

ruary 1954 centered around three versions of the Bricker legisla-

tion: 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 ver-

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213

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. Presi-

dential 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 Con-

gressional Quarterly Almanac for the year of interest.

U.S. Library of Congress. Legislative Reference Service. The Bricker Amendment and Simi-

lar Proposals for Amending the Treaty Provisions of the Constitution. By Hugh P. Price, Dec.

2, 1964.

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.

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.’’

sion was agreed to as a substitute for the Republican leadership

amendment. The same day, the George version of the proposed con-

stitutional amendment failed to pass the Senate with the required

two-thirds majority by one vote.

Support in the Congress for this type of limitation faded through

the 87th Congress (1961–1962) and disappeared in the 89th Con-

gress (1965–1966).

Senator Bricker introduced a version of his

1953 resolution in the 84th Congress (1955–1956) and the Sub-

committee on Constitutional Amendments of the Senate Judiciary

Committee held hearings in April and May 1955 that generated a

1016-page record.

The full committee did not report the resolu-

tion 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 commit-

tee. 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.

In 1985 one of the fundamental issues of the Bricker amendment

debate was revived—the question of the supremacy of the Constitu-

tion over treaties. At the initiative largely of Senator Helms, the

Senate included the following language as a reservation in its reso-

lution 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 con-

dition not only to other human rights treaties but also to those con-

cerning 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, how-

ever, 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.

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 coun-

tries. During August 1966 and February and March 1967, the Pre-

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214

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 Secu-

rity Agreements and Commitments Abroad. United States Security Agreements and Commit-

ments 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)

U.S. Congress. Senate. Committee on Foreign Relations. Subcommittee on United States Se-

curity 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.

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

paredness 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 be-

fore 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.

Meanwhile, on June 25, 1969, the Senate passed a national com-

mitments 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 Presi-

dent since it was not legislation, as was the War Powers Resolu-

tion. As a statement of Senate policy, however, the resolution es-

tablished a guidepost that might be used in tracking future presi-

dential 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 execu-

tive agreements in the making of national commitments. The sub-

committee 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 ses-

sion, be informed on the progress of negotiations to this end.

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 Serv-

ices Committees and to the House Foreign Affairs and Senate For-

eign Relations Committees on U.S. security arrangements with,

and commitments to, other nations.

The fundamental concern of

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215

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 as-

sessment of the need to continue, modify, or discontinue each of those arrangements and com-

mitments in view of the changing international security situation. See Chapter XI, for discussion

of the 1992 report.

Senate Report 101–384, p. 238 (101st Cong., 2d Sess.).

Ibid., p. 28.

Ibid., p. 20.

Fulbright, James W. Spanish Bases. Congressional Record vol. 129, part 20, July 31, 1970:

28791.

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 appro-

priate that a review be done to determine whether or not these

commitments were ‘‘still necessary in the changing international

environment.’’

This report was transmitted to the required com-

mittees in 1991 and 1992.

Military base agreements (Spain, Portugal, Bahrain)

Another recommendation of the Symington Subcommittee urged

that Congress ‘‘take a realistic look at the authority of the Presi-

dent to station troops abroad and establish bases in foreign coun-

tries.’’

Referring to a practice of ‘‘creeping commitment,’’ the sub-

committee observed that

Overseas bases, the presence of elements of United States

armed forces, joint planning, joint exercises, or extensive mili-

tary assistance programs represent to host governments more

valid assurances of United States commitment than any treaty

or executive agreement.

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.’’

December 11, 1970, the Senate agreed to S. Res. 469 (91st Con-

gress), expressing the sense of the Senate that nothing in the exec-

utive 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 Sen-

ate. 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 final-

ized in May 1982.

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

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216

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.

continued use of support facilities in Bahrain. In response to this

action, several members of the Senate Foreign Relations Commit-

tee introduced S. Res. 214, that any agreement with Portugal

‘‘should be submitted as a treaty to the Senate for advice and con-

sent.’’ 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 re-

porting 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 con-

tinued, raised ‘‘important foreign policy questions’’ and the ‘‘sub-

mission of these agreements as treaties *** is the best and most

appropriate way’’ of scrutinizing these questions.

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 agree-

ments to their being submitted as treaties.

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, spear-

headed by Senator Sam Ervin, was a requirement that all inter-

national agreements other than treaties be transmitted to Congress

60 days before their entry into force. Congress would have the op-

portunity to adopt a resolution of disapproval before the expiration

of the 60-day waiting period. In the absence of a disapproval reso-

lution, 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 Subcommit-

tee of the Senate Judiciary Committee, reintroduced the legislation

in 1973 (S. 1472, 93d Congress) and, in 1974, in S. 3830 (93d Con-

gress), 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 pro-

cedures 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 Sub-

committee holding 4 days of hearings in May and July 1975 on S.

632 and S. 1251 (94th Congress). The House International Rela-

tions Committee (the House Foreign Affairs Committee), in 1976,

held 6 days of hearings on similar legislative proposals (H.R. 4438).

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217

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.

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.

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: Or-

dered 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: Pub-

lic 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.

U.S. Congress. Senate. Committee on Foreign Relations. Transmittal of Executive Agree-

ments to Congress. Report to accompany S. 596. S. Rept. 92–591, 92d Cong., 2d Sess. Washing-

ton, U.S. Government Printing Office, 1972, p. 5.

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.

No further legislative action, beyond the hearings, was taken on

any of these proposals.

INTENT AND CONTENT OF THE CASE ACT

In response to the secret agreements uncovered during the Sy-

mington Subcommittee hearings, Senator Clifford P. Case in De-

cember 1970, introduced the legislation that became the Case-Za-

blocki Act. Senator Case recalled that an earlier version of the leg-

islation 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.

Senator Case revised

the Ferguson-Knowland bills to include the House. He reintroduced

the legislation in February 1971 as S. 596, and it successfully pro-

ceeded through the legislative process to become Public Law 92–

403.

House companion bills had been introduced in April 1972 by

Representatives Clement Zablocki and Charles Whalen.

The Case Act requires the executive branch to keep Congress in-

formed 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 obli-

gation of the executive to report its foreign commitments to Con-

gress.’’

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.’’

The act was not retroactive and required transmittal only of

agreements made after the legislation took effect. The Senate re-

port noted that the committee expected the executive branch to

make all such previously enacted agreements available to the Con-

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218

Case, Clifford P. Cooperation of Department of State under Public Law 92–403. Congres-

sional Record, vol. 119, part 16, June 18, 1973: 1974.

gress or its foreign affairs committees at their request and in ac-

cordance with the procedures defined in the bill.

As originally enacted, the law had two provisions. First, it re-

quired the Secretary of State to transmit to Congress the text of

any international agreement other than a treaty as soon as prac-

ticable but no later than 60 days after it entered into force. Second,

those agreements which the President determined should be classi-

fied 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 inter-

national agreement other than a treaty within 60 days after its

entry into force. Implementation of this obligation started imme-

diately and satisfactorily. However, Senator Case, concerned over

Administration inferences during Senate consideration of the legis-

lation 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 ‘‘Trea-

ties 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 compila-

tion.

On the question of the kinds of agreements that would be submit-

ted, the Legal Adviser reported that the ‘‘Department considers

that the Case Act is intended to include every international agree-

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219

Ibid.

ment, 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.’’

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 independ-

ent agencies in the United States and their foreign counter-

parts;

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.

Senator Case added that this list should not be considered all in-

clusive and did not preclude Congress receiving other types of

agreements.

Finally, the Department of State also agreed to provide to Con-

gress certain material requested by the Chairman of the Foreign

Relations Committee, Senator William Fulbright, concerning classi-

fied agreements. Senator Fulbright had requested that ‘‘each classi-

fied executive agreement transmitted to the committee be accom-

panied by an explanation of the agreement, background informa-

tion on its negotiations, and a statement of its effect.’’ The Congres-

sional Relations office of the Department of State indicated its will-

ingness to ‘‘provide the information *** requested,’’ concluding ‘‘we

are initiating immediately the steps necessary to insure that classi-

fied agreements transmitted *** under the Act will be accom-

panied by appropriate background information.’’

Earlier in 1973, the General Accounting Office (GAO) found that

executive branch agencies had concluded U.S. executive agree-

ments 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 per-

formance requiring expenditure of substantial amounts of

money.

—Require a central repository to be established within the

State Department for all such international agreements, ar-

rangements, and commitments, similar to the one now in exist-

ence for treaties.

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220

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 di-

gest furnished in lieu of a report containing classified security information.

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.

Treaties and Other International Agreements; Notice of Proposed Rulemaking. Federal Reg-

ister, v. 38, no. 157, August 15, 1973: 22084f.

—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.

This report highlighted the need to ensure that the State Depart-

ment 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 concern-

ing the State Department’s obligation under the Case Act to trans-

mit all agreements to the Congress. In part, the letter read,

it seems clear that texts should be transmitted to the Depart-

ment 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 be-

yond a fiscal year or would be a basis for requesting new ap-

propriations, and any that involve continuing or substantial co-

operation 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 gen-

eral, 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 dis-

cussion 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.

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 pro-

posed revision, incorporating changes reflecting the Case Act obli-

gations, 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.’’

Congressional concerns over gaps in the transmittal of agree-

ments and lack of clarity over what constituted an executive agree-

ment persisted in 1974 and 1975. In April 1975, Senator James

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221

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)

Abourezk, chairman of the Senate Judiciary Committee’s Sub-

committee 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.

In response, the Department of State circulated to

ALL DIPLOMATIC POSTS an airgram dated March 9, 1976, out-

lining ‘‘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 simi-

lar letter, under the same title, was sent to Key Department Per-

sonnel on March 12, 1976.

One of the concerns expressed at the time the Case Act was en-

acted was the quantity of agreements to be transmitted. Initial dis-

cussions 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 consulta-

tions on agreements that might not be transmitted. The prolifera-

tion of transmitted agreements was especially large for those nego-

tiated by the Agency for International Development (AID). Accord-

ing to the Legal Adviser, many of the agreements were for rel-

atively small amounts of money and AID already reported regu-

larly to Congress on its activities and programs. In a letter to For-

eign 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 Con-

gress pursuant to the Case Act any international agreement or

amendment thereto entered into by the Agency for Inter-

national Development with a foreign government or inter-

national 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 amend-

ment 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

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222

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.

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.

Section 708, Public Law 95–426, 92 Stat. 993, approved October 7, 1978.

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 actual language is ‘‘Not later than March 1, 1979, and at yearly intervals thereafter.’’

Assistance Act of 1961, as amended, will be submitted pursu-

ant to the Case Act ***.

The amount was subsequently raised from $1 million to $25 mil-

lion.

AMENDMENTS OF THE CASE ACT

1977

–

1978

After nearly 5 years’ experience with the Case Act, some limita-

tions 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 en-

ters 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.

The amendment was intended to ensure, by law, that the Depart-

ment of State would receive agreements made by other agencies in

a timely manner and thus be able to transmit them to the Con-

gress 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 organiza-

tions and to set forth in U.S. statute the obligations of the execu-

tive branch relative to international agreements other than trea-

ties. They were added in the Foreign Relations Authorization Act,

Fiscal Year 1979.

The first amendment included ‘‘any oral inter-

national agreement’’ within the coverage of the Act, stipulating

that oral agreements must be ‘‘reduced to writing.’’ The Foreign Re-

lations 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.’’

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 re-

quired that the President send to Congress annually

a report on

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223

The citation for the 1981 report is 97th Cong., 2d Sess., House Document No. 97–148. 12

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.

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 rea-

sons 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 transmit-

tals were in late March and early April, respectively. The report

covering 1981 was published as a House Document, thereby in-

creasing the availability of the information.

This was a one-time

occurrence.

The third amendment required that no agreement be signed or

concluded by any agency in the executive branch without prior con-

sultation with the Secretary of State. The purpose of this amend-

ment was to ensure that the Secretary of State was aware of agree-

ments 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. Gov-

ernment 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.

They outline the procedures to be fol-

lowed by all agencies in consulting with the Secretary of State be-

fore concluding an international agreement and the procedures to

be followed by the State Department in transmitting executive

agreements to Congress.

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 in-

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224

Information from Office of Assistant Legal Adviser for Treaty Affairs, Department of State,

February 1993.

Information in this section was verified in interviews with committee staff in January 2001.

After 1994, the House Committee on Foreign Affairs was renamed the House Committee

on International Relations.

volve continuing and/or substantial cooperation in the conduct

of a program or activity;

3. The agreement must be specific enough in the undertak-

ing 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, implement-

ing 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 agree-

ment (whether treaty or executive agreement); procedures for en-

suring that an agreement or class of agreements is consistent with

U.S. foreign policy objectives; adherence to the 20-day rule for con-

cluded agreements; and materials required to be transmitted to the

Congress.

According to Department of State officials, the process of gather-

ing the background information desired by Congress and supplying

an official copy of the agreement often takes the full 60 days speci-

fied by the Case Act.

In 1994, Congress amended the publication section of 1 U.S.C.

112a, authorizing the State Department not to publish certain cat-

egories of agreements after February 26, 1996. See supra, this

chapter, first section.

COMMITTEE PROCEDURES UNDER THE CASE ACT

Since the passage of the Case Act, the Senate Foreign Relations

and House International Relations Committees have developed pro-

cedures for consulting, receiving, and using the executive agree-

ments transmitted to Congress under the Case Act.

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 agree-

ments are sent directly to the two committees.

Senate Foreign Relations Committee procedures

After being transmitted to the President of the Senate, the un-

classified agreements are informally referred to the Parliamen-

tarian 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 Con-

gressional Record the next day. The transmission is listed in the

committee calendar, with the Executive Communication (EC) num-

ber 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

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225

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 commit-

tee information system office (1) maintains a data bank that facili-

tates 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 com-

mittee 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 re-

ceived; information on the country and subject matter is not in-

cluded 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 com-

munication number. Appropriate staff are notified of the receipt of

specific agreements, the texts of which are maintained in commit-

tee 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. Classi-

fied executive agreements are recorded in a log with other execu-

tive 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 For-

eign 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 unpredict-

able (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 addi-

tion, 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 prob-

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226

For comprehensive data on the conclusion of treaties and executive agreements, see Chapter

II above.

lems 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 in-

crease in the number of executive agreements reported as con-

cluded on behalf of the United States. See Table II–2, in Chapter

II, especially the figures for 1976–1978.

This phenomenon

brought to both the committees and the State Department the

problems of processing such a large number of agreements. Con-

sultations among all involved resulted in a decision that certain

agreements made by the Agency for International Development

would not be transmitted (see discussion 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 exclu-

sion of 60 to 80 Public Law 480, Title I agreements concluded an-

nually (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

Year

Covered

Total

Trans-

mitted

Total Late Late Agreements, Agency of Origin

Num-

ber

Per-

cent

State

Other Agencies

Total

From

Posts Total

1978 520 132 25.4 45 (includes 1 classi-

fied)

? 87 (includes 3 classified)

1979 355 46 13 19 (includes 1 classi-

fied)

7 27 (includes 2 classified:

DOD)

1980 320 43 13.4 24 (includes 2 classi-

fied)

9 19 (includes 1 classified:

DOD)

1981 368 99 27 69 (includes 2 classi-

fied)

19 30 (includes 1 classified:

DOD)

1982 372 84 23 44 (includes 1 classi-

fied)

13 40 (includes 6 classified:

DOD, 5; Treasury, 1)

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227

Table X–1.—Transmittal of Executive Agreements to Congress, 1978–1999—

Continued

Year

Covered

Total

Trans-

mitted

Total Late Late Agreements, Agency of Origin

Num-

ber

Per-

cent

State

Other Agencies

Total

From

Posts Total

1983 335 71 21.2 39 (includes 1 classi-

fied)

21 32 (includes 0 classified)

1984 369 69 18.7 45 (includes 5 classi-

fied)

27 24 (includes 5 classified:

DOD, 1; USAF, 2;

Treasury, 2)

1985 343 88 25.7 39 (includes 2 classi-

fied)

25 49 (includes 8 classified:

DIA, 3; NRC, 2; DOD, 1;

USN, 2)

1986 383 65 17 32 (includes 1 classi-

fied)

25 33 (includes 3 classified:

DIA, 1; DOD, 1; Treas-

ury, 1)

1987 396 57 14.4 35 (includes 2 classi-

fied)

26 22 (includes 2 classi-

fied)

1988 412 79 19.2 39 (includes 2 classi-

fied)

26 40 (includes 7 classi-

fied)

1989 344 55 16 38 (includes 2 classi-

fied)

22 17 (includes 4 classi-

fied)

1990 364 51 14 23 (includes 1 classi-

fied)

18 28 (includes 10 classi-

fied)

1991 280 30 11 18 (includes 0 classi-

fied)

8 12 (includes 1 classi-

fied)

1992 296 56 18.9 38 (includes 0 classi-

fied)

19 18 (includes 8 classi-

fied)

1993 243 45 18.5 26 (includes 0 classi-

fied)

12 19 (includes 10 classi-

fied)

1994 313 27 8.6 15 (includes 1 classi-

fied)

10 12 (includes 0 classified)

1995 276 29 10.5 11 (includes 0 classi-

fied)

8 18 (includes 6 classified:

Treasury, 5; DIA, 1)

1996 225 41 18 28 (includes 3 classi-

fied)

11 13 (includes 5 classified:

DIA, 3; Navy, 2)

1997 212 29 13.6 18 (includes 0 classi-

fied)

7 11 (includes 1 classified:

DIA)

1998 199 18 9 12 (includes 0 classi-

fied)

4 6 (includes 0 classified)

1999 166 31 18.6 18 (includes 3 classi-

fied)

9 13 (includes 4 classi-

fied)

1993–

1999

Subtotals

1634 220 13.5 128 61 92

Totals—

all years

7091 1245 17.5 675 (54.2% of total

late)

326 570 (45.8% of total late)

Total includes those which are classified and/or late from posts.

Agencies not identified.

One tool for determining when transmitted agreements are sig-

nificantly more important than others is the background statement

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228

See above, under Implementation, 1972–1976.

22 CFR 181.7, see Appendix, infra.

The report for 1978, the initial report, did not include an agency breakdown on the 87 un-

classified agreements received late from other agencies.

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 in-

cluded the requirement for a background statement for each classi-

fied agreement.

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 pre-

cise citation of legal authority.’’

These statements can be useful

in setting a context for committee staff and members.

Late transmittal of Case Act agreements

The number of agreements which were not transmitted to Con-

gress within the 60-day time limit is still a source of concern al-

though the numbers are notably lower in recent years than in ear-

lier 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 per-

cent 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 agree-

ments transmitted late, were transmitted late to the State Depart-

ment from other executive branch agencies. In comparison, for the

period 1993–1999, 128 or 58.2 percent of the 220 agreements trans-

mitted 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. Govern-

ment.

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 re-

quired 60 days after entry into force.

This does not include classi-

fied 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 Commis-

sion (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)

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229

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 arrange-

ments that eliminated many of the classes of agreements initially

required for submittal.

Table X–2.—Agencies Submitting Agreements Late, 1979–1999

Name of Agency

Number of

Agreements

Number of

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

........................................................ 13 7

Department of the Air Force ....................................................... 8 7

U.S. Postal Service

................................................................... 12 6

National Science Foundation ...................................................... 11 5

National Aeronautics and Space Administration ....................... 14 5

Peace Corps ................................................................................ 5 5

Department of the Interior

....................................................... 4 4

Defense Mapping Agency

......................................................... 5 4

Department of Justice

.............................................................. 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

................................................. 4 3

Department of Transportation

.................................................. 5 3

Department of the Army ............................................................. 3 3

Department of Commerce

......................................................... 2 2

Defense Security Assistance Agency .......................................... 2 2

U.S. Customs Service .................................................................. 3 2

Department of Health and Human Services

............................ 2 1

General Services Administration

.............................................. 1 1

National Bureau of Standards (NIST)

...................................... 1 1

National Oceanographic and Atmospheric Administration

...... 1 1

U.S. Coast Guard

...................................................................... 1 1

Department of Labor

................................................................ 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

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

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230

See discussion of nonbinding agreements and functional equivalents in Chapter III above.

U.S. Congress. House. Committee on Foreign Affairs. International Terrorism: A Compila-

tion of Major Laws, Treaties, Agreements, and Executive Documents. Report Prepared by the

Congressional Research Service, Library of Congress, July 1991. Washington, U.S. Government

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 for-

warded 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 agree-

ments, as appropriate, received late from the depositary govern-

ment or organization. The earlier reports, for 1978–1981, often in-

cluded 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 de-

scribe ‘‘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 obtain-

ing 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 meet-

ing the deadlines for transmittal might be discussed, with some eq-

uitable resolution achieved.

Insufficient transmittal of agreements to Congress

One category of agreement that may contribute to confused ex-

pectations 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.

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.

Another example is the 1978 Bonn Declaration on International

Terrorism, which did not take the form of an international agree-

ment but was supported by assurances from the governments in-

volved 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.

Later statements en-

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231

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.

U.S. Department of State. Office of the Coordinator for Counterterrorism. Patterns of Global

Terrorism: 1991. Washington, 1992. pp. 7–11, 14–15.

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, Nonprolifera-

tion.

In the nuclear supplier area, two arrangements exist. The first, the Nuclear Exporters Com-

mittee (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 Arti-

cle 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 guide-

lines. 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 Aus-

tralian 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 Eco-

nomic 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, Nonprolifera-

tion, pp. 45–46, 49–51)

dorsed the Bonn Declaration and Tokyo Statement and referred

generally to the cooperative efforts under way by the Summit coun-

tries. Illustrative of the coordination and cooperation that devel-

oped under this framework were the actions by many West Euro-

pean countries to expel diplomats and staff of Iraqi Embassies and

other Iraqi offices and other potential saboteurs and terrorists dur-

ing the Persian Gulf war.

The collaboration initiated in response

to the Bonn and Tokyo documents might be said to have contrib-

uted to the success in preventing massive and significant acts of

terrorism in coalition countries.

Another subject area where nonbinding agreements or arrange-

ments play a significant role is multilateral nonproliferation re-

gimes.

In these instances, a number of supplier nations have de-

cided to meet on a more or less regular basis to draft and approve

guidelines under which the participating nations will limit or re-

strict their export of agreed upon materials. No formal and publicly

accessible documentation appears to be available, either on the es-

tablishment 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.

The participating countries, however, often

behave as though a real commitment exists. Since the Case Act re-

quires that all agreements other than treaties be transmitted and

that oral agreements be put into writing, and establishes a proce-

dure 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.

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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.’’

7 U.S.C. 1701 (b)

This information is based on discussions with the Office of Assistant Legal Adviser for Trea-

ty Affairs and with CRS specialists covering Public Law 480 aid.

See discussion of AID agreements above under Implementation, 1972–1976.

U.S. Congress. Senate. Committee on Foreign Relations. Transmittal of Executive Agree-

ments to Congress. Report to accompany S. 596. Washington, U.S. Government Printing Office,

1972, p. 4 (92d Cong., 2d Sess. S. Rept. 92–591.)

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 congres-

sional reform of the Agricultural Trade Development and Assist-

ance Act of 1954, Title I of Public Law 480.

The reinterpretation

was based on language changes in the 1990 farm act that author-

ized the Secretary of Agriculture rather than the President to ‘‘ne-

gotiate and execute agreements *** to finance the sale and expor-

tation of agricultural commodities ***.’’

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 agree-

ments formerly transmitted under the Act annually and lowered

the number of agreements transmitted in 1991 (see Table X–1

above).

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 cred-

its provided. The two committees may decide to initiate consulta-

tions 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 cir-

cumstances.

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 agree-

ments, they were also to be provided if requested in the same man-

ner as Case Act agreements.

The only instance remembered by

International Relations and Foreign Relations committee staff in

which a Member of Congress had asked for pre-Case Act agree-

ments was Senator Jesse Helms’ request for the texts of all ex-

changes 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

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233

Helms, Jesse. The Kennedy-Khrushchev Accords—Do They Exist? Congressional Record,

vol. 129, part 20, October 20, 1983: 28791.

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.

Department Releases Kennedy-Khrushchev Correspondence on Cuban Missile Crisis. State-

ment, January 6, 1992. U.S. Department of State Dispatch, January 13, 1992: 29. The full ex-

change of correspondence was published in Problems of Communism, Special Edition, v. 41,

Spring 1992 (A bimonthly publication of the United States Information Agency.)

changed the original understandings and that these have not been

made available to the committee.

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 de-

scribed as an understanding by each country of the intentions of

the other country toward Cuba, but not an agreement on conduct

of either.

Since 1962, U.S. and Soviet representatives met several

times and agreed that they would abide by the intentions ex-

pressed 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.

These

additional letters were not transmitted to Senator Helms since they

were not viewed as agreements under international law.

B. C

ONSULTATIONS ON

ORM OF

GREEMENT

A second major problem for Congress has been to ensure that the

most important international agreements have the status of trea-

ties or are authorized by the entire Congress. The Senate particu-

larly 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 Commit-

tee in 1976 and 1978 considered a measure, referred to as the

Treaty Powers Act, by which the Senate, through passage of a sim-

ple (one-House) resolution requiring the submission of a particular

international agreement as a treaty, could prevent funding to exe-

cute 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

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U.S. Congress. Senate. Committee on Foreign Relations. International Agreements Con-

sultation 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.)

Ibid.

These guidelines are generally referred to as the Circular 175 procedures of December 13,

1955. The text can be found in Appendix 4.

wrote to then Chairman of the Senate Foreign Relations Commit-

tee 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.

In his reply, Senator Sparkman indicated that he hoped the con-

sultation would take place concerning agreements negotiated by

the Department of State as well as those negotiated by other de-

partments and agencies.

In current practice, the list of agreements is selective, chosen by

the administration based on its perception of the interests of Con-

gress. In making the selection, the State Department takes into ac-

count the agreement’s importance to Congress in the view of the

agency negotiating the agreement, the significance of the agree-

ment, and the political importance of the country. In addition, on

occasion the Treaty Office has consulted informally with Inter-

national Relations or Foreign Relations Committee staff on the ap-

propriate 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 con-

tained in Circular 175 procedures (Section 721.4). These are the

Department’s internal procedures for negotiating and signing trea-

ties and executive agreements, contained in Chapter 700, volume

11 of the Department of State’s Foreign Affairs Manual, most re-

cently revised in 1985.

Among its objectives, the 1985 revision in-

cluded ‘‘timely and appropriate consultation’’ with Congress on

treaties and other international agreements, and compliance with

the Case Act.

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

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235

A search of the computerized U.S. Code to identify laws with some combination of ‘‘inter-

national 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.

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 con-

sideration 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 en-

actment 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 con-

cluding a routine or short-term agreement; and

8. The general international practice as to similar agree-

ments.

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 commit-

tees 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 Re-

lations, advise the appropriate congressional committees and lead-

ers of the intention to negotiate significant new international

agreements, consult them concerning the agreements, and keep

them informed of negotiating developments affecting Congress, es-

pecially the need for implementing legislation. Where any espe-

cially 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 nego-

tiated procedure under which the two foreign affairs committees

are to be consulted over the appropriate form for proposed agree-

ments.

C. C

ONGRESSIONAL

EVIEW OR

PPROVAL OF

GREEMENTS

Congress has sometimes established an oversight role by requir-

ing in legislation that certain categories of agreements be transmit-

ted to it. Table X–3 describes the statutory provisions of this na-

ture. This list is not comprehensive, but represents the main provi-

sions in the U.S. Code requiring agreements to be sent to the Con-

gress.

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236

Table X–3.—Statutory Requirements for Transmittal of Agreements to Congress

Title of Act and Public Law Citation [U.S.C.] Subject of Agreement

Transmittal Be-

fore or After Entry

into Force?

Approval Re-

quired for Entry

into Force? How?

Disapproval Pro-

visions? How?

Specified Recipi-

ents of Agree-

ments

Are Congressional

Procedures Set

Forth?

Atomic Energy Act of 1954, as amended

(P.L. 83–703); Sections 123 & 130

(g),(h) & (i) [42 U.S.C. 2153 & 2159 (g),

(h), & (i)].

Nuclear Cooperation

Agreements.

Before; 30-day

waiting pe-

riod.

Yes; Joint Reso-

lution.

Yes; Joint Reso-

lution.

SFRC, HFAC

... Yes, general

provisions

Atomic Energy Act of 1954, as amended

(P.L. 83–703); Sections 91c, 144 b or c;

and Sections 123 & 130 (g), (h), & (i)

[42 U.S.C. 2153 & 2159 (g), (h) & (i)].

Nuclear Cooperation

Agreements relating

to defense materials

or military uses.

Before; 60-day

waiting pe-

riod.

Yes; Joint Reso-

lution.

Yes; Joint Reso-

lution.

SFRC, HFAC,

HASC, SASC.

Yes, general

provisions

Fishery Conservation and Management Act

of 1976, as amended (P.L. 94–265) Sec-

tion 203 [16 U.S.C. 1823].

International Fisheries

Agreements (GIFAs).

Before; 60-day

waiting pe-

riod.

No; will enter

into force if

No action

within 60

days.

Yes; Joint Reso-

lution.

House & Sen-

ate; HMM&F,

SFRC, S

Commerce.

Yes, detailed

provisions

Taiwan Relations Act (P.L. 96–8), Section

12 [22 U.S.C. 3311].

Agreements made by

the American Insti-

tute in Taiwan.

After ................ No .................... No .................... Congress ......... No

Social Security Amendments of 1977 (P.L.

95–216), Section 317 [42 U.S.C. 433].

Social security agree-

ments between U.S.

and foreign social

security systems.

Before; 60-day

waiting pe-

riod.

No; will enter

into force if

No action

within 60

days.

Yes; resolution

of either

house.

Congress ......... No

International Development and Food Assist-

ance Act of 1978, as amended (P.L. 95–

424), Section 603 (a)(2) [22 U.S.C.

2395a (2)].

International agree-

ments concerning

debt relief 30 days.

Before .............. No .................... No .................... SFRC, HFAC, H

& S Appro-

priations.

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237

Enterprise for the Americas Initiative Act of

1992 (P.L. 102–532), Section 2 [7 U.S.C.

1738q].

Any agreement with any

foreign government

resulting in any debt

relief under Title VI

of the Agricultural

Trade Development &

Assistance Act of

1954, as amended.

30 days before No .................... No .................... HFAC, SFRC, H

& S Agri-

culture.

Trade Act of 1974, as amended (P.L. 93–

618), Section 405 [19 U.S.C. 2435].

Agreements on trade

relations with non-

market-economy

countries.

Before; Section

151 process.

Yes; Joint Reso-

lution.

No .................... Congress ......... Yes

OTCA of 1988, as amended

(P.L. 100–

418), Sections 1102 (b) & 1103 (a) and

Trade Act of 1974, as amended (P.L. 93–

618), Section 151 [19 U.S.C. 2191].

Agreements on elimi-

nation of non-tariff

barriers.

Before; Section

151 process.

Yes; Joint Reso-

lution.

No .................... House; Senate Yes; detailed

process

OTCA of 1988, as amended (P.L. 100–418),

Sections 1102 (c) & 1103 (a) [19 U.S.C.

2903] Trade Act of 1974, as amended

(P.L. 93–618), Section 151 [19 U.S.C.

2191].

Bilateral agreements

regarding tariff and

nontariff barriers.

Before; Section

151 process.

Yes; Joint Reso-

lution.

No .................... House; Senate Yes; detailed

process

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.

Many GIFAs have been approved by Congress and entered into force before the end of the 60-day period.

OTCA is the Omnibus Trade and Competitiveness Act of 1988, Public Law 100–418.

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238

462 U.S. 919 (1983).

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.

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 re-

garding the agreements. This would theoretically permit a congres-

sional effort to halt the agreement, but there are no explicit proce-

dures for this.

The Social Security Amendments of 1977 provision allowing dis-

approval of social security agreements by a simple resolution of ei-

ther house, a form of ‘‘legislative veto,’’ would seem a likely can-

didate for revision in light of the constitutional problems raised by

the 1983 Supreme Court Decision of INS v. Chadha.

In the re-

maining seven cases, such a legislative veto provision has been re-

placed by a requirement for a joint resolution of approval or dis-

approval. 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 dis-

approval would be subject to a veto by the President and thus re-

quire a two-thirds majority to override the President.

The Fishery Conservation and Management Act of 1977, as

amended, provides that the governing international fisheries agree-

ments would enter into force at the end of a 60-day waiting period,

unless Congress adopted a joint resolution of disapproval. The prac-

tice has been, however, that Congress has often, by legislation, ap-

proved 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. R

EQUIRED

EPORTS TO

ONGRESS

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 report-

ing requirements in this field reach as high as 820.

The reports may be required at regular intervals or upon the oc-

currence of a certain event. A much smaller number relate directly

to oversight of international agreements. Table X–4 provides a rep-

resentative listing of such reports and their statutory basis. The re-

porting 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.

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239

Table X–4.—Required Reports Related to International Agreements

Agreement Requirement/Citation to Law From Whom Frequency

Bretton Woods

Agreements.

U.S. participation in international

financial institutions/P.L. 95–

118, sec. 1701 & P.L. 101–

240, sec. 541.

Treasury .......... Annual

U.N. Charter .... Report on U.S. Participation in the

United Nations/P.L. 79–264,

sec. 4.

President ......... Annual

Various arms

control

agreements.

Adherence and compliance with

arms control agreements/P.L.

87–297, sec. 52, as amended.

President ......... Annual, by

January

Various trade

agreements.

Operation of the Trade Agree-

ments Program/P.L. 93–618,

sec. 163 (b).

U.S. Inter-

national

Trade Com-

mission.

Annual

International

Coffee

Agreement,

1983.

Report on operation of agreement

and the International Coffee

Organization/P.L. 96–599, sec.

5, amended.

President ......... Annual

Nuclear Non-

Proliferation

Treaty.

Review of government-wide activi-

ties to prevent proliferation/P.L.

95–242, sec. 601, amended.

President ......... Annual, Jan-

uary

U.N. Charter .... Special reports on Security Council

decisions to take enforcement

measures/P.L. 79–264, sec. 4.

President ......... As occurs

In addition, the Senate, during its consideration of certain trea-

ties, has added reporting requirements as a condition to its resolu-

tion 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 viola-

tion or probable violation of the terms of the CFE Treaty and proto-

cols thereto.’’ On October 1, 1992, the Senate, in its resolution ap-

proving ratification of the 1991 Treaty on the Reduction and Limi-

tation 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. O

THER

OOLS OF

ONGRESSIONAL

VERSIGHT

Among other tools Congress has used for oversight of inter-

national agreements are implementation legislation, recommenda-

tions in legislation, consultation requirements, and oversight hear-

ings. These are summarized briefly below. Further, section 136 of

the 1970 Legislative Reorganization Act (Public Law 91–510), spe-

cifically required the committees of Congress to exercise oversight

of those programs within their jurisdiction. An alternative ap-

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240

See also section on Obligation to Implement in Chapter VIII above.

Public Law 87–297, approved Sept. 26, 1961, as amended by Public Law 95–108, August

17, 1977.

proach 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 Con-

ference on Security and Cooperation in Europe (CSCE), a non-

binding 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

Implementation legislation can be an effective method for over-

seeing a treaty or other international agreement. Many treaties re-

quire 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 leg-

islation 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 exec-

utive 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 au-

thorized 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 op-

portunity 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 ne-

gotiations on an issue toward a specific goal or to ensure that an

agreement under negotiation include a specific item of congres-

sional interest. For example, in Section 37 of the Arms Control and

Disarmament Act, as amended,

Congress registered its sense

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241

‘‘that adequate verification of compliance should be an indispen-

sable part of any international arms control agreement.’’

Table X–5.—Legislation Implementing Treaties

Treaty Name

Citation to Implementation Leg-

islation

1945 U.N. Charter ................................................................. P.L. 79–264, December

20, 1945

1948 U.N. Convention on the Prevention and Punishment

of the Crime of Genocide.

P.L. 100–606, November

5, 1988

1963 Convention on Offenses and Certain Other Acts

Committed on Board Aircraft, Tokyo.

P.L. 91–449, October 14,

1970

1969 International Convention Relating to Intervention on

the High Seas in Cases of Oil Pollution Casualties, with

annex.

P.L. 93–248, February 5,

1974

1970 Convention for the Suppression of Unlawful Seizure

of Aircraft, Hague.

P.L. 93–366, August 5,

1974

1971 Convention to Prevent and Punish Acts of Terrorism

Taking the Form of Crimes Against Internationally Pro-

tected Persons and Related Extortion That are of Inter-

national Significance, OAS.

P.L. 94–467, October 8,

1976

1971 Convention for the Suppression of Unlawful Acts

Against the Safety of Civil Aviation, Montreal.

P.L. 98–473, October 12,

1984

1972 Convention on the Prohibition of the Development,

Production and Stockpiling of Bacteriological (Biologi-

cal) and Toxin Weapons and on Their Destruction.

P.L. 101–298, May 12,

1990

1973 Convention on the Prevention and Punishment of

Crimes Against Internationally Protected Persons, in-

cluding Diplomatic Agents, New York (UN).

P.L. 94–456, October 8,

1976

1977 Panama Canal Treaty .................................................. P.L. 96–70, September

27, 1979

1979 Convention on the Physical Protection of Nuclear

Material.

P.L. 97–351, October 18,

1982

1979 Convention Against the Taking of Hostages .............. P.L. 98–473, October 12,

1984

1990 Treaty on Conventional Armed Forces in Europe (CFE

Treaty).

P.L. 102–228, December

12, 1991

1993 Hague Convention on Protection of Children and Co-

operation in Respect of Intercountry Adoption.

P.L. 106–279, October 6,

2000

In a second example, Congress, in 1990, adopted two laws on

Antarctica, expressing its concerns on the preservation of the Ant-

arctic environment. In the Antarctic Protection Act of 1990, Con-

gress stipulated that the Secretary of State negotiate an inter-

national 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

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Public Law 101–594, approved November 16, 1990.

Public Law 101–620, approved November 16, 1990.

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 Author-

ization Act and the Foreign Assistance Act of 1961, as published in the multi-volume compila-

tion, Legislation on Foreign Relations, published annually as a joint committee print of the

House International Relations and Senate Foreign Relations Committees.

Section 1632, Omnibus Trade and Competitiveness Act of 1988, Public Law 100–418, ap-

proved August 23, 1988.

with the purpose and provisions of this Act.’’

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 ‘‘Con-

vention on the Regulation of Antarctic Mineral Resource Activities

should not be presented to the Senate for advice and consent to

ratification.’’

As a result of these provisions, the executive branch

went back into negotiations, working out a Protocol on Environ-

mental Protection to the Antarctic Treaty that was adopted in Oc-

tober 1991, submitted to the Senate in February 1992, and ap-

proved by the Senate in October 1992 for U.S. ratification. The Pro-

tocol, with its annexes, establishes a comprehensive, legally bind-

ing environmental protection regime for Antarctica and prohibits

all Antarctic mineral resource activities, except for scientific re-

search. This prohibition may not be reviewed until at least 50

years following entry into force of the Protocol.

The House and the Senate, acting separately in simple resolu-

tions, or jointly, in concurrent or joint resolutions, have over the

years expressed their views on a variety of circumstances, includ-

ing 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.

CONSULTATION REQUIREMENTS

Another method of keeping track of administration actions on

international agreements is to provide in legislation for consulta-

tion with Congress prior to or during negotiations that would result

in a treaty or executive agreement. The Omnibus Trade and Com-

petitiveness Act includes mechanisms for consultation on negotia-

tions including the selection of five members of the House Ways

and Means Committee and Senate Finance Committee as congres-

sional advisers for trade policy and negotiations who would be ac-

credited by the U.S. Trade Representative as official advisers to

U.S. delegations to international conferences, meetings, and nego-

tiating sessions when trade agreements are involved.

This section

also provides for regular consultations with the appropriate com-

mittees on U.S. trade policy and direction.

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

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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 termi-

nating the treaty. Under Article X, the treaty remained in force until January 1, 1980.

U. S. Congress. House. Committee on Foreign Affairs. Executive-Legislative Consultation on

China Policy, 1978–1979. By Robert G. Sutter. Committee Print, June 1980.

For discussion see Chapter VIII.

of the Mutual Defense Treaty of 1954.’’

It might be noted that

the treaty was terminated by the President with almost no real

consultation with Congress.

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.

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 mon-

itored 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 agree-

ments.

For example, at different times between 1983 and 1992, various

committees in Congress have held hearings on the 1982 U.N. Con-

vention 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 pro-

tect U.S. law of the sea interests. On other issues, the Senate For-

eign Relations Committee during 1991 and 1992, held hearings on

possible nuclear proliferation issues in North Korea, conducted reg-

ular hearings on developments regarding chemical weapons pro-

liferation 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.

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Prepared by Richard F. Grimmett, Specialist in National Defense and the following CRS ana-

lysts 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.

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, Septem-

ber 4, 1981, approved by Senate November 18, 1981), Exec. Rept. 97–24, November 9, 1981.

XI. TRENDS IN MAJOR CATEGORIES OF

TREATIES

The subject matter of treaties is varied and reflects changing cir-

cumstances that affect U.S. foreign policy interests. In the first dec-

ade after World War II, from 1945 through 1955, treaties estab-

lished 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, in-

cluding 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 trea-

ties (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.

In the case of the Treaty on the Final Set-

tlement with Respect to Germany, discussed below, the Senate in-

sisted it be submitted as a treaty.

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 di-

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246

Fulbright, J. William. The Crippled Giant: American Foreign Policy and Its Domestic Con-

sequences. New York, Random House, 1972. p. 217.

rectly 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 approv-

ing 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 au-

thorized executive agreement, has historically provided an alter-

native. 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, espe-

cially trade agreements, Congress has chosen this option. In other

areas, such as arms control, the Senate has insisted that inter-

national 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 Sen-

ate 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 Sen-

ate 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 pur-

poses.

A. P

OLITICAL AND

ECURITY

GREEMENTS

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, Roma-

nia, 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 Rela-

tions Committee, wrote there had been a ‘‘steady attrition of the

status and significance of treaties submitted to the Senate.’’

compared the importance of numerous agreements not submitted to

the Senate, such as a 1968 executive agreement to return the

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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 Docu-

ment Number 88–163; Agreement on a Comprehensive Political Settlement of the Cambodia

Conflict, October 23, 1991, State Department Document Number 91–240; and Agreement Con-

cerning the Sovereignty, Independence, Territorial Integrity and Inviolability, Neutrality and

National Unity of Cambodia, October 31, 1991, State Department Document Number 91–243.

A Charter for American-Russian Partnership and Friendship, June 17, 1992. Department of

State Dispatch, June 22, 1992. vol. 3, p. 490.

Vienna Document 1992 of the Negotiations on Confidence and Security-Building Measures,

March 4, 1992. Department of State Dispatch Supplement, July 1992.

S. Res. 85, 91st Cong., 1st Sess., adopted June 25, 1969.

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.

In more recent years, with the exception of the Panama Canal

Treaties of 1977 and arms control agreements, few important polit-

ical 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 con-

cluded as executive agreements, including the 1973 Paris agree-

ment on the end of the Vietnam War, the Afghanistan settlement

agreement of April 1988, and the political settlement of the Cam-

bodia conflict of October 1991.

Others have been considered politi-

cal statements or politically but not legally binding agreements,

such as the U.S.-Russian Charter

or agreements that have been

concluded in the Conference on Security and Cooperation in Europe

(CSCE).

NATIONAL SECURITY AND DEFENSE COMMITMENTS

In 1969, the Senate adopted the National Commitments Resolu-

tion, which defined a national commitment as ‘‘the use of Armed

Forces of the United States on foreign territory, or a promise to as-

sist a foreign country, government, or people by the use of Armed

Forces or financial resources of the United States, either imme-

diately or upon the happening of certain events.’’ The resolution ex-

pressed 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.’’

Since the

initial post-World War II security treaties, however, security com-

mitments have been made almost entirely by means other than

treaties.

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 Ice-

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Exec. Rept. 99–7, October 8, 1986. Treaty Doc. 99–31. Signed September 24, 1984. Approved

by the Senate October 8, 1986.

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.

Section 311, Public Law 99–239, signed January 14, 1986.

U.S. President. A Report on United States Security Arrangements.

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.

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 Reso-

lution, Public Law 97–132, signed December 29, 1981.

land to Facilitate their Defense Relationship, had a primarily eco-

nomic purpose: superseding U.S. cargo preference laws and equi-

tably sharing trade.

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.’’

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. Ap-

proved by Congress, the compacts give the United States ‘‘full au-

thority and responsibility for security and defense matters, in or re-

lating 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.’’

The President also listed a number of U.S. ‘‘security arrange-

ments,’’ 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 secu-

rity. They may appear in legally binding agreements, such as trea-

ties or executive agreements, or in political documents, such as pol-

icy declarations by the President, Secretary of State or Secretary

of Defense.’’

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.

One could be considered a statutory agree-

ment: 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 ap-

propriations, and Congress subsequently authorized the MFO in

legislation.

The President listed as security arrangements in political docu-

ments 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

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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.

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.

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).

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).

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 Acces-

sion of Poland, Hungary, and the Czech Republic (Treaty Doc. 105–36, Exec. Rept. 105–14, re-

ported with seven declarations and four conditions on March 6, 1998. Advice and consent given

on April 30, 1998).

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 be-

cause 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 agree-

ments 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.

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.

The

agreement also provided for arms sales, training, and joint military

exercises.

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 bound-

aries between South Pacific Islands,

the Constitution of the

United Nations Industrial Development Organization,

an Amend-

ment 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.

Two other very important treaties of the early 1990s in all likeli-

hood 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.

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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 Repub-

lic of Germany and the German Democratic Republic) in Moscow.

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.

Congressional Record, September 18, 1990, p. S13292 (daily ed.).

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.

Treaty on the Final Settlement with Respect to Germany

The Treaty on the Final Settlement with Respect to Germany,

signed September 12, 1990,

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 re-

unification of Germany appeared inevitable. Its purpose was to ter-

minate 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 renunci-

ation of nuclear, biological, and chemical weapons.

On July 23, 1990, the Senate Foreign Relations Committee held

hearings to discuss the future status of Germany and the legal in-

struments 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 nego-

tiated 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.

Private witnesses stressed the

importance of Senate advice and consent and therefore of a peace

treaty with Germany.

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 er-

roneous one. It is my judgment that this treaty bears on issues

of historic importance, of great significance for our national se-

curity 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.

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 Sen-

ator Pell felt strongly it should be a treaty.

On October 5, 1990,

the Foreign Relations Committee reported the treaty without condi-

tion 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

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251

S. Res. 334, approved by Senate October 9, 1990.

Signed June 1, 1990, and submitted to the Senate September 26, 1990. Treaty Doc. 101–

22.

Introduced by Senator Jesse Helms, July 20, 1989, as amendment to Foreign Relations Au-

thorization Act, FY 1990 and 1991. Adopted as Section 1007. See Exec. Rept. 102–13.

Section 33, Public Law 87–297, as amended, approved September 26, 1961.

sense of the Senate that U.S. ratification not be construed to di-

minish U.S. determination not to recognize the incorporation of the

Baltic States by the Soviet Union.

Maritime Boundary Agreement with the Soviet Union

The Agreement with the U.S.S.R. on the Maritime Boundary con-

cluded June 1, 1990,

resolved a dispute between the United

States and the Soviet Union which arose after 1977 when both na-

tions established 200-mile fishery and exclusive economic zones

(EEZs). The formation of these zones revealed conflicting interpre-

tations and measurements of the line established in the 1867 Con-

vention ceding Alaska.

During the negotiations, which lasted 9 years, some Senators be-

came concerned that the Department of State was considering con-

cluding the agreement as an executive agreement on grounds that

the 1867 line was a boundary line and the new line was just a vari-

ation. 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 delim-

ited by treaty. Subsequently, in 1989 the Senate adopted legisla-

tion stating its sense that the Department of State should submit

to the Senate in treaty form all boundary agreements with the So-

viet 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 responsibil-

ities of the Senate and the House of Representatives.’’

The agree-

ment was submitted to the Senate on September 26, 1990, and ap-

proved without reservation by a vote of 86–6 on September 16,

1991.

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 spe-

cial Senate influence on foreign policy. This may be in part because

the congressional desire to pass judgment on arms control agree-

ments was clear. The Arms Control and Disarmament Act provided

that no action obligating the United States to reduce its arma-

ments could be taken except pursuant to the treatymaking power

or unless authorized by further affirmative legislation by Con-

gress.

The policy statement was buttressed by the power Con-

gress 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

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Public Law 92–448, signed September 30, 1972.

A list of the activities of the Senate Arms Control Observer Group is contained in the re-

marks of Senator Lugar in the Congressional Record, September 30, 1992, pp. S15715–S15719.

This was accomplished through S. Res. 75 on March 25, 1999. Congressional Record, March

25, 1999, p. S3565.

Presidential Initiative on Nuclear Arms. Fact Sheet. The White House, Office of the Press

Secretary, September 27, 1991.

Text of Gorbachev Reply to President’s Nuclear Initiative. U.S. Embassy, Moscow. October

5, 1991.

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 commit-

tee 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.

May 26, 1972, which President Nixon submitted as a statutory

agreement and Congress approved by legislation.

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 Commit-

tee, 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 offi-

cials.

During the 1990s, as the United States and Russia stopped

holding formal arms control negotiations while awaiting the ratifi-

cation and entry into force of existing agreements, the Arms Con-

trol 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 reconsti-

tuted as the Senate National Security Working Group. The mem-

bers of this new group were to act as observers at negotiations re-

lating to the ‘‘reduction, limitation, or control of conventional weap-

ons, weapons of mass destruction, or the means of delivery of any

such weapons,’’ at negotiations on missile defenses, and at negotia-

tions on export controls.

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 Presi-

dential 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 deploy-

ment, and stated that the United States would eliminate many of

these weapons.

He called on Soviet President Gorbachev to take

similar steps. President Gorbachev reciprocated in early October.

These initiatives led to significant reductions in deployed nuclear

forces. Although many Members of Congress praised these initia-

tives after they were announced, President Bush neither consulted

with nor informed the Senate of his intentions prior to announcing

the initiatives.

In several cases, the United States has chosen to abide by trea-

ties 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.

The Senate never voted

on the treaty although the Foreign Relations Committee reported

it favorably with 2 reservations and 18 statements and understand-

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Public Law 105–85, Sec. 1302, as amended by Public Law 106–65 Sec. 1501.

White House statement said, ‘‘President Bush also signed the Concluding Act of the Nego-

tiation 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.

Public Law 102–228. Signed on December 12, 1991. Congressional Record, November 25,

1991, p. S18003.

ings. In December 1979, after the Soviet invasion of Afghanistan,

President Carter asked that consideration be postponed, and Presi-

dents Reagan and Bush never asked for consideration. On May 30,

1982, President Reagan declared that the United States would re-

frain 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 cir-

cumstance existed with respect to the 1974 Threshold Test Ban

Treaty, which limited the underground nuclear tests to 150 kilo-

tons. 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 proto-

cols. In the interim, the United States did observe the treaty’s 150

kiloton limit on nuclear weapons tests.

In contrast, during the latter half of the 1990s, Congress prohib-

ited 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 nu-

clear weapons that the United States would have retained under

the START I Treaty but eliminated under START II.

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 ap-

prove the treaty by indicating that the United States would not re-

duce its forces until START II entered into force.

The United States has also pursued arms control through agree-

ments other than treaties. Some ‘‘confidence-building measures,’’

such as an agreement of September 30, 1971, on measures to re-

duce 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 con-

ventional arms accord on regulating troop levels between the At-

lantic and the Urals.

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.

This amendment created

the Cooperative Threat Reduction (CTR) Program, which has pro-

vided U.S. assistance to Russia and other former Soviet states to

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For discussion, see Koplow, David A. When Is an Amendment Not an Amendment?: Modi-

fications of Arms Control Agreements Without the Senate. University of Chicago Law Review.

vol. 59, Summer 1992, pp. 981–1072.

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, ap-

proved 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).

For a more detailed discussion of Senate conditions, see Chapter VI.

help with the safe and secure transportation, storage, and elimi-

nation 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 re-

quired Senate advice and consent. Nonetheless, Congress affects

policy and expenditures on this program through the annual au-

thorization and appropriations process.

The complexity and detail in arms control treaties has increased

significantly as a result of the desire of the legislative and execu-

tive branches to assure adequate verification. The detailed provi-

sions have often resulted in a need for modifications and the devel-

opment of mechanisms for informal amendments, usually nego-

tiated in compliance bodies established by the treaties, that are not

submitted to the Senate.

In addition, agreements on implementa-

tion issues often concluded as executive agreements that are not

submitted to the Senate.

As in other categories, the Senate has, since the end of World

War II, approved most arms control treaties without formally at-

taching conditions of any type.

Since the mid-1980s, however, the

Senate has attached significant conditions to the major arms con-

trol treaties presented to it, namely the Intermediate-Range Nu-

clear Forces (INF) Treaty, the Threshold Test Ban Treaty and Pro-

tocol, 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 declara-

tion that future arms control agreements should be concluded as

treaties. In addition, the Senate has sometimes specified in the res-

olutions of ratification its intention that certain conditions were to

be transmitted to the other parties and that some were to be clear-

ly approved by the other parties, or that some conditions were

binding on the President and others declared the intention of the

Senate.

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).

INF Treaty

The U.S.-Soviet Intermediate-Range Nuclear Forces (INF) Trea-

ty, signed December 8, 1987, prohibited the two countries from pro-

ducing, 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

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255

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.

In 1993, the Clinton Administration made clear it had returned to the original interpreta-

tion. Letter of July 13, 1993, from Acting Director of the U.S. Arms Control and Disarmament

Agency Thomas Graham, Jr., to Senator Pell.

For text and discussion, see Chapter VI.

launchers.

The Senate approved the INF Treaty on May 27, 1988,

with three ‘‘conditions,’’ two ‘‘declarations,’’ and three ‘‘declarations

and understandings.’’

The primary condition related to the treatymaking power and the

reinterpretation of treaties. This became an issue during consider-

ation of the INF Treaty because of concern that the Reagan Admin-

istration was reinterpreting the 1972 Anti-Ballistic Missile (ABM)

Treaty to permit development and testing of the Strategic Defense

Initiative.

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 reinterpreta-

tions 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 Sen-

ate at the time the Senate gave its advice and consent to ratifica-

tion,’’ and that the United States would not agree to a different in-

terpretation except pursuant to Senate advice and consent or the

enactment of a statute. It also spelled out the bases for the com-

mon 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.

A second condition made ratification subject to the President’s

obtaining the agreement of the Soviet Union that certain agree-

ments on definitions and meanings of the treaty were of the same

force and effect as the treaty. A third condition required the Presi-

dent, prior to exchanging instruments of ratifications, to certify

that the United States and the Soviet Union had a specified com-

mon understanding concerning production of ground-launched bal-

listic missiles not covered by the treaty. The resolution of ratifica-

tion also specified that one declaration and two understandings not

relating to the subject matter of the treaty were to be commu-

nicated 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 de-

velopment 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 com-

mitments in the field of human rights.

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256

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).

Exec. Rept. 100–1.

Exec. Rept. 101–31.

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.

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 ver-

ification 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 Sen-

ators 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 agree-

ments, and with a declaration supporting negotiations for a com-

prehensive test ban.

The administration did not support the com-

mittee’s recommendations and the Senate did not vote on the trea-

ties at that time.

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 safe-

guards originally propounded by the Joint Chiefs of Staff but modi-

fied by the committee, and a declaration promoting continued ef-

forts to achieve a verifiable comprehensive test ban.

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 Bilat-

eral Consultative Commission, should not permit substantive

changes without Senate approval. The committee obtained assur-

ances 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 amend-

ment, 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.

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Treaty Doc. 102–8, submitted July 9, 1991. Reported November 19, 1991, with five condi-

tions, four declarations, Exec. Rept. 102–22. Approved by Senate, with amendments to resolu-

tion of ratification, November 25, 1991, by vote of 90–4.

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.

CFE established equal ceilings for each group of states in certain

armaments categories and limited the forces of individual coun-

tries. The Senate approved the treaty on November 25, 1991, sub-

ject to six conditions and four declarations. The resolution of ratifi-

cation explicitly stated that the conditions ‘‘shall be binding upon

the Executive’’ and that the declarations ‘‘express the intent of the

Senate.’’

One of the conditions dealt with new states that might be formed

from the Soviet Union. When the treaty was submitted to the Sen-

ate on July 9, 1991, the Soviet Union still existed. After a coup at-

tempt against Soviet President Gorbachev in August 1991, the So-

viet Union began to dissolve into a number of independent states.

During its consideration of the treaty, the Senate found the situa-

tion rapidly changing and obligations of successor states of the So-

viet 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 mili-

tary 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 con-

sent 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 dec-

larations 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 ob-

ligating 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 par-

ties 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 adjust-

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258

Treaty Doc. 105–5, submitted to the Senate April 7, 1997. Approved by the Senate May 14,

1997.

Congressional Record, May 14, 1997. p. S4475.

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.

ments, 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 ratifica-

tion because it did not consider it to be an amendment to the trea-

ty. However, after the Senate leadership pressured the administra-

tion and linked its submission to approval of the CWC, the admin-

istration submitted the CFE Flank Agreement to the Senate on

April 7, 1997.

The Foreign Relations Committee and the full Sen-

ate both approved the resolution of ratification by unanimous

votes.

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 Sen-

ate’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 interpre-

tation, which was initially included in the resolution of ratification

for the INF Treaty.

The resolution of ratification for the CFE Flank Agreement con-

tained one particularly contentious condition. In condition 9, the

Senate stated that the United States could not deposit the instru-

ments of ratification for the CFE Flank Agreement until the Presi-

dent certified to the Senate that he would submit the Memoran-

dum 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 succes-

sors 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 de-

feat the MOUS as part of their effort to nullify the ABM Treaty.

The administration and many Democratic Senators objected to con-

dition 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 Offen-

sive Arms (the START I Treaty) was signed by U.S. President Bush

and Soviet President Mikhail Gorbachev on July 31, 1991.

Six

months later, the Soviet Union disintegrated into a number of inde-

pendent states. On May 23, 1992, the United States and Belarus,

Kazakhstan, Russia, and Ukraine signed a protocol that named

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259

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.

Congressional Record. September 28, 1992, p. S15441.

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 sub-

mitted the protocol to the Senate on June 19, 1992, as an amend-

ment 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.

In the resolution of ratification, the Senate adopted eight condi-

tions designated as binding upon the President. The conditions in-

cluded that President Bush notify Belarus, Kazakhstan, and

Ukraine that letters obligating them to eliminate all nuclear weap-

ons and strategic offensive arms from their territory within 7 years

would be legally binding. The President was also directed to com-

municate 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 Presi-

dent to consult with the Senate. In the event Belarus, Kazakhstan,

and Ukraine did not eliminate nuclear weapons and strategic offen-

sive 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 Sen-

ate resolution of support. Another condition required the President

to submit a report on compliance with specified arms control trea-

ties 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 ter-

ritory of the parties to this treaty and (B) the location and inven-

tory of facilities on the territory of the parties to this treaty capable

of producing or processing significant quantities of fissile mate-

rials.’’ 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, ob-

jected to this condition, in part because it doubted the analysis sup-

porting 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 con-

dition either be eliminated from the START I resolution of ratifica-

tion, or that it be cast as a non-binding ‘‘sense of the Senate’’ rec-

ommendation.

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 be-

cause such a requirement would likely delay negotiations.

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260

Treaty Doc. 103–1, submitted to the Senate January 15, 1993. Reported by the Foreign Re-

lations Committee December 15, 1995, Exec. Rept. 104–10. Approved by the Senate, January

26, 1996.

Congressional Record. January 26, 1996. pp. S461–S463.

The resolution of ratification also included six declarations des-

ignated 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 Sen-

ate position that it would consider for approval accords obligating

the United States to reduce or limit its arms in a militarily signifi-

cant 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 war-

heads 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 Sep-

tember 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.

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 Decem-

ber 1994. The committee held additional hearings in January, Feb-

ruary, and March 1995, after the Republican Party gained a major-

ity 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 re-

organization 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 con-

tains 8 conditions and 12 declarations.

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 exten-

sion of the ABM Treaty. Also, the 10th declaration discusses the

nature of deterrence, noting that deterrence based on offensive re-

taliation 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 con-

trol agreements and continued cases of noncompliance by the Rus-

sian Federation ***’’ The resolution also displays the Senate’s con-

cerns about the Clinton Administration’s stewardship of U.S. nu-

clear forces. The seventh condition states that the treaty is not

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261

Treaty Doc. 102–37, submitted to the Senate August 12, 1992. Reported by the Foreign Re-

lations Committee August 2, 1993, Exec. Rept. 103–5. Approved by Senate, August 6, 1993.

Congressional Record, August 6, 1993, p. S10800 (daily ed.).

Treaty Doc. 103–21, submitted to the Senate on November 23, 1993.

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 in-

frastructure and that the United States reserves the right to re-

sume 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 applicabil-

ity 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.

Its

purpose was to enhance military openness by providing each party

the right to overfly the territory of other parties in unarmed obser-

vation 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 Presi-

dent. First, if a party sought agreement within the Open Skies

Consultative Commission for the introduction of additional cat-

egories 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 capabili-

ties, the President was to submit a report to the Senate, after the

treaty had been in force 1 year, assessing the number of observa-

tion 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.

Chemical Weapons Convention

The Chemical Weapons Convention (CWC) opened for signature

in January 1993.

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.

The Senate Foreign Relations, Armed Services, Intelligence, and

Judiciary Committees held a total of 13 hearings on the CWC dur-

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S. Res. 75. Congressional Record, April 24, 1997. pp. S3651–S3657.

U.S. Congress. Senate. Comprehensive Nuclear Test-Ban Treaty: Message from the Presi-

dent of the United States Transmitting Comprehensive Nuclear Test-Ban Treaty. ** * 105th

ing 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 post-

poned 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 agree-

ment was reached to bring the CWC resolution of ratification to the

Senate floor on April 23, 1997.

The resolution contained 33 condi-

tions, 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 report-

ing requirements. The resolution of ratification also contains the

two conditions that have become standard in arms control—the

Biden-Byrd condition on treaty interpretation from the INF Treaty

and the condition that reaffirms the Senate’s role in regarding

arms control treaties.

Comprehensive Test Ban Treaty

The Comprehensive Test Ban Treaty (CTBT) opened for signa-

ture at the United Nations on September 24, 1996. As of December

5, 2000, 160 nations have signed it and 69 have ratified it. The key

obligation in the CTBT is in Article I: ‘‘Each State Party under-

takes not to carry out any nuclear weapon test explosion or any

other nuclear explosion ***.’’ Much of the treaty establishes orga-

nizations and procedures for monitoring compliance with this obli-

gation. Entry into force requires ratification by 44 specified na-

tions, essentially those with a nuclear reactor. Of the 44, all have

signed but India, Pakistan, and North Korea, and 30 have ratified,

including Britain, France, and Russia. On October 13, 1999, the

Senate rejected the resolution of ratification, 51 against, 48 for, and

1 present, making the United States the only nation to have re-

jected the treaty.

The procedure by which the treaty came to a vote was unusual,

and influenced its consideration. President Clinton submitted the

treaty to the Senate for its advice and consent to ratification on

September 22, 1997.

In October 1997, the Senate Governmental

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Cong., 1st Sess., Treaty Doc. 105–28. Washington, U.S. Government Printing Office, 1997, 230

Letter dated January 21, 1998, reprinted in Senator Jesse Helms, ‘‘Comprehensive Test Ban

Treaty,’’ U.S. Congress. Congressional Record. September 30, 1999, S11677–S11678.

On September 8, Senator Byron Dorgan said, ‘‘If [Senator Lott] and others decide [the trea-

ty] will not come to the floor, I intend to plant myself on the floor like a potted plant and object

** * to other routine business of the Senate’’ until the treaty is brought to a debate and vote.

Congressional Record. September 8, 1999, S10541. Senator Joseph Biden, Senate Foreign Rela-

tions Committee ranking minority member, reportedly planned to offer a resolution proposing

hearings on the CTBT in 1999 and a vote by March 31, 2000. See Richard Lowry, ‘‘Test-Ban

Ban,’’ National Review, November 8, 1999, as reprinted in U.S. Congress. Congressional Record,

November 10, 1999, S14579

Ibid., S14578.

Congressional Record, September 30, 1999, S11666–S11667.

Senator Robert Byrd, ‘‘The Comprehensive Test Ban Treaty,’’ in U.S. Congress. Congres-

sional Record, October 7, 1999, S12257.

Congressional Record, October 8, 1999, S12257.

Affairs Committee and the Senate Appropriations Committee held

hearings on the U.S. ability to maintain nuclear weapons under a

CTBT. As the committee of jurisdiction, however, the Senate For-

eign Relations Committee had to report out the treaty or be dis-

charged from consideration. In his State of the Union Addresses of

1998 and 1999, President Clinton called for the Senate to approve

the treaty, but Senate Foreign Relations Committee Chairman

Jesse Helms demurred. He wrote to the President in January 1998

that ‘‘the CTBT is very low on the Committee’s list of priorities,’’

and stated that ‘‘I will be prepared to schedule Committee consider-

ation of the CTBT only after the Senate has had the opportunity

to consider and vote on the Kyoto Protocol and the amendments to

the ABM Treaty.’’

In 1998 and most of 1999, the Senate Foreign

Relations Committee did not hold hearings dedicated to the treaty

and did not report it out of committee.

Senate Democrats called repeatedly for the Senate Foreign Rela-

tions Committee to consider the treaty and for the Senate to vote

on it. In the summer of 1999, they escalated their pressure by

threatening a filibuster and by planning to press for hearings and

a vote by March 31, 2000.

Meanwhile, Senators Kyl and Cover-

dell had arranged for briefings of other Republican Senators to

make the case against the treaty, and by September 30 had lined

up 42 votes against it.

On that day, Senator Lott responded to

demands to consider the treaty. He asked for unanimous consent

to discharge the Senate Foreign Relations Committee from further

consideration of the treaty on October 6, to begin consideration of

the treaty on that day, with a total of 10 hours of debate, and then

to vote on the resolution of ratification. Senator Daschle objected

to the request on grounds that it proposed to hold the vote too

quickly, did not allow enough time for debate, and assumed the

treaty would be defeated.

Under the final agreement, the Senate

began consideration of the treaty on October 8. Each leader was

permitted one amendment to the resolution of ratification, with 8

hours of debate permitted on the two amendments and 14 hours on

the resolution of ratification. The Senate would then proceed to a

vote.

The resolution of ratification proposed by the majority was sim-

ply ‘‘[t]hat the Senate advise and consent’’ to ratifying the treaty.

The minority resolution included a number of conditions binding

upon the President, such as on nuclear weapons stockpile steward-

ship, maintenance of nuclear weapons laboratories and nuclear

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Congressional Record, October 12, 1999, S12427.

U.S. White House. Office of the Press Secretary. ‘‘Fact Sheet: Comprehensive Test Ban

Treaty Safeguards,’’ August 11, 1995, 1 p.

Congressional Record, October 13, 1999, S12548–S12549.

Congressional Record, October 12, 1999, S12333.

Senator Jesse Helms, ‘‘Comprehensive Test Ban Treaty,’’ in U.S. Congress. Congressional

Record, September 30, 1999, S11670. This reference includes a list of the hearings.

Senator Daschle, colloquy on the CTBT, in U.S. Congress. Congressional Record, October

13, 1999, S12507.

Senator Byrd, colloquy on the CTBT, in U.S. Congress. Congressional Record, October 13,

1999, S12523–S12524.

William Mann, ‘‘U.S. Will Honor Its Treaty Commitments, Albright Says,’’ Associated Press

(newswire), October 18, 1999.

testing capability, and withdrawal.

These were similar to the

‘‘safeguards’’ set forth by the President in August 1995.

By the time the debate began, all recognized that the treaty

would be defeated. Many Democrats feared that the defeat would

be harmful, and some from both parties were troubled by the hasty

consideration and vote. Accordingly, Senators Moynihan and War-

ner gathered 62 signatures—24 Republicans and 38 Democrats—

for a letter to Senators Lott and Daschle requesting that the vote

be deferred.

Similarly, President Clinton asked Senator Lott to

defer consideration.

But some objected to rescinding the agree-

ment, so the vote was held.

The Senate debated the CTBT on October 8, 12, and 13. Several

hearings were held the week before, by the Foreign Relations Com-

mittee on October 7, and by the Armed Services Committee on Oc-

tober 5, 6, and 7. During the debate, Senators debated whether the

treaty would advance nuclear nonproliferation objectives, whether

other nations could conduct clandestine tests of military signifi-

cance, and whether the United States could maintain its nuclear

deterrent without nuclear tests. Some also raised the question of

how the international community might react to U.S. rejection of

the treaty, and whether rejection would undermine the U.S. leader-

ship role in the world and lead to the unraveling of other arms con-

trol agreements.

The Senate debate also addressed the question of whether the

Senate had given the treaty adequate consideration in the form of

hearings and floor debate. Senator Helms stated that the CTBT

was ‘‘extensively discussed’’ in 14 Senate Foreign Relations Com-

mittee hearings in 1998 and 1999,

while Senator Daschle pre-

sented a list, ‘‘Senate Consideration of Major Arms Control and Se-

curity Treaties—1972–1999,’’ showing, on average, that other such

agreements received much more consideration than did the

CTBT.

Senator Byrd stated that the process for considering this

treaty was inadequate. ‘‘To accept or reject this treaty on the basis

of such flimsy understanding of the details as most of us possess,’’

he said, ‘‘is a blot on the integrity of the Senate, and a disservice

to the Nation.’’ As a result, he declared he would vote ‘‘present’’ for

the first time in his 41 years as a Senator.

Regarding the status of the U.S. obligation in the wake of the

Senate’s rejection of the treaty, Secretary of State Madeleine

Albright said in October 1999, that the United States will ‘‘live up

to the conditions of the treaty.’’

Senator Lott countered, ‘‘If the

Senate does not consent to ratification of a treaty *** it has no

status for the United States in international law. In fact, the Sen-

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265

Bill Gertz, ‘‘Lott Hits Clinton’s Stance on Nuke Pact,’’ Washington Times, November 3,

1999: 1. The quotation is from a statement Senator Lott released to that newspaper.

Rule XXV. Standing Rules of the Senate, Revised to July 2, 1992. S. Doc. 102–25, July 27,

1992. For additional information, see Grimmett, Jeanne J. Why Certain Trade Agreements are

Approved as Congressional-Executive Agreements Rather Than as Treaties. CRS Report 97–896

A, updated October 8, 1999. Holliday, George D. Fast Track Implementation of Trade Agree-

ments: The Debate over Reauthorization, CRS Report RS20039, updated January 29, 1999.

Holliday, George D. The Changing Role of Congress in Trade Negotiations. CRS Report 92–231

E, February 14, 1992. Sek, Lenore. Congressional Trade Negotiating Authority. In Congress and

Foreign Policy, 1991. House Foreign Affairs Committee Print, 1992. pp. 103–117.

See generally Vandevelde, ‘‘The Bilateral Investment Treaty Program of the United States,’’

2 Cornell Int’l L. J. 201, 207–208 (1988).

Protocol to the Treaty of Friendship, Commerce, and Navigation with Finland of February

13, 1934, as modified by the protocol of December 4, 1952, signed July 1, 1991. Submitted to

the Senate July 30, 1992. Treaty Doc. 102–34. Reported August 6, 1992, Exec. Rept. 102–49,

approved by Senate August 11, 1992. Protocol to the Treaty of Friendship, Commerce, and Navi-

gation with Ireland of January 21, 1950, signed June 24, 1992. Submitted to the Senate July

Continued

ate vote serves to release the United States from any possible obli-

gations as a signatory of the negotiated text of the treaty.’’

B. E

CONOMIC

REATIES

Economic treaties and agreements have always been a major

component of U.S. relations with foreign countries, and the end of

the Cold War has increased their significance. This section dis-

cusses four categories of economic treaties: friendship, commerce,

and navigation (FCN); investment; consular; and tax treaties.

An important category, reciprocal trade agreements, is not dis-

cussed in detail here. Although they are legally binding treaties

under international law, these trade agreements are not treaties in

the U.S. terminology, that is, agreements submitted to the Senate

for its advice and consent. Instead, they have been concluded as

statutory or congressional-executive agreements. In accordance

with legislative directives, major trade agreements have been sub-

mitted to Congress for approval or enactment by legislation requir-

ing approval of both Chambers and providing for expedited or ‘‘fast

track’’ procedures. Others are concluded as executive agreements

that have been authorized by Congress. Within the Senate, while

all treaties are in the jurisdiction of the Foreign Relations Commit-

tee, reciprocal trade agreements are in the jurisdiction of the Fi-

nance Committee.

FRIENDSHIP

COMMERCE

AND NAVIGATION TREATIES

Friendship, commerce, and navigation (FCN) treaties were

among the earliest formal economic treaties and set the framework

for U.S. trade and investment relations with foreign countries.

Their importance for trade obligations decreased after 1948 when

the United States became a contracting party to the General Agree-

ment on Tariffs and Trade (GATT) and U.S. trade relations began

to be set through multilateral trade agreements. The United States

entered into 21 FCN treaties between 1946 and 1966, however, fo-

cusing during this period on the protection of U.S. foreign invest-

ment, mainly in developed countries.

In recent years some of the older FCN treaties have been amend-

ed by protocols. Recent examples were the Protocols to the Treaties

of Friendship, Commerce, and Navigation with Finland and Ire-

land.

The protocols established the legal basis by which the

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23, 1992. Treaty Doc. 102–35. Reported August 6, 1992, Exec. Rept. 102–50. Approved by Senate

August 11, 1992.

8 U.S.C. 1101(a)(15)(E)(ii).

After several European countries had met success with bilateral investment agreements, in

1977 Senators Claiborne Pell and Frank Church wrote letters to the State Department urging

the United States to undertake a similar program, and during the Carter Administration efforts

began to develop a model treaty. Negotiations on treaties with specific countries began in 1982,

and as of August 1992 the United States had signed nineteen BITs. Statement of Kenneth J.

Vandevelde in: U.S. Congress. Senate. Committee on Foreign Relations. Bilateral Investment

Treaties with the Czech and Slovak Federal Republic, the People’s Republic of the Congo, the

Russian Federation, Sri Lanka, and Tunisia, and Two Protocols to Treaties with Finland and

Ireland. Hearing. August 4, 1992. S. Hrg. 102–795, pp. 66–67.

The U.S. Model Bilateral Investment Treaty, as of February 1992, and an explanation may

be found in: U.S. Congress. Senate. Committee on Foreign Relations. Bilateral Investment Trea-

ties with the Czech and Slovak Federal Republic, the People’s Republic of the Congo, the Rus-

sian Federation, Sri Lanka, and Tunisia, and Two Protocols to Treaties with Finland and Ire-

land. Hearing. August 4, 1992. S. Hrg. 102–795, pp. 56–66. A 1994 Model Bilateral Investment

Treaty has since been developed; the BIT with Georgia was the first treaty to be signed using

this model. Treaty Doc. 104–13.

United States could issue investor visas to qualified nationals, a

benefit provided in most FCN treaties. The Immigration and Na-

tionality Act permits issuance of an investor visa only to a non-

immigrant who is ‘‘entitled to enter the United States under and

in pursuance of the provisions of a treaty of commerce and naviga-

tion between the United States and the foreign state of which he

is a national ***.’’

INVESTMENT TREATIES

Investment treaties are a successor to the Friendship, Commerce,

and Navigation (FCN) Treaty Series. To improve investor protec-

tion, primarily in developing countries with which the United

States had not concluded FCN treaties, the United States nego-

tiated a series of bilateral investment treaties (BITs) under a pro-

gram begun in 1981.

Before beginning the negotiations, the State

Department developed a model treaty that has continued to evolve.

The general objectives of the program are to facilitate the free flow

of investment, prohibit practices that inhibit investment, and codify

rules on investment and dispute settlement.

The model treaty serves as a criterion against which the Senate

may judge specific investment treaties.

Specific objectives in-

clude:

1. The better of either national or most-favored-nation treat-

ment for each party, subject to specified exceptions;

2. Application of international law standards to the expro-

priation of investments, permitting expropriation only for a

public purpose and requiring the payment of prompt and fair

compensation;

3. The free transfer of funds associated with an investment

into and out of the host country;

4. An investor-to-state dispute mechanism that allows U.S.

investors access to binding arbitration with the host state

without the involvement of the U.S. Government;

5. A prohibition on the imposition of performance require-

ments, i.e., commitments to use local products or to export

goods;

6. The right of companies to hire managers of their choice,

regardless of nationality.

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Treaty Docs. 102–1, 102–6, 102–25, 102–31, and 102–33. Congressional Record, August 11,

1992, p. 22861.

Investment Treaties with Romania, Argentina, Bulgaria, Armenia, Kazakhstan, Kyrgyzstan,

Moldova, and Ecuador. Treaty Docs. 102–36, 103–8, 103–9, 103–11, 103–12, 103–13, 103–14,

103–15. Reported September 15, 1993, S. Exec. Repts. 103–7, 103–2, 103–3, 103–10, 103–11,

103–12, 103–13, and 103–15. Congressional Record, September 15, 1993, p. 21603.

Congressional Record, October 21, 1993, p. 25853.

Congressional Record, November 17, 1993, p. 29688.

Investment Treaties with Jamaica, Belarus, Ukraine, Estonia, Mongolia, Latvia, Georgia,

Trinidad and Tobago, Albania. Treaty Docs. 103–35, 103–36, 103–37, 103–38, 104–10, 104–12,

104–13, 104–14, and 104–19. Reported June 20, 1996, S. Exec. Repts. 104–11, 104–12, 104–13,

104–14, 104–15, 104–16, 104–17, 104–18, and 104–19. Congressional Record, June 20, 1996, p.

14807. The Senate Foreign Relations Committee held a hearing on these treaties in November

1995. U.S. Congress. Senate. Committee on Foreign Relations. Bilateral Treaties Concerning the

Encouragement and Reciprocal Protection of Investment. Hearing. November 30, 1995. S. Hrg.

104–289.

Congressional Record, June 26, 1996, pp. 15828–15829.

Investment Treaties with Uzbekistan, Bahrain, Bolivia, Honduras, El Salvador, Croatia,

Jordan, Mozambique, Lithuania, and Azerbaijan. Treaty Docs. 104–25, 106–25, 106–26,106–27,

106–28, 106–29, 106–30, 106–31,106–42,and 106–47. Reported October 4. 2000, S. Exec. Rept.

106–23. Congressional Record, October 4, 2000, pp. S9855–S9856 (daily ed.).

Protocol Between the Government of the United States of America and the Government of

the Republic of Panama Amending the Treaty Concerning the Treatment and Protection of In-

vestments of October 27, 1982, Senate Treaty Doc. 106–46. The protocol is intended to ensure

that binding international arbitration under the Convention on the Settlement of Investment

Disputes Between States and Nationals of Other States (ICSID Convention) will be available

for disputes between investors and treaty parties, a result that the 1982 BIT precluded after

Panama acceded to the convention in 1996.

The United States concluded and the Senate approved approxi-

mately a dozen BITs in the late 1980s. With the emergence of new

governments in Eastern Europe and the independent states of the

former Soviet Union, the negotiation of such treaties increased. On

August 11, 1992, the Senate advised ratification of BITs with the

People’s Republic of the Congo, Tunisia, Sri Lanka, the Czech and

Slovak Federal Republic, and the Russian Federation.

On Sep-

tember 15, 1993, the Foreign Relations Committee favorably re-

ported without reservations investment treaties with eight other

countries.

The Senate gave its advice and consent to one of these,

the investment treaty with Kazakhstan, on October 21, 1993.

Ratification of the remaining seven treaties was advised on Novem-

ber 17, 1993.

Nine BITs were favorably reported by the Senate Foreign Rela-

tions Committee without reservations on June 20, 1996.

Ratifica-

tion was advised by the Senate on June 27, 1996.

The treaty with

Belarus was reported and approved with a declaration that the

President was directed to communicate to the Republic of Belarus

when instruments of ratification were exchanged. The declaration

expressed the sense of the Senate that the United States ‘‘(a) sup-

ports the Belarusian Parliament and its essential role in the ratifi-

cation process of this treaty; (b) recognizes the progress made by

the Belarusian Parliament towards democracy during the past

year; (c) fully expects that the Republic of Belarus will remain an

independent state committed to democratic and economic reform;

and (d) believes that, in the event that the Republic of Belarus

should unite with any other state, the rights and obligations estab-

lished under this agreement will remain binding on the part of the

Successor State that formed the Republic of Belarus prior to the

union.’’

Ten BITs

and one protocol to an earlier BIT

were favorably

reported by the Senate Foreign Relations Committee on October 4,

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S. Exec. Rept. 106–23. Congressional Record, October 4, 2000, pp. S9855–S9856 (daily ed.).

Congressional Record, October 18, 2000, pp. S10660–S10662 (daily ed.).

See, for example, resolution of ratification for Treaty with Uzbekistan. Congressional

Record, October 18, 2000, p. S10662 (daily ed.). Condition (1) of the resolution of ratification

for the INF Treaty, among other things, 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,’’ lists the elements

on which this ‘‘common understanding’’ is based, and states 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.’’

Condition (8) of the Document Agreed Among the States Parties to the Treaty on Conventional

Armed Forces in Europe (CFE Flank Agreement), among other things, reaffirms the principles

of treaty interpretation contained in resolution of ratification for the INF Treaty. For the text

of the cited interpretive provisions, see the Congressional Record, May 27, 1988, p. 12849, and

May 14, 1997, p. S4475 (daily ed.).

See, for example, resolution of ratification for Treaty with Uzbekistan. Congressional

Record, October 18, 2000, p. S10662 (daily ed.).

Investment Treaties with Senegal, Zaire, Morocco, Turkey, Cameroon, Bangladesh, Egypt,

and Grenada. Treaty Docs. 99–15, 99–17, 99–19, 99–22, 99–23, 99–24, and 99–25. Reported Oc-

tober 4, 1988, S. Exec. Rept. 100–32. Approved October 20, 1988.

S. Exec. Rept. 100–32, October 4, 1988, p. 3.

2000.

The Senate advised ratification of these treaties on October

18, 2000.

For each BIT, the committee recommended and the

Senate approved the following declaration regarding treaty inter-

pretation, stated in each resolution of ratification to be binding on

the President:

The Senate affirms the applicability to all treaties of the con-

stitutionally based principles of treaty interpretation set forth

in condition (1) of the resolution of ratification of the INF Trea-

ty, 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.

Each BIT was also approved with the following committee-

recommended proviso to the resolution of ratification: ‘‘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’’; the resolu-

tion further stated that the proviso was not to be included in the

instrument of ratification to be signed by the President.

The executive branch and the Senate have demonstrated interest

in maintaining an escape clause in BITs, similar to that contained

in FCN treaties. A standard provision in BITs based on the 1992

and earlier models states that the treaty ‘‘shall not preclude the ap-

plication by either Party of measures necessary for the mainte-

nance of public order, the fulfillment of its obligations with respect

to the maintenance or restoration of international peace or secu-

rity, or the protection of its own essential security interests.’’ In

1988, in approving several BITs, the Foreign Relations Committee

added an understanding to the resolutions of ratification stating

that under this article, ‘‘either Party may take all measures nec-

essary to deal with any unusual and extraordinary threat to its na-

tional security.’’

The report emphasized that ‘‘U.S. national secu-

rity interests, as determined by the President, should take prece-

dence over provisions of the treaties, should that become nec-

essary.’’

The committee did not add this understanding in 1992 when it

approved BITs with the Czech and Slovak Federal Republic, the

People’s Republic of the Congo, the Russian Federation, Sri Lanka,

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Article 8 of Protocol to Treaty with the Russian Federation Concerning the Encouragement

and Reciprocal Protection of Investment, Treaty Doc. 102–33, July 28, 1992.

Investment treaties with Uzbekistan, Bahrain, Bolivia, Honduras, El Salvador, Croatia, Jor-

dan, Mozambique, and Azerbaijan; the BIT with Lithuania, which is based on the 1992 model,

contains the earlier version of the provision. See list of treaties at supra note 85.

These agreements were approved by Congress in the Uruguay Round Agreements Act

(URAA), Public Law 103–465, Section 101(a). The URAA was considered under expedited legis-

lative procedures for multilateral trade agreements provided for in Title I of the Omnibus Trade

and Competitiveness Act of 1988, Public Law 100–418.

The NAFTA was approved by Congress in Section 101(a) of the North American Free Trade

Agreement Implementation Act (NAFTA Act), Public Law 103–182, under expedited legislative

procedures for free trade agreements provided for in Title I of the Omnibus Trade and Competi-

tiveness Act of 1988, Public Law 100–418. The NAFTA Act was jointly reported by several Sen-

ate committees, including the Foreign Relations Committee, in S. Rept. 103–189. It was referred

to the committee because of provisions related to U.S. participation in NAFTA supplemental

agreements on labor and the environment, the Border Environmental Cooperation Commission,

and the North American Development Bank. S. Rept. 103–189, p. 129.

‘‘OECD Countries Kill MAI Talks But Say World Still Needs Rules,’’ 15 Int’l Trade Rep.

2954 (BNA 1998). Some Senate committee discussion of MAI negotiations may be found in the

November 1995 Foreign Relations Committee hearing on pending BITs. U.S. Congress. Senate.

Committee on Foreign Relations. Bilateral Treaties Concerning the Encouragement and Recip-

rocal Protection of Investment. Hearing. November 30, 1995. S. Hrg. 104–289. A House hearing

on the negotiations was held in March 1998. U.S. Congress. House. Committee on International

Relations. Subcommittee on International Economic Policy and Trade. Multilateral Agreement

on Investment: Win, Lose, or Draw for the U.S.? March 5, 1998.

and Tunisia. The administration took the view that the under-

standing could delay progress of the treaties and was not necessary

because a treaty article clearly encompassed U.S. economic emer-

gency powers. A protocol attached to the Russian bilateral invest-

ment treaty explicitly confirmed the mutual understanding of the

two parties ‘‘that whether a measure is undertaken by a Party to

protect its essential security interests is self-judging.’’

The provi-

sion in the 1994 prototype does not contain the earlier language re-

garding measures necessary for the maintenance of public order;

this shortened version is used in the treaties with Georgia, Trini-

dad and Tobago, Albania, and nine of the treaties approved in Oc-

tober 2000,

each of which is based on the 1994 model.

Investment obligations have begun to appear in multilateral

frameworks, for example, the World Trade Organization (WTO)

Agreement on Trade-Related Investment Measures and the WTO

General Agreement on Trade in Services, which contains rights and

obligations regarding the commercial presence of service providers

in the territory of WTO Member countries.

A trilateral invest-

ment agreement among the United States, Canada, and Mexico in-

corporating BIT principles is contained in Chapter 11 of the North

American Free Trade Agreement (NAFTA).

The negotiation of a

Multilateral Agreement on Investment (MAI) by member states of

the Organization for Economic Cooperation and Development

(OECD) was initiated in 1995, with a consolidated draft text issued

in February 1998. Negotiations were ended in December 1998 be-

cause of strong objections by labor and environmental groups and

various concerns over treaty provisions cited by negotiating coun-

tries.

CONSULAR CONVENTIONS

Consular conventions provide for the establishment of consular

posts and appointments and immunities of consular officials. Con-

sular relations were traditionally government by customary inter-

national law and bilateral consular agreements. In 1963, a con-

ference sponsored by the United Nations adopted the Vienna Con-

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270

Signed April 18, 1961, 23 UST 3227, entered into force for the United States on December

13, 1972.

Public Law 95–393, as amended.

100

Recent examples are Consular Conventions with the Republic of Tunisia, signed May 12,

1988 (Treaty Doc. 101–12); Algeria, signed January 12, 1989 (Treaty Doc. 101–13); and the Mon-

golian People’s Republic, signed August 2, 1990 (Treaty Doc. 101–14). The Consular Conventions

with Tunisia, Algeria, and Mongolia were approved by committee May 7, 1992, S. Exec. Rept.

102–25, 25, and 27, respectively, and by the Senate on May 13, 1992. Hearings were held April

8, 1992. U.S. Congress. Senate. Committee on Foreign Relations. Consular Conventions, Extra-

dition Treaties, and Treaties Relating to Mutual Legal Assistance in Criminal Matters (MLATs).

Hearing. April 8, 1992. S. Hrg. 102–674.

101

S. Exec. Rept. 102–26, May 1, 1992.

vention on Consular Relations, which has since been ratified or ad-

hered to by more than 130 nations, including the United States.

The Diplomatic Relations Act of 1978 established the Vienna Con-

vention as U.S. law on diplomatic privileges and immunities with

respect to nonparties to the convention.

The Vienna Convention reduced the need for bilateral consular

conventions, but it did not invalidate previously existing bilateral

agreements or prevent future agreements to supplement or amplify

its provision. The United States has continued to negotiate bilat-

eral agreements on occasion, and by the end of 1991, there were

approximately 65 bilateral consular treaties.

100

In reporting consular conventions with Tunisia and Algeria in

1992, the Foreign Relations Committee agreed with the adminis-

tration’s view that the conventions would provide greater protec-

tion to U.S. citizens in the face of increased violations of human

rights in Tunisia and the suspension of elections in Algeria. The bi-

lateral conventions obligate the other country to notify the U.S.

consul without delay whenever a U.S. national is arrested, and to

allow U.S. access to the national provisions more specific than the

Vienna Convention. The committee stressed that approval did not

constitute an endorsement of policies of those countries and re-

peated Bush Administration assurances that, ‘‘treaties that en-

hance a country’s capacity to protect its nationals in other coun-

tries are not generally seen as representing an endorsement of the

policies of those countries.’’

101

TAX CONVENTIONS

Since January 1993, the ever-increasing globalization of economic

activity has assured continued interest by the United States in ne-

gotiating and renegotiating income tax treaties with numerous

other countries. Of the 53 income tax treaties presently in force be-

tween the United States and other countries, 22 new or renegoti-

ated treaties (that is, more than 40 percent of the total) have en-

tered into force during this period. Additional income tax treaties

signed during the period have not yet entered into force. The major

purpose of these treaties continues to be the avoidance of double

taxation: that is, the object is to avoid taxation by both jurisdic-

tions in instances where a resident of one earns income from

sources within the other. Another important purpose of the treaties

is to prevent evasion of income taxes through the exchange of rel-

evant tax information.

A special consideration in the negotiation of tax treaties is the

need to coordinate treaty provisions with relevant domestic legisla-

tion. Hence, procedures for the negotiation and ratification of tax

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102

The 75 percent ownership rule of the older model treaty has been changed to a 50 percent

ownership rule in the newer model treaty and thus coincides with all recently negotiated trea-

ties (including several negotiated before the period under review). Furthermore, the most recent

treaties include rules allowing a third-country resident to enjoy treaty benefits if a treaty be-

tween the United States and the third country has entered into force. In fact, there is even a

special provision in the treaty with Mexico that would accord treaty benefits to residents of any

other country which is a party to NAFTA.

treaties are somewhat different from those followed in the case of

other types of treaties. While most treaties are negotiated pri-

marily by the State Department, tax treaties are negotiated pri-

marily by the International Tax Counsel of the Treasury Depart-

ment with State Department assistance. While the Senate Foreign

Relations Committee has jurisdiction over review of all treaties,

both the House Committee on Ways and Means and the Senate Fi-

nance Committee expect to be consulted in the case of tax treaties

because of their jurisdiction over congressional consideration of tax

legislation. Thus, after a tax treaty has been signed and submitted

to the Senate for ratification, the staff of the Joint Committee on

Taxation prepares an explanation of its provisions and submits

that explanation to the Senate Committee on Foreign Relations.

The Joint Committee explanation summarizes the treaty’s provi-

sions, may examine specific issues raised by the treaty, presents an

overview of relevant U.S. tax law, and supplies article-by-article ex-

planations of each of the treaty’s provisions.

Senate consideration of a tax treaty is also facilitated by com-

parison with two model income tax treaties: the model published

in 1992 by the OECD and the U.S. model income tax treaty pub-

lished in 1996.

Some of the specific issues which have been presented by tax

treaties negotiated or renegotiated during the period under exam-

ination are described below.

Treaty shopping

Treaty shopping has been a concern for a number of years and

continued to be during the period under review. The expression is

used to describe the situation where a treaty between the United

States and some other country is relied on by a resident of some

third country to reduce U.S. tax liability even though the third

country concerned does not accord reciprocal benefits on U.S. resi-

dents earning income from sources within its territorial jurisdic-

tion. The anti-treaty shopping provision of the U.S. model treaty is

often used as a standard against which to compare the anti-treaty

shopping provisions of specific actual treaties. The 1996 model trea-

ty is more lenient in some respects than the prior model treaty

102

and more restrictive in other respects. All of the actual treaties

which went into force during the period under review include anti-

treaty shopping rules. However, there is no uniformity but indeed

there is wide variation among the treaties with respect to such

rules. Of course, continuing developments in the fashioning of com-

plex financial instruments and specialized contracts likely will as-

sure that future treaties will require more complex mechanisms for

preventing, or at least limiting, treaty shopping.

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103

The treaty with France very significantly restricts the ability of the United States to con-

duct audits in France. The treaty with Ireland only affords the United States limited access to

information in the case of criminal offenses and no information in the case of civil offenses. The

treaty with the Netherlands only affords the United States access to information relating to in-

come taxes.

104

This matter was cited by the Joint Committee as an issue presented by several treaties

negotiated or renegotiated during the period under review. In some instances, it was character-

ized as an issue of ‘‘transfer pricing’’ (that is, see the JCT explanations of the treaties with

France, Kazakhstan, and Sweden). In other instances, it was described as an issue involving

‘‘associated enterprises and permanent establishments’’ (that is, see the JCT explanations of the

treaties with the Czech Republic, Mexico, the Netherlands, the Russian Federation, and the Slo-

vak Republic).

105

The treaties in question are those concluded with France, Ireland, Kazakhstan, Mexico,

and the Netherlands.

Exchange of information

As noted above, preventing evasion of income tax is one of the

two chief aims the United States has in negotiating income tax

treaties. Treaty provisions regarding the exchange of fiscal infor-

mation further that aim. A few treaties negotiated or renegotiated

during the period under review assure the ability of the United

States to obtain tax information from the other country to a more

limited degree than either the model treaty or other recent trea-

ties.

103

Allocation of income of multinational business enterprises

Most U.S. income tax treaties include provisions which employ a

so-called arm’s-length standard to determine whether and to what

extent the income of a multinational business must be reallocated

in order to prevent evasion of tax in the United States or to clearly

reflect the income of related enterprises. The leading industrialized

countries use this same approach. Debate has occurred however

with respect to whether a better approach might exist. One such

approach used internally in the United States among the various

states is formulary apportionment of the worldwide income of a ju-

ridical person or an affiliated group of related persons among the

various jurisdictions claiming primary authority to tax portions of

the whole.

104

Taxation of equipment rentals

Although contrary to the general policy of the United States, cer-

tain treaties with developing countries allow a source country to

impose a gross-basis tax on income from the rental of equipment

in cases where the taxpayer does not maintain a permanent estab-

lishment in the source country. Three treaties negotiated during

the period under review (that is, those with the Czech Republic,

Kazakhstan, and the Slovak Republic) include provisions allowing

the same.

Arbitration of competent authority issues

Some treaties negotiated or renegotiated during the period under

review

105

follow a precedent established in the 1989 treaty with

Germany by including provisions allowing the competent authori-

ties of the treaty countries to resolve disputes with respect to inter-

pretation of the treaties in question through arbitration.

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106

Those treaties were the one with Barbados and the one with Bermuda.

107

Bermuda.

108

See the treaties with France, Ireland, Mexico, and Sweden but cf. the treaty with the Neth-

erlands.

109

U.S. Congress. Senate. Committee on Commerce, Science, and Transportation. Treaties and

Other International Agreements on Fisheries, Oceanographic Resources, and Wildlife Involving

the United States. Prepared by the Congressional Research Service, October 31, 1977.

110

United States International Trade Commission. International Agreements to Protect the

Environment and Wildlife. Report to the Committee on Finance, United States Senate, on Inves-

tigation No. 332–287 Under Section 332 of the Tariff Act of 1930. U.S. ITC Publication 2351,

January 1991. p. 1–1.

Insurance excise tax

The treaties between the United States and certain, but not all,

other countries contain provisions that make the U.S. excise tax on

insurance premiums paid to foreign insurers inapplicable to insur-

ers resident in the other treaty country. Congress has expressed

strong reservations about such treaty waivers of the insurance ex-

cise tax in the past on the ground that they may put U.S. insurers

at a relative competitive disadvantage if the other treaty country

does not impose any substantial tax burden on its insurers. In such

instances, the waiver does not further the policy objective of avoid-

ing double taxation but rather has the effect of eliminating tax-

ation of foreign insurers that compete against U.S. insurers in the

worldwide market. Two earlier treaties

106

in particular raised con-

gressional concern since in at least one of the countries con-

cerned

107

no tax whatever was imposed on resident insurers.

Treasury has included so-called ‘‘anti-conduit’’ clauses in most

108

the more recent treaties that include relevant waivers. Such

clauses provide that if an insurer resident in the other treaty coun-

try reinsures a relevant risk with a juridical person not entitled to

the benefits of the treaty or any other treaty allowing a relevant

waiver (for example, a person subject to an anti-treaty shopping

provision), then the tax is not waived.

C. E

NVIRONMENTAL

REATIES

The negotiation of environmental treaties to protect various as-

pects of the physical world and surrounding atmosphere is not new.

For decades, the United States has concluded bilateral and multi-

lateral agreements on such subjects as fisheries, ocean mammals,

conservation of wildlife, and prevention of pollution of the seas.

109

In recent years, especially since the U.N. Conference on the

Human Environment held in Stockholm in 1972, international co-

operation to protect the global environment has been sought

through the conclusion of many more treaties, on broader subjects

and wider scale. The International Trade Commission estimated in

the early 1990s that two-thirds of 170 environmental agreements

of significance to the United States have been concluded since

1972. It divided the agreements into eight categories: (1) Marine

fishing and whaling; (2) Land animals (including birds) and plant

species; (3) Marine pollution; (4) Pollution of air, land, and inland

waters; (5) Boundary waters between the United States and Mexico

and Canada; (6) Maritime and coastal waters matters; (7) Nuclear

pollution; and (8) Other general agreements.

110

In June 1992, the U.N. Conference on Environment and Develop-

ment (UNCED) held in Rio de Janeiro, and referred to as the Earth

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Summit, brought together the largest summit of world leaders to

date to conclude and plan for additional cooperation, including

international agreements, concerning major environmental issues.

Two conventions were presented for signature at the conference:

the United Nations Framework Convention on Climate Change

(UNFCCC), and the Convention on Biological Diversity. In addi-

tion, nations agreed at UNCED on non-legally binding documents

that were expected to result in more international agreements in

the future. These included Agenda 21, a program of action for sus-

tainable economic development; the Rio Declaration on Environ-

ment and Development; and the Statement of Principles for a Glob-

al Consensus on the Management, Conservation, and Sustainable

Development of All Types of Forests.

In the period between the Stockholm Conference and the Earth

Summit, the Senate was generally supportive of environmental

treaties and encouraged their negotiation. In the period since the

mid-1990s the Senate has evidenced concerns about some of the

broader treaties, and confined approval to somewhat more limited

measures on migratory birds, plants and fisheries issues. In the

last few days of the 106th Congress, the Senate approved the Con-

vention to Combat Desertification, the negotiation of which had

emerged from the UNCED process. The Convention on Biological

Diversity has remained pending in the Senate Committee on For-

eign Relations since 1994. In 1997 the Senate passed a resolution,

S. Res. 98, during negotiations on the Kyoto Protocol to the Cli-

mate Change Convention, warning it would not approve a treaty

that did not meet certain conditions.

RESERVATIONS CLAUSES

In approving three environmental treaties in the early 1990s—

the Basel Convention, the Environmental Protocol to the Antarctic

Treaty, and the United Nations Framework Convention on Climate

Change—the Senate expressed its concern about articles limiting

reservations. The Foreign Relations Committee has cautioned the

administration that Senate consent in these cases should not be

construed as a precedent. In addressing this concern, the adminis-

tration transmitted the Convention on Biological Diversity to the

Senate in 1994 with an interpretive statement of its ‘‘understand-

ings’’ concerning the articles that it regarded as requiring clarifica-

tion.

In the case of the Basel Convention, the chairman of the Foreign

Relations Committee made a statement in the Senate regarding

reservations. In the other two treaties that were approved, the For-

eign Relations Committee expressed its concerns in its reports. Dis-

cussion of these actions follows.

The Basel Convention on the Control of Transboundary Move-

ments of Hazardous Wastes and Their Disposal established a no-

tice and consent system to control imports and exports of hazard-

ous wastes. Article 26(1) provided:

1. No reservation or exception may be made to this Conven-

tion.

2. Paragraph 1 of this Article does not preclude a State or

political and/or economic integration organization, when sign-

ing, ratifying, accepting, approving, formally confirming or ac-

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275

111

Treaty Doc. 102–5. Done March 22, 1989; submitted to the Senate May 20, 1991; reported

May 28, 1992 (Exec. Rept. 102–36).

112

Congressional Record, August 11, 1992, p. S12293. Chairman Pell pointed out the commit-

tee had made its position on this issue clear in the past, S. Exec. Rept. No. 3, 85th Cong., 1st

Sess., p. 17, 1957.

113

Article 24 of Protocol on Environmental Protection to the Antarctic Treaty (Treaty Doc.

102–22), done October 4, 1991, and submitted to the Senate February 18, 1992. Ordered re-

ported June 11, 1992. Approved by Senate October 7, 1992.

114

Protocol on Environmental Protection to the Antarctic Treaty (Treaty Doc. 102–22). Hear-

ing, May 4, 1992. Responses of the State Department to Questions Asked by Senator Pell. Ap-

pendix, p. 37.

ceding to this Convention, from making declarations or state-

ments, however phrased or named, with a view, inter alia, to

the harmonization of its laws and regulations with the provi-

sions of this Convention, provided that such declarations or

statements do not purport to exclude or to modify the legal ef-

fects of the provisions of the Convention in their application to

that State.

111

On August 11, 1992, the Senate gave its advice and consent to

the Basel Convention with four understandings requested by the

administration. In presenting the treaty to the Senate, the chair-

man of the Foreign Relations Committee, Claiborne Pell, stated his

concern about including in treaties a provision which has the effect

of inhibiting the Senate from attaching reservations deemed nec-

essary or of preventing the Senate from exercising its right to give

its advice and consent to all treaty commitments before they can

have a binding effect. He said the Senate’s approval of these trea-

ties ‘‘should not be construed as a precedent for such clauses in fu-

ture agreements with other nations requiring the Senate’s advice

and consent.’’

112

The Basel Convention has not yet been ratified by

the United States, because of continuing debate in the Congress re-

garding the content of implementing legislation.

The Protocol on Environmental Protection to the Antarctic Trea-

ty committed parties to comprehensive protection of the Antarctic

environment and its associated and dependent ecosystems, and

designated Antarctica as a natural reserve. Article 24 stated, ‘‘Res-

ervations to this Protocol shall not be permitted.’’

113

It did not spe-

cifically permit understandings to harmonize the convention with

national laws, as did the Basel Convention. When asked why the

administration agreed to the provision, the Department of State re-

plied that it was prepared to accept all the commitments in the

protocol, subject to the adoption of appropriate implementing legis-

lation and regulations, and that therefore reservations were not re-

quired.

114

In reporting the protocol, the Foreign Relations Committee re-

corded its concern ‘‘of including in treaties a provision which has

the purported effect of inhibiting the Senate from attaching res-

ervations deemed necessary in the national interest or of prevent-

ing the Senate from exercising its constitutional duty to give its ad-

vice and consent to all treaty commitments before they can in any

way have a binding effect upon the United States.’’ It added:

Whatever justifications may have existed for inclusion of

such a prohibition in the Antarctic protocol *** or the Basel

Convention, in view of the peculiar circumstances there

present, the Senate’s approval of these treaties should not be

construed as a precedent for such clauses in future agreements

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115

Exec. Rept. 102–54, September 22, 1992. p. 7.

116

Exec. Rept. 102–55, October 1, 1992. p. 15.

117

Treaty Doc. 102–38. Adopted May 9, 1992, and signed June 12, 1992. Submitted to the

Senate September 8, 1992. Approved by the Senate October 7, 1992.

118

Exec. Rept. 102–55, p. 14.

with other nations requiring the Senate’s advice and consent.

The committee has made its position on this issue clear in the

past (S. Exec. Rept. No. 3, 85th Cong., 1st Sess., p. 17, 1957).

The President’s agreement to such a prohibition can not con-

strain 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.

115

The committee repeated this statement in its report on the

UNFCCC, which had a similar no-reservations article.

116

This con-

vention had the objective of stabilizing greenhouse gas concentra-

tions in the atmosphere at the level that would prevent dangerous

interference with the climate system, and established a framework

for addressing relevant issues with different obligations for devel-

oped and developing countries.

117

On the Climate Change Convention, the Foreign Relations Com-

mittee also noted that decisions by the parties to adopt targets and

timetables for limiting emissions would have submitted to the Sen-

ate for advice and consent. It noted further:

that a decision by the executive branch to reinterpret the Con-

vention to apply legally binding targets and timetables for re-

ducing emissions of greenhouse gases to the United States

would alter the ‘‘shared understanding’’ of the Convention be-

tween the Senate and the executive branch and would there-

fore require the Senate’s advice and consent.

118

In 1997 the parties to the UNFCCC agreed at their third Con-

ference of the Parties to adopt the Kyoto Protocol to the UNFCCC,

which outlined legally binding reductions in greenhouse gas emis-

sions for all annex I parties (developed/industrialized countries), to

cumulatively total a 5-percent reduction of greenhouse gas emis-

sions below 1990 levels by these parties averaged over the period

2008–2012. In mid-1997, as these negotiations were underway, the

Senate passed S. Res. 98, which stated that the Senate would not

approve any agreement on binding reductions in greenhouse gases

that did not include commitments by developing countries as well

as developed/industrialized countries, or that would result in harm

to the U.S. economy. The administration has not transmitted the

Kyoto Protocol to the Senate because, among other reasons, devel-

oping countries have to date not been willing to consider making

binding commitments regarding their greenhouse gas emissions.

FISHERY CONVENTIONS

Fishery treaties allocate rights to fish in specified coastal and

ocean areas, limit the total allowable catch of various species to

prevent depletion of stocks, or set international standards for har-

vesting and managing fishery resources.

Bilateral treaties have long been important for regulating inter-

national fisheries and fishing by foreign nations in coastal waters.

One of the earliest U.S. fishery treaties was the 1818 Convention

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119

Convention Respecting Fisheries, Boundary, and the Restoration of Slaves, October 20,

1818, TS 112.

120

Treaty Doc. 104–24, signed by the United States and 26 other nations on December 4,

1995. Submitted to the Senate for advice and consent on February 20, 1996; reported on June

26, 1996, Exec. Rept. 104–20; and approved on June 27, 1996.

121

Exec. Rept. 104–20, June 26, 1996.

Respecting Fisheries, Boundary, and the Restoration of Slaves, con-

cluded with Great Britain pertaining to Canada. It provided that

the inhabitants of the United States, in common with the British

subjects, ‘‘shall have forever *** the liberty to take fish of every

kind’’ in a specified area, and to dry and cure them, while the

United States renounced the liberty to take, dry, or cure fish with-

in 3 miles of the coasts not included in the specified area.

119

The

United States is now party to numerous bilateral treaties on fish-

eries, a recent example being the 1985 Treaty Between the Govern-

ment of the United States of America and the Government of Can-

ada Concerning Pacific Salmon.

Multilateral treaties on fisheries have largely developed since the

Second World War, especially after technological advances enabled

wideranging fishing fleets to increase their catch. These treaties

aim to protect identified species or fisheries in general in a specific

area, and establish a regime for regulating these fisheries and set-

tling disputes.

A recent fishery convention was the Agreement for the Imple-

mentation of the Provisions of the United Nations Convention on

the Law of the Sea of 10 December 1982 Relating to the Conserva-

tion and Management of Straddling Fish Stocks and Highly Migra-

tory Fish Stocks, sometimes called the Straddling Stocks Conven-

tion.

120

This treaty authorizes the adoption, monitoring, and en-

forcement of specific management and conservation measures to

address problems of unregulated fishing, overcapitalization, exces-

sive fleet size, vessel reflagging to escape controls, insufficiently se-

lective gear, unreliable databases, and insufficient cooperation

among nations.

In reporting the treaty, the Senate Foreign Relations Committee

stated that the agreement provides additional tools to increase the

compliance and enforcement mechanisms necessary for managing

fish stocks that migrate beyond a country’s sovereign jurisdiction.

The report noted the special significance of the agreement’s empha-

sis on the precautionary approach to fishery management, with a

description in an annex to the agreement outlining how this pre-

cautionary approach is to be applied. The committee expressed con-

cern that this agreement, in Article 42, contained a ‘‘no-reserva-

tions’’ clause that would impinge upon Senate prerogative, and re-

ported the agreement with the declaration that Senate approval of

this agreement not be construed as a precedent for acquiescence to

future treaties containing such a provision.

121

In recommending approval, Foreign Relations Committee Rank-

ing Minority Member Claiborne Pell noted that the convention con-

firms the U.S. approach to fisheries management and reflects the

acceptance by other nations of that approach, with the Magnuson-

Stevens Fishery Conservation and Management Act providing the

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122

Congressional Record, June 27, 1996, p. S7209 (daily ed.).

123

Public Law 94–265, as amended. 16 U.S.C. 1801 et seq.

124

The fishery conservation zone was modified by Presidential Executive Order No. 5030

(March 10, 1983) to become the EEZ.

125

H.R. 1653 (106th Congress) on approving a GIFA with the Russian Federation is an exam-

ple of recent legislation of this nature.

126

For a general discussion see: U.S. Congress. Senate. Committee on Foreign Relations. Con-

sular Conventions, Extradition Treaties, and Treaties Relating to Mutual Legal Assistance in

Criminal Matters (MLATS). Hearing. April 8, 1992. Washington, U.S. Government Printing Of-

fice, 1992; and Worldwide Review of Status of U.S. Extradition Treaties and Mutual Legal As-

sistance Treaties. Hearing. October 29, 1987.

127

While extradition treaties cover both obtaining suspects for trial and obtaining previously

convicted individuals for punishment, they are most commonly used for the former purpose.

128

Valentine v. United States ex. rel. Neidecker, 299 U.S. 5, 8–9 (1936).

necessary legislative authority for the United States to carry out its

obligations under this convention.

122

International agreements concerning fisheries are done by both

treaties and statutory agreements. The Magnuson-Stevens Fishery

Conservation and Management Act of 1976, as amended,

123

en-

acted exclusive fishery management by the United States within a

200 nautical mile fishery conservation zone extending seaward

from the coast.

124

It authorized foreign fishing within this zone

under Governing International Fishery Agreements (GIFAs) which

would not require submission to the Senate but would require

transmittal to Congress. These agreements would not become effec-

tive until after 60 calendar days of continuous session of Congress

following the transmittal. Congress thus gave itself an opportunity

to prevent GIFAs from entering into force.

125

The Act also called

for renegotiation of any treaty which pertained to fishing within

the EEZ, or for certain resources outside the zone.

D. L

EGAL

OOPERATION

Treaties providing for cooperation in bringing suspected crimi-

nals to trial have become increasingly important with the growth

of transborder criminal activity, including narcotics trafficking, ter-

rorism, money laundering, and export control violations. The two

chief types are extradition and mutual legal assistance treaties

(MLATs).

126

EXTRADITION TREATIES

With dramatic increases in transnational crime, personal mobil-

ity, and technological innovation, the United States has been ac-

tively seeking new treaty relationships to meet the challenges of

modern law enforcement. Renegotiation of existing extradition trea-

ties and the adoption of new extradition agreements are very much

part of this undertaking. The goal is to facilitate the transfer of fu-

gitives from a broader range of crimes, while still protecting na-

tional interests of the parties to them.

International extradition is the juridical process for the transfer

of individuals between sovereign states for criminal trial or punish-

ment.

127

Though extradition often is characterized as part law,

part diplomacy, the United States will not transfer an individual

abroad for trial or punishment unless the transfer is authorized by

treaty or statute.

128

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129

United States v. Alvarez-Machain, 504 U.S. 655 (1992) (upholding the Ker-Frisbie doctrine

by reiterating that U.S. courts may try an individual brought here after forcible abduction

abroad).

130

18 U.S.C. §§3181 et seq.

131

See M. Abbell & B. Ristau, 4 International Judicial Assistance §13–2–4(2) (1990).

U.S. courts do not require a similar legal predicate for trying or

punishing a person brought before them from abroad.

129

Neverthe-

less, extradition remains the primary process for obtaining wanted

individuals.

Extradition for a limited number of crimes is governed by multi-

lateral treaties, but extradition generally proceeds under bilateral

treaties, as implemented under Federal statute.

130

The United

States is now party to approximately 115 bilateral extradition

agreements. Of our current treaties, only about half came into

force, in whole or in part, after 1970. Treaties that pre-date 1945

still govern extradition with many of our treaty partners.

The substantive issues addressed in our bilateral extradition

treaties have remained substantially constant over time. Each trea-

ty establishes a mutual obligation of the parties to extradite in ac-

cordance with the treaty’s terms. Each treaty identifies the types

of criminal conduct to which the duty to extradite applies. Each

treaty includes various exceptions and modifications to the duty to

extradite. These commonly concern politically motivated offenses,

nationals of the requested state, and, more recently, capital crimes.

Prior proceedings against an individual in the requested state also

may affect whether he or she may be extradited. Under provisions

known as the rule of specialty, further limitations are placed on

what a party may do once an individual has been extradited to it.

For example, restrictions are placed on trying an extradited indi-

vidual for additional crimes and on transferring such an individual

to a third country.

Extradition agreements limit their application to the offenses

designated in them. The older agreements designate extraditable

offenses through inclusion of a list of covered crimes. Some, but not

all, of these agreements include an additional requirement that a

listed offense be considered a felony by both the requesting and the

requested states. The more recent extradition agreements either

supplement or supplant the list method with a general dual crimi-

nality test. Under this test, extradition may be had for any offense

that is punishable by imprisonment of at least 1 year by both the

requesting state and the requested state.

131

Limiting coverage to specifically listed offenses has lost favor be-

cause of its inflexibility. While the domestic criminal laws of most

countries expand their reach over time—to cover drug trafficking,

money laundering, computer crimes, and securities fraud, for exam-

ple—extradition practice under a ‘‘listed offense’’ treaty can adjust

correspondingly only through renegotiation. Consequently, the

United States has sought over the past 20 years to negotiate agree-

ments that define covered offenses solely in terms of dual criminal-

ity without specific reference to the nature of the underlying con-

duct.

Also, U.S. extradition agreements concluded before 1960 typically

limit the obligation to extradite to crimes committed within the ‘‘ju-

risdiction’’ of the requesting state. ‘‘Jurisdiction’’ in the context of

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132

John Basset Moore cited the following letter in his 1906 Digest of International Law: ‘‘Nei-

ther the extradition clause in the treaty of 1794 nor in that of 1842 contains any reference to

immunity for political offenses or to the protection of asylum for political or religious refugees.

The public sentiment of both countries made it unnecessary. Between the United States and

Great Britain, it was not supposed, on either side, that guarantees were required of each other

against a thing inherently impossible ** *.’’ 4 J.B. Moore, A Digest of International Law 334

(1906) (Letter of May 22, 1876, from Mr. Fish to Mr. Hoffman). See also Lubet, Extradition Re-

form: Executive Discretion and Judicial Participation in the Extradition of Political Terrorists,

15 Am. Int. L.J. 247, 249 (1982).

133

See, for example, discussion of the exception in Quinn v. Robinson, 783 F. 2d 776, 793–

803 (9th Cir. 1986).

these agreements is interpreted to mean territorial jurisdiction

only, not criminal jurisdiction. As U.S. criminal law increasingly

addresses extraterritorial acts, a disparity arises under older agree-

ments between the reach of U.S. law and our ability to bring sus-

pects to trial.

Over the past 25 years, the United States has sought to nego-

tiate extradition agreements that better accommodate the longer

reach of our criminal laws. With very limited exception, all recent

agreements make express provision for extraterritorial crimes.

Most commonly, the agreements either allow or mandate extra-

dition for extraterritorial acts if the criminal law of the requested

state would punish extraterritorial acts under similar cir-

cumstances. Some agreements further permit or require extradition

where the requesting state is basing its extraterritorial criminal ju-

risdiction on the nationality of the offender. A few newer agree-

ments state that the location of the crime is irrelevant so long as

the offense otherwise meets dual criminality requirements.

The political offense exception in international extradition prac-

tice protects an individual from being sent abroad to stand trial or

face punishment for an offense of a political nature. This exception

has been a fundamental component of U.S. extradition practice

from its inception. Indeed, even though all bilateral extradition

treaties to which the United States is a party now apparently con-

tain an express exception for political offenses, the United States

early recognized the exception even absent a political offense clause

in the pertinent treaty.

132

The existence of the political offense exception often has been

clearer than its bounds. Political offenses may fall within either of

two categories.

133

The first category is that of pure political of-

fenses, consisting of treason, espionage, sedition, and other acts di-

rected against the state as such and not against individuals. The

second category, that of relative political offenses, consists of com-

mon crimes that are so connected with political activity that the

entire offense is regarded as political. Determining the requisite

connection between a common crime and political activity often has

proved troublesome under this second category.

Even though U.S. extradition practice universally has barred ex-

tradition for political offenses, there has been a trend over the past

20 years toward narrowing the scope of the political offense excep-

tion, particularly with respect to relative political offenses. Newer

extradition treaties have excluded from consideration as political

offenses (either by specific listing or by general reference) certain

universally condemned crimes that are the subject of multilateral

agreements. Under these agreements, covering such crimes as hos-

tage taking, air hijacking, aircraft sabotage, and attacks on inter-

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134

Supplementary Extradition Treaty, June 25, 1985, U.S.-U.K., T.I.A.S. No. 12050.

135

An example of denying extradition on the basis of nationality in domestic law—treaty obli-

gations, notwithstanding—is Israel’s refusal to extradite Samuel Sheinbein, a Maryland resident

indicted in that state murder. Israel has subsequently modified its nationality restrictions.

136

The primary exceptions are some of our recent treaties with former British colonies in the

Caribbean, many of which authorize capital punishment under their criminal laws.

nationally protected persons, a party state must either prosecute a

person accused of a covered crime or extradite the person for trial

elsewhere. Flowing from an older tradition, attacks on a head of

state or the head of state’s family also are generally excluded from

political offenses.

The United States significantly departed from previous political

offense practice in 1986 with the adoption of a new supplementary

extradition treaty with the United Kingdom.

134

Under the supple-

mentary treaty, most serious violent crimes against individuals are

excluded from consideration as political offenses. The U.K. model

subsequently was used in some treaties concluded with democratic

allies (for example, Canada and Germany), but other recent trea-

ties with democratic allies (for example, Australia) have not nar-

rowed the political offense exception in line with the U.K. treaty.

The United States, like many common law countries, does not ob-

ject to extraditing its own nationals, and we have sought to nego-

tiate treaties without nationality restrictions. However, to the frus-

tration of U.S. law enforcement, many civil law countries, particu-

larly Latin American countries, still restrict extradition of their na-

tionals under their extradition agreements, their domestic law,

135

or both.

Most recent agreements continue to place some restrictions on

the extradition of nationals of the requested state, but these re-

strictions generally do not outright bar extradition. More com-

monly, the requested state has discretion to refuse extradition, but

the exercise of this discretion often is conditioned on the requested

state prosecuting the individual itself. In what may signal dimin-

ished insistence by our treaty partners on nationality restrictions,

none of the four most recent treaties considered by the Foreign Re-

lations Committee—including one with Paraguay—contains a na-

tionality clause.

Death penalty provisions have become standard in recent U.S.

extradition agreements.

136

Among their advantages, these provi-

sions permit states with capital punishment to obtain extradition

for serious crimes from states whose laws do not permit capital

punishment and who thereby might otherwise withhold surrender.

Most capital punishment provisions expressly authorize the re-

quested state to take the possibility of capital punishment in the

requesting state into account in determining whether to grant ex-

tradition. Of the approximately 30 capital punishment provisions,

none categorically bars extradition whenever the person being

sought might face capital punishment if extradited. Rather, the

capital punishment provisions generally authorize the requested

state to refuse extradition whenever the extraditable offense is

punishable by death in the requesting state, but not in the re-

quested state, unless the requesting state furnishes such assur-

ances as the requested state considers sufficient that the death

sentence will not be imposed and executed.

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137

Public Law 106–113, App. H.R. 3427, §706, 113 Stat. 1537–453.

Controversy over restricting the transfer of an extradited individ-

ual to a third party has arisen in the context of the International

Criminal Court (ICC). Beginning in 1998, the Senate has made its

advice and consent subject to an understanding on the application

of the rule of specialty provisions in the respective extradition trea-

ties it has approved. These understandings state that third-party

transfer restrictions shall preclude the resurrender of any person

from the United States to the ICC agreed to in Rome on July 17,

1998 without the consent of the United States and that the United

States is to withhold consent until the Senate gives its advice and

consent to the treaty that establishes the court. Of broader, though

more time limited, application are provisions in the Consolidated

Appropriations Act, 2000

137

that bar the use of funds to extradite

a U.S. citizen to any country that does not confirm that it will not

transfer the person to the ICC. The Act further bars the use of

funds to consent to the extradition of a citizen to any country that

is under an obligation to surrender persons to the court unless the

requesting state assures that no such surrender will occur.

MUTUAL LEGAL ASSISTANCE TREATIES

Mutual legal assistance treaties (MLATs) are a more recent type

of treaty designed to obtain evidence needed from other countries

for criminal cases and promote cooperation among law enforcement

authorities in different countries. They have proven particularly

useful in investigating and prosecuting multinational drug, money

laundering and organized crime cases.

The traditional procedure for obtaining evidence from foreign

countries has been by letters rogatory, a written request from a

court of one country to a court of another asking the court to pro-

vide evidence or some other assistance. U.S. officials have found

the letters rogatory time consuming and less satisfactory because

they were not compulsory and often produced evidence which was

inadmissible in the recipient country’s courts.

Although individual MLATs vary, they obligate each country to

provide evidence and other forms of assistance needed in criminal

cases and have certain other general characteristics. They include

procedures permitting the United States to obtain evidence in a

form admissible in U.S. courts, such as the opportunity for ade-

quate direct and cross-examination of witnesses in depositions

taken abroad, and state that the compelling of testimony and docu-

ments and the execution of the requests is to occur in accordance

with the laws of the responding state. The treaties are adminis-

tered by a central authority, the Justice Department in the case of

the United States, to be responsible for making and carrying out

requests under the treaties. They provide the means for tracking,

freezing and confiscating crime-tainted assets found beyond the

borders of the country which the crime occurred. Finally, they usu-

ally include an ‘‘escape clause,’’ under which a party may deny as-

sistance if the request does not conform to the treaty, relates to a

political or military offense not recognized by ordinary criminal

law, or if the provision of assistance would prejudice the security

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138

H. Rept. 101–493 at 46 (1990).

139

22 U.S.C. 2291h(a)(2)(A).

140

Mutual Legal Assistance Treaty Concerning the Cayman Islands. S. Exec. Rept. 101–8

(1989).

141

Senate consideration of Treaty Docs. No. 100–8 (Cayman Islands), 100–13 (Mexico), 100–

14 (Canada), 100–16 (Belgium) and 100–17 (Bahamas); 135 Cong. Rec. 25629–25637 (1989). For

resolutions of ratification, see Journal of the Executive Proceedings of the Senate, Vol. 131,

101st Cong., 1st Sess. (S. Pub. 101–10) pp. 745–747.

or essential public interests of the state to which the request was

made.

Negotiations on the first MLAT began in 1972 because of increas-

ing evidence that Swiss banks were being used to launder and hide

organized crime money. The resulting MLAT entered into force in

1977. By September 1999, MLATs entered into force with Switzer-

land, the Netherlands, Turkey, Italy, Canada, the United Kingdom

concerning the Cayman Islands, the Bahamas, Mexico, Argentina,

Thailand, Morocco, Spain, Uruguay, Jamaica, Panama, the United

Kingdom, the Philippines, Hungary, South Korea, Austria, Israel,

Antigua and Barbuda, Lithuania, St. Vincent and the Grenadines,

Grenada, and Poland.

The Foreign Relations Committee has concurred that MLATs add

an element of standardization and uniformity to criminal proce-

dures worldwide, and that the ability of criminals to hide the evi-

dence and fruits of their crimes would be diminished with the en-

hancement of international cooperation in the investigation and

prosecution of crimes. Congress has on occasion encouraged nego-

tiation of MLATs. For example, in a May 1990 conference report,

it recommended that a portion of Panama’s fiscal year 1990–1991

assistance be withheld pending ‘‘significant progress toward con-

cluding an MLAT.’’

138

And it insists that the annual International

Narcotics Control Strategy Reports include a statement of the sta-

tus of MLAT negotiations for each country with whom we have no

such treaty.

139

The Senate has sometimes inserted conditions or provisos in the

resolutions of ratification. In the 1989 MLATs with Mexico, the Ba-

hamas, Canada, Belgium, Thailand, and the United Kingdom, the

Senate adopted an understanding proposed by Senator Helms

aimed at preventing the granting of assistance to foreign officials

who engage in, encourage, or facilitate the production or distribu-

tion of illegal drugs. Senator Helms expressed the view that the

treaties could require giving assistance to corrupt officials and thus

encourage narcotics trafficking. Executive branch officials com-

plained that this understanding delayed entry into force of the

treaties because other countries took it as an accusation that their

officials were engaged in the drug trade.

Senator Helms also proposed a reservation to the MLATs consid-

ered in 1989 asserting that nothing in the treaty required or au-

thorized legislation or action by the United States prohibited by the

Constitution as interpreted by the United States. The majority of

the committee rejected the reservation as unnecessary, holding that

the MLATs do not create new grounds for which U.S. citizens could

be tried.

140

In floor consideration on October 24, 1989, however, the

Senate adopted the statement as an understanding, but without

the phrase ‘‘as interpreted by the United States.’’

141

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142

Treaty Docs. Nos. 102–16 (Jamaica), 102–18 (Argentina), 102–34 (Uruguay), and 102–21

(Spain); Ex. Repts. 102–18, 102–19, and 102–35. Advice and consent given on July 2, 1992. Con-

gressional Record (daily edition), May 21, 1992.

143

S. Exec. Rept. 105–22, advice and consent of the Senate given on November 12, 1998, 144

Cong. Rec. S12985–S12992 (daily ed. Nov. 12, 1998).

144

For example, Resolution of Ratification, U.S.-Hong Kong Mutual Legal Assistance Treaty,

reprinted in, S. Exec. Rept. 105–22 at 367 (1998): ‘‘(a) UNDERSTANDING.—The Senate’s advice

and consent is subject to the following understanding, which shall be included in the instrument

of ratification: PROHIBITION ON ASSISTANCE TO THE INTERNATIONAL CRIMINAL

COURT.—The United States shall exercise its rights to limit the use of assistance it provides

under the Treaty so that any assistance provided by the Government of the United States shall

not be transferred to or otherwise used to assist the International Criminal Court agreed to in

Rome, Italy, on July 17, 1998, unless the treaty establishing the court has entered into force

for the United States by and with the advice and consent of the Senate, as required by Article

II, section 2 of the United States Constitution.

‘‘(b) DECLARATION.—The Senate’s advice and consent is subject to the following declaration,

which shall be binding on the President: TREATY INTERPRETATION.—The Senate affirms the

application of 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.’’

These interpretative principles hold that: ‘‘(A) the United States shall interpret a treaty in

accordance with the common understanding of the Treaty shared by the President and the Sen-

ate at the time the Senate gave its advice and consent to ratification; (B) such common under-

standing is based on: (i) first, the text of the Treaty and the provisions of this resolution of rati-

fication; 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 the rati-

fication, insofar as such representations were directed to the meaning and legal effect of the

text of the Treaty; (C) the United States shall not agree to or adopt an interpretation different

In approving MLATs with Jamaica, Argentina, Uruguay, and

Spain on May 21, 1992, the committee reported both the under-

standings discussed above, but including the phrase ‘‘as interpreted

by the United States,’’ as provisos in the resolution of ratification.

The provisos specified they were not to be included in the instru-

ment of ratification signed by the President. The two provisos stat-

ed:

Nothing in this treaty 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.

Pursuant to the rights of the United States under this treaty

to deny requests which prejudice its essential public policy or

interest, the United States shall deny a request for assistance

when the Central Authority, after consultation with all appro-

priate intelligence, anti-narcotic, and foreign policy agencies,

has specific information that a senior government official who

will have access to information to be provided under this treaty

is engaged in or facilitates the production or distribution of il-

legal drugs.

142

The two provisos, with the specification that they were not to be

included in the instrument of ratification, appear in the resolutions

of ratification for the MLATs approved by the committee on Octo-

ber 14, 1998 for Australia, Barbados, Brazil, the Czech Republic,

Estonia, Hong Kong, Israel, Latvia, Lithuania, Luxembourg, Po-

land, Trinidad and Tobago, Venezuela, Antigua and Barbuda, Dom-

inica, Grenada, St. Kitts and Nevis, St. Lucia, and St. Vincent and

the Grenadines.

143

Each of the resolutions also featured a declara-

tion of interpretive principles and an understanding that treaty as-

sistance may not be transferred or used to assist the International

Criminal Code unless the Senate has given its advice and consent

to the treaty establishing the court.

144

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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 com-

mon understanding was reached in accordance with paragraph [B], that provision shall be inter-

preted in accordance with applicable United States law.’’ Flank Document Agreement to the

CRE Treaty, S. Exec. Rept. 105–1 at 23 (1997).

145

General Assembly Resolution 217 (III).

Some agreements on mutual legal assistance have been con-

cluded as executive agreements. The executive agreements have

frequently been limited to a particular investigation or to a particu-

lar type of crime and have often served as the first step toward a

more expansive MLAT. A drug information agreement with the

United Kingdom and Cayman Island authorities on access to evi-

dence needed in narcotics cases, signed July 26, 1984, contained a

section stating that if all parties were satisfied that the agreement

worked satisfactorily, the negotiation of a full mutual legal assist-

ance treaty would begin 9 months later. The treaty subsequently

concerning the Cayman Islands were extended by diplomatic notes,

constituting executive agreements, to the British Virgin Islands,

Anguilla, Turks and Caicos Islands, on November 9, 1990, and to

Montserrat on April 26, 1991.

E. H

UMAN

IGHTS

ONVENTIONS

Since the end of the Second World War, a growing number of

treaties have aimed at promoting human rights. On December 10,

1948, the U.N. General Assembly adopted the Universal Declara-

tion of Human Rights as a non-binding standard for all coun-

tries.

145

Later, nations negotiated human rights covenants, or trea-

ties, to make achievement of selected human rights a binding com-

mitment.

Although the United States has been in the vanguard of observ-

ance of human rights, the issue of entering into legally binding

human rights treaties has been controversial. While sometimes

there is a difference on the nature of human rights to be guaran-

teed, often the controversy has extended to treaties guaranteeing

human rights on which there is wide agreement. Various adminis-

tration officials and Senators have contended that human rights

should remain a matter of domestic jurisdiction and have expressed

concern that internationally determined human rights could have

an impact on rights of American citizens under the U.S. Constitu-

tion. They feared that since in the United States treaties are the

law of the land, human rights treaties could supersede national

and state laws. Other administration officials and Senators empha-

sized the value of the conventions in promoting human rights in

other countries and believed that the United States should become

a party to maintain its leadership in the human rights fields. They

contended the United States usually had a higher standard of

human rights than called for in the treaties, and in any event no

international agreement could supersede rights guaranteed by the

Constitution.

Because of this controversy, the United States has not signed or

ratified many human rights treaties, and some human rights trea-

ties have been dormant in the Senate Foreign Relations Committee

for many years. Of 50 multilateral treaties relating to human

rights concluded in organizations such as the United Nations, the

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146

For list and additional information, see The United States and International Human

Rights Treaties: A Summary of Provisions and Status in the Ratification Process, by Vita Bite.

CRS Report 95–191 F, January 20, 1995.

147

Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Mar-

riages, adopted November 7, 1962, and signed December 10, 1962; Protocol Additional to the

Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Inter-

national Armed Conflicts (Protocol I), adopted June 10, 1977, and signed December 12, 1977;

and Convention on the Rights of the Child, adopted November 20, 1989, and signed February

16, 1995.

International Labor Organization (ILO), and the Organization of

American States, the United States has ratified or acceded to 19.

146

The United States has not signed or taken any action toward rati-

fying another 20. Three have been signed but not yet submitted to

the Senate.

147

Table XI–1 shows the seven human rights treaties

still pending on the Foreign Relations Committee calendars, six

pending for more than 10 years, and one of them the longest pend-

ing treaty on the calendar.

Table XI–1.—Human Rights Treaties Pending on the Senate Foreign Relations

Committee Calendar

Treaty No. Date Pending Treaty

81–19 August 27,

1949.

ILO Convention No. 87 concerning freedom of association

and protection of the right to organize, adopted July

10, 1948

89–16 June 2, 1966 ... ILO Employment Policy Convention, adopted July 9, 1964

95–19 February 23,

1978.

International Covenant on Economic, Social and Cultural

Rights, signed by the United States October 5, 1977

95–21 February 23,

1977.

American Convention on Human Rights, signed by the

United States June 1, 1977

96–53 November 12,

1980.

Convention on the Elimination of All Forms of Discrimina-

tion Against Women, signed by the United States July

17, 1980

100–2 January 29

1987.

Protocol II Additional to the Geneva Conventions of 12

August 1949, and relating to the Protection of Victims

of Non-International Armed Conflicts, concluded June

10, 1977

106–37 July 25, 2000 .. Protocols to the Convention on the Rights of the Child,

signed by the United States on July 5, 2000

Many observers felt that the approval of the Genocide Conven-

tion on February 19, 1986, the Convention Against Torture on Oc-

tober 27, 1990, and the International Covenant on Civil and Politi-

cal Rights on April 2, 1992, signaled new progress in this area.

Senate approval of these and other human rights treaties was

achieved after negotiations among Senators and between the ad-

ministration and the Senate Foreign Relations Committee on the

types of conditions to be adopted.

U.S. ratification of human rights treaties, more often than most

other subject areas, has been subject to conditions, some added by

the Senate but many proposed by the executive branch. In areas

in which rights guaranteed in international conventions diverge

from U.S. law, administrations usually propose specific conditions

to clarify, and often limit, the obligation of the United States in

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148

Congressional Record, April 2, 1992, p. S4781 (daily ed.).

149

See also discussion of Mutual Legal Assistance Treaties, above.

these instances. While this usually facilitates Senate approval, and

sometimes the Senate adds additional conditions of this nature,

some observers in the human rights field contend that instead of

adding a limiting condition, U.S. law should be brought into con-

formance with the international standard in those areas in which

they believe the international standard is higher. For example, the

Covenant on Civil and Political Rights prohibits the imposition of

the death penalty for crimes committed by persons below the age

of 18, and Amnesty International protested a reservation made at

the request of the Bush Administration to permit capital punish-

ment of juveniles.

148

In addition to conditions specific to each human rights treaty,

general conditions have been adopted to alleviate the broader con-

cern of the effect of treaties on domestic law, sometimes in re-

sponse to administration request and sometimes on the initiative

of the Senate.

One general condition has often been added to deal with the

Federal-state structure of the United States. This makes clear that

the Federal Government will fulfill the U.S. obligation where it ex-

ercises jurisdiction and that it will take appropriate measures to

ensure that states and localities take steps to fulfill the provisions.

A second frequently added general condition is a declaration re-

garding the non-self-executing nature of the convention or parts of

the convention. In this the United States declares that certain pro-

visions are not self-executing, thus clarifying that the provisions of

the convention would not of themselves become effective as domes-

tic law.

A third general condition sometimes added is a declaration that

the United States will not deposit its instrument of ratification

until after the implementing legislation has been enacted.

Finally, the Senate has sometimes added a general condition

‘‘That nothing in the 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.’’ The ‘‘as interpreted by the United States’’ was intended to

assure that the reservation would not permit the International

Court of Justice or any other tribunal to determine what is per-

mitted by U.S. constitutional law. This was incorporated in the res-

olution of ratification for the Genocide Convention, and 12 Western

European nations filed written objections to the reservation.

149

the U.N. Convention Against Torture and the International Cov-

enant on Civil and Political Rights, the Senate added the same

statement as a proviso that was not to be included in the resolution

of ratification, rather than a reservation.

GENOCIDE CONVENTION

The Genocide Convention is an example of a treaty that encoun-

tered difficulty in obtaining Senate approval even though unanim-

ity existed that genocide was an abhorrent crime. Pending in the

Senate for 37 years, the Genocide Convention was approved on

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150

Congressional Record, February 19, 1986, pp. S1355–S1381 (daily ed.). Ex. O, 81st Cong.,

1st Sess. Exec. Rept. 99–2, July 18, 1985. The convention was adopted by the U.N. General As-

sembly on December 9, 1948, and submitted to the Senate by President Truman on June 16,

1949.

151

Genocide Convention Implementation Act, Public Law 100–602, signed November 4, 1988.

The resolution of advice and consent, instrument of ratification, and proclamation of the Geno-

cide Convention are reprinted in Appendix 9.

February 19, 1986.

150

The Foreign Relations Committee reported

the convention favorably with conditions in 1970, 1971, 1973, 1976,

and 1984. The Senate debated the convention on four occasions but

did not vote on it, and twice cloture motions to bring it to a vote

failed.

The logjam was broken in 1985 when the Foreign Relations Com-

mittee adopted four new conditions in addition to four that had

been previously recommended. The four previously recommended

conditions were understandings on the meaning of specific provi-

sions and a declaration that ratification would not be deposited

until implementing legislation bad been enacted. The new condi-

tions were:

[Reservations]

(1) That with reference to Article IX of the Convention, be-

fore any dispute to which the United States is a party may be

submitted to the jurisdiction of the International Court of Jus-

tice under this article, the specific consent of the United States

is required in each case.

(2) That nothing in the Convention requires or authorizes

legislation or other action by the United States of America pro-

hibited by the Constitution of the United States as interpreted

by the United States.

[Understandings (1, 2, and 3 omitted)]

(4) That acts in the course of armed conflicts committed

without the specific intent required by Article II are not suffi-

cient to constitute genocide as defined in the convention.

(5) That with regard to the reference to an international

penal tribunal in Article VI of the Convention, the United

States declares that it reserves the right to effect its participa-

tion in any such tribunal only by a treaty entered into specifi-

cally for that purpose with the advice and consent of the Sen-

ate.

Upon approval, the Senate also adopted S. Res. 347 stating the

sense of the Senate that the President should seek to amend the

convention by obtaining agreement to include politically motivated

genocide. The resolution was adopted in lieu of adding this as a

condition in the resolution of ratification. Implementation legisla-

tion was enacted in 1988. The convention entered into force for the

United States on February 23, 1989.

151

LABOR CONVENTIONS

The International Labor Organization (ILO), which was founded

in 1919 and is now a specialized agency of the United Nations, has

adopted more than 170 conventions. While some of these are tech-

nical and limited to a narrow sphere, many may be considered

human rights treaties because they have the broad purpose of pro-

moting the rights and welfare of labor.

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152

Treaty Doc. 99–20, ILO Convention No. 144 concerning Tripartite Consultations to Pro-

mote the Implementation of International Labor Standards, adopted June 21, 1976. Submitted

April 11, 1986. Reported with a declaration December 17, 1987, Exec. Rept. 100–11. Approved

February 1, 1988. Treaty Doc. 99–21, ILO Convention No. 147 Concerning Minimum Standards

in Merchant Ships, adopted October 13, 1976. Submitted April 11, 1986. Reported with five un-

derstandings, 18–0, Exec. Rept. 100–12. Approved February 1, 1988.

153

Ex. K, 88–1. ILO Convention No. 105 concerning the abolition of forced labor, adopted June

25, 1957. Reported May 7, 1991, with two understandings. Exec. Rept. 102–7. Approved May

14, 1991.

The United States has ratified about a dozen of these conven-

tions, primarily maritime conventions. In 1980, President Carter

established a Federal Advisory Committee to guide U.S. participa-

tion in the ILO including ratification of ILO conventions. That ad-

visory committee established the Tripartite Advisory Panel on

International Labor Standards (TAPILS) to advise on any legal im-

pediments to U.S. ratification. In 1985 the advisory committee

adopted three rules to ‘‘ensure that ratification of ILO conventions

would not be used to change domestic labor law outside the normal

legislative process.’’ The rules provided:

(1) Each ILO Convention will be examined on its merits on

a tripartite (labor, business, and government) basis;

(2) Any differences between the convention and Federal law

and practice will be dealt with in the normal legislative proc-

ess;

(3) There is no intention to change State law and practice

through ratification of ILO conventions, and examination of

conventions will include possible conflicts between Federal and

State law caused by ratification.

Subsequently, the administration submitted and the Senate ap-

proved two ILO conventions, one with a declaration and one with

five understandings, the first time since February 1953 that the

full Senate had considered an ILO convention.

152

On May 14, 1991, the Senate approved the Convention Concern-

ing the Abolition of Forced Labor which had been adopted by the

International Labor Conference on June 25, 1957, and submitted to

the Senate by President Kennedy in July 1963.

153

Parties under-

take to suppress and not use any form of forced labor as a means

of political coercion, for economic development, for labor discipline,

as a punishment for participation in strikes, or as a means of racial

or religious discrimination. The Senate approved the convention

with two understandings recommended by the Bush Administra-

tion. One, to deal with concerns about prison labor, stated that

ratification was based on interpretations of the ILO Committee of

Experts prior to that time, and subsequent interpretations would

not be binding. The other, to deal with concern about strikes con-

sidered legal by the ILO but illegal under U.S. law, stated that the

convention did not limit the contempt powers of courts under Fed-

eral and state law.

On November 5, 1999, the Senate approved ILO Convention 182,

for elimination of the worst forms of child labor. The treaty had

been adopted by the ILO in June 1999 and submitted to the For-

eign Relations Committee in August. After a hearing in October,

the committee reported the convention on November 3. The speed

of consideration and approval by the Senate Foreign Relations

Committee and the Senate was unprecedented for ILO conventions.

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154

Treaty Doc. 100–20. Signed by the United States on April 18, 1988; submitted to the Sen-

ate May 20, 1988. Reported August 30, 1990, Exec. Rept. 101–30. Approved October 27, 1990.

During the hearing on the treaty, Chairman Helms gave credit to

the treaty’s negotiators who consulted regularly with members of

the committee and committee staff. This ensured, according to the

chairman, that the treaty was consistent with the U.S. Fair Labor

Standards Act. ILO Convention 182 was the second of the eight

‘‘core’’ ILO labor standards conventions ratified by the United

States.

CONVENTION AGAINST TORTURE

The Senate approved the Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment on Octo-

ber 27, 1990.

154

The U.N. General Assembly adopted the conven-

tion on December 10, 1985. The convention requires parties to pre-

vent torture within their jurisdiction and make it a punishable of-

fense, and established a Committee Against Torture to investigate

complaints if a state has recognized its competence. The United

States had been active in its negotiation, and in 1984 Congress had

passed a joint resolution sponsored by Senators Pell and Percy sup-

porting U.S. participation in formulating international standards

and effective implementing mechanisms against torture.

President Reagan submitted the convention to the Senate on

May 20, 1988, with several proposed conditions. The Senate For-

eign Relations Committee considered that the number and sub-

stance of the conditions recommended created the impression that

the United States was not serious in its commitment to the conven-

tion, and on July 24, 1989, Chairman Pell expressed this concern.

In January 1990, President Bush submitted a revised and reduced

package that was a product of negotiations between the executive

branch, the committee, and interested private groups. The proposed

package consisted of three reservations, five understandings, and

two declarations.

The three reservations were a clause dealing with Federal-state

relations, a limitation of the meaning of ‘‘cruel, inhuman or degrad-

ing treatment or punishment’’ to punishment prohibited by the 5th,

8th, and/or 14th amendments of the U.S. Constitution, and a provi-

sion aimed at not accepting the compulsory jurisdiction of the

International Court of Justice. The understandings dealt with spe-

cific obligations including that the United States did not under-

stand the treaty to prohibit the death penalty. One of the two

statements was that Articles 1 through 16 were not self-executing.

Prior to the Senate vote on the convention, Senators Pell and

Helms, the chairman and ranking minority member of the Foreign

Relations Committee, reached agreement on four amendments to

the resolution of ratification reported by the committee.

Two amendments dealt with Federal-state relations. One elimi-

nated the Federal-state reservation and another added the follow-

ing as an understanding:

(5) That the United States understands that this Convention

shall be implemented by, the United States Government to the

extent that it exercises legislative and judicial jurisdiction over

the matters covered by the Convention and otherwise by the

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155

Congressional Record, October 27, 1990, p. S17492 (daily ed.).

156

Ex. E, 95–2. The United Nations adopted the covenant on December 1, 1966, and the

United States signed it on October 5, 1977. President Carter transmitted it to the Senate on

February 23, 1978. Approved by the Senate September 8, 1992. When the Senate approved the

covenant, 103 nations had become parties.

state and local governments. Accordingly, in implementing Ar-

ticles 10–14 and 16, the United States Government shall take

measures appropriate to the Federal system to the end that

the competent authorities of the constituent units of the

United States of America may take appropriate measures for

the fulfillment of the Convention.

In another floor amendment, the Senate added the constitutional

provision as a proviso, but not as a reservation. A reservation had

been opposed by the administration and many members of the com-

mittee. The proviso stated that the President ‘‘shall not deposit the

instrument of ratification until such time as he has notified all pro-

spective 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.’’

155

Legislation implementing the convention was included in the

Foreign Relations Authorizations Act, fiscal years 1994 and 1995

(Public Law 103–236) signed into law on April 30, 1994. The

United States ratified the convention on October 21, 1994, and it

entered into force for the United States on November 20, 1994. The

United States submitted its initial report on its compliance with

the Convention to the Committee Against Torture on October 15,

1999.

CIVIL AND POLITICAL RIGHTS COVENANT

On April 2, 1992, the Senate gave its advice and consent to the

International Covenant on Civil and Political Rights. In the cov-

enant, parties undertake to respect and ensure rights including

life, freedom of thought and religion, and freedom of expression.

The covenant also establishes a Human Rights Committee to over-

see compliance with the covenant’s provisions and to receive and

consider complaints from one party that another party has failed

to fulfill its obligations.

156

When President Carter submitted the covenant to the Senate on

February 23, 1978, the administration recommended several state-

ments, understandings, and reservations. The Senate Foreign Rela-

tions Committee held hearings in 1979, but took no further action

at that time. In 1991, the Bush Administration proposed a new

package of five reservations, five understandings, and four declara-

tions similar in many respects to those suggested by the Carter Ad-

ministration. These were included by the Senate in its resolution

of ratification. To illustrate, the United States reserved the right,

in exceptional circumstances, to treat juveniles as adults in the

criminal justice system. Regarding Article 50, which stated that the

provisions of the covenant ‘‘shall extend to all parts of federal

States without any limitations or exceptions,’’ the United States ex-

pressed the following understanding:

The United States understands that this Covenant shall be

implemented by the Federal Government to the extent that it

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157

Treaty Doc. 95–118. Signed by the United States on September 28, 1966; submitted to the

Senate on February 23, 1978. Reported May 25, 1994, S. Exec. Rept. 103–29. Approved June

24, 1994.

exercises jurisdiction over the matters covered therein, and

otherwise by the State and local governments; to the extent

that State and local governments exercise jurisdiction over

such matters, the Federal Government shall take measures ap-

propriate to the Federal system to the end that the competent

authorities of the state or local governments may take appro-

priate measures for the fulfillment of the Covenant.

Among the declarations, the United States declared that the pro-

visions of Articles 1 through 27, dealing with rights guaranteed

and activities prohibited by the covenant, were not self-executing.

The Foreign Relations Committee, and later the Senate, also ac-

cepted the following proviso, offered by Senator Helms, with the ex-

plicit statement that it was not to be included in the instrument

of ratification deposited by the President:

Nothing in this Covenant 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.

The United States ratified the covenant on June 1, 1992, and it

entered into force for the United States on September 8, 1992. The

United States submitted its initial report to the Committee on

Human Rights on Compliance with the Covenant on July 29, 1994.

RACIAL DISCRIMINATION CONVENTION

The Senate approved the International Convention on the Elimi-

nation of All Forms of Racial Discrimination on June 24, 1994.

157

The U.N. General Assembly adopted the convention on December

21, 1965. The convention requires parties to condemn and work to

eliminate racial discrimination in all its forms. The convention also

establishes a Committee on the Elimination of Racial Discrimina-

tion to review reports from parties about their implementation of

the convention’s provisions and to examine complaints by one party

against another.

President Carter’s submission of the convention to the Senate on

February 23, 1978 recommended two reservations, one statement

and one understanding. The Senate Committee on Foreign Rela-

tions held hearings in 1979, but took no further action on this trea-

ty at that time. In 1994 the Clinton Administration proposed a new

package of three reservations, one understanding and one declara-

tion. On May 25, 1994, the committee favorably reported (S. Exec.

Rept. 103–29) the convention with the conditions recommended by

the administration, and added a proviso offered by Senator Helms

which was to be included in the resolution of ratification, but not

in the instrument of ratification. On June 24, 1994, the Senate ap-

proved ratification subject to three reservations: on free speech, pri-

vate conduct, and the International Court of Justice; an under-

standing on Federal-state and local jurisdiction; a declaration that

the treaty is not self-executing; and a proviso on the U.S. Constitu-

tion.

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158

The protocols are open to signature by countries which have ratified or signed the Conven-

tion on the Rights of the Child.

159

Statement by the President regarding signature of the International Criminal Court Trea-

ty. The White House. Office of the Press Secretary (Camp David, Maryland). December 31, 2000.

160

This treaty requires ratifications (27 countries have ratified as of December 31, 2000) be-

fore it enters into force. Once established, the court will be empowered to investigate and try

individuals for war crimes, crimes against humanity, and genocide. On July 17, 1998, at the

conclusion of negotiations to draft an agreement on the court, the United States voted against

adoption of the final text.

The United States ratified the convention on October 21, 1994,

and it entered into force for the United States on November 20,

1994. The United States submitted its initial report on U.S. imple-

mentation of the convention to the Committee on the Elimination

of Racial Discrimination on September 21, 2000.

OTHER HUMAN RIGHTS TREATIES

The Clinton Administration signed the Convention on the Rights

of the Child on February 16, 1995, but withheld submission to the

Senate. Later the administration signed and submitted to the Sen-

ate two subsequently negotiated protocols to the Convention on the

Rights of the Child: Optional Protocol on the Involvement of Chil-

dren in Armed Conflict and Optional Protocol on the Sale of Chil-

dren, Child Prostitution and Child Pornography.

158

The Clinton Administration signed the Statute of the Inter-

national Criminal Court (ICC) on December 31, 2000, but did not

submit it to the Senate.

159

Congress has expressed its views on this

treaty.

160

Section 705 of Public Law 106–113 prohibits U.S. adher-

ence to the court except pursuant to a treaty, and also prohibits

funding for use by, or in support of the court without Senate advice

and consent to the treaty. Section 706 of this measure prohibits use

of funds to extradite any U.S. citizen to a foreign country or third

country that is under obligation to surrender individuals to the ICC

unless such country can assure the United States that it will not

transfer the individual to the court.

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(295)

Prepared by Sherry B. Shapiro, Information Resources Specialist of the Office of Information

Resources Management. Ann Eschete of the Office of Information Resources Management pro-

duced the bibliography in its present form.

APPENDIX 1.—TREATIES AND OTHER INTER-

NATIONAL AGREEMENTS: AN ANNOTATED

BIBLIOGRAPHY

A. I

NTRODUCTION

This selective, annotated bibliography lists English language books, articles, Fed-

eral and international documents, and other publications on issues regarding the

making, implementation, and termination of treaties in light of U.S. and inter-

national law. With respect to international law, special attention is given to the Vi-

enna Convention on the Law of Treaties and debate over its provisions. Concerning

U.S. law, the emphasis is on executive-congressional relations in the making and

termination of treaties and international agreements. A section on treaties and trea-

ty collections focuses on resources useful in locating information on U.S. treaties

throughout the treatymaking process, although a few selected compilations inter-

national in scope are identified. Guides to treaty collections and treaty research,

which may be helpful in identifying additional resources, are also described.

B. I

NTERNATIONAL

GREEMENTS AND

NTERNATIONAL

OVERVIEW

a. General

Briggs, Herbert W. The travaux preparatoires of the Vienna Convention on the Law

of Treaties. American journal of international law, v. 65, Oct. 1971: 705–712.

Briggs discusses the importance of records pertaining to the Vienna Conven-

tion on the Law of Treaties and reviews Shabtai Rosenne’s book: The Law of

Treaties: A Guide to the Legislative History of the Vienna Convention. Briggs

also considers the extent to which travaux preparatoires, including records of

the International Law Commission, might be used in interpreting the provisions

of the Vienna Convention.

Charme, Joni S. The interim obligation of article 18 of the Vienna Convention on

the Law of Treaties: making sense of an enigma. George Washington journal

of international law and economics, v. 25, no. 1, 1991: 71–114.

‘‘This article is an attempt to provide a constructive understanding of the pur-

pose, content and force of this enigmatic provision. More specifically, the article

first inquires into the binding quality of article 18. Next, the article explores

the operative motivations and intentions of the drafters of article 18.’’

Deutsch, Eberhard P. Vienna Convention on the Law of Treaties. Notre Dame law-

yer, v. 47, Dec. 1971: 297–303.

In concluding this brief survey, Deutsch writes: ‘‘The foregoing brief outline

of the more important phases of the Vienna Convention on the Law of Treaties,

and of a few of the interesting problems to which it may well give rise, should

suffice to indicate its overall vast scope and significance.’’

Elias, T.D. The modern law of treaties. Dobbs Ferry, N.Y., Ocean Publications, 1974.

272 p.

The author explains: Each chapter first examines the ‘‘evolution of the under-

lying juristice notions as adumbrated by publicists, then *** consider [s] any

relevant judicial or arbitral decisions, and finally *** summarize [s] the posi-

tion taken by the International Law Commission after a full and careful consid-

eration of the comments of Governments.’’

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296

Frankowska, Maria. The Vienna Convention on the Law of Treaties before United

States courts. Virginia journal of international law, v. 28, winter 1988: 281–391.

‘‘This Article addresses the national courts’ role in applying international law

***. The law of treaties plays a significant role on the domestic level ** *. It

is applied by national courts more often than any other rules of international

law.’’

Kearney, Richard D. Dalton, Robert E. The treaty on treaties. American journal of

international law, v. 64, July 1970: 495–561.

Ambassador Kearney, who led the United States delegation at the Vienna

Conference, and Dalton identify the Vienna Convention on the Law of Treaties

as ‘‘the first essential element of infrastructure that has been worked out in the

enormous task of codifying international law pursuant to Article 13 of the

United Nations Charter.’’ They review the development, by the International

Legal Commission, of the 75 draft articles which served as the working text for

the Vienna Conference. Kearney and Dalton then examine consideration of the

draft by representatives at the conference. They analyze the provisions of the

Vienna Convention, tracing the development of specific articles by discussing

the debates which influenced their content and form, examining the purpose

and interpretation of those articles, and evaluating the achievements of the

Convention as a whole.

McNair, Arnold Duncan. The law of treaties. Oxford, Clarendon Press, 1961. 789 p.

Partial contents.—The conclusion of treaties.—The scope and operation of

treaties.—Interpretation and application of treaties.—Termination of treaties.—

Breach of treaty.—State succession and other changes.—Effects of war.

Menon, P.K. The law of treaties between states and international organizations.

Lewiston, N.Y., Edwin Mellen Press,  1992. 259 p.

Morgenstern, Felice. International legislation at the crossroads. British year book of

international law, v. 49, 1978: 101–117.

Morgenstern discusses the scope of international legislation, as well as its ap-

propriateness and importance. The term international legislation ‘‘is used loose-

ly, to cover all international instruments susceptible of creating legal obliga-

tions by virtue of their adoption, signature or ratification (or accession thereto),

which establish uniform, harmonized or minimum principles or rules of conduct

rather than contractual mutuality between parties, and which are applicable or

potentially applicable to a plurality of States.’’ Morgenstern also considers

amendment, revision, consolidation and abrogation of international legislation,

means of avoiding conflict among international law—creating instruments, and

problems of unilateral withdrawal from international obligations.

Rosenne, Shabtai. Bilateralism and community interest in the codified law of trea-

ties. In Transnational law in a changing society; essays in honor of Philip C.

Jessup. Edited by Wolfgang Friedman, Louis Henkin, and Olifver Lissitzyn.

New York, Columbia University Press, 1972. pp. 202–227.

‘‘In this article, an attempt will be made to survey the codified law of treaties,

now embodied in the Vienna Convention on the Law of Treaties of May 23,

1969, and to evaluate it in terms of the balance struck between the interrelation

inter se of the mutual interests of the parties to a treaty on the one hand, and

the community interest in that treaty, its object and purpose, its application,

and the resolution of differences arising out of it on the other hand.’’

———. Developments in the law of treaties, 1945–1986. New York, Cambridge Uni-

versity Press, 1989. 535 p. (Cambridge studies in international and comparative

law. New series)

———. The law of treaties; a guide to the legislative history of the Vienna Conven-

tion. Dobbs Ferry, N.Y., Oceana Publications, 1970. 443 p.

Rosenne was Deputy Permanent Representative of Israel to the United Na-

tions, Chairman of the Delegation to the Conference on the Law of Treaties, and

a member of the International Law Commission. In the introduction to this

work, he discusses the codification of the law of treaties, considering ‘‘i) how the

topic ever came to be chosen in the first place; ii) its scope; iii) what kind of

problems confronted the political organs after the International Law Commis-

sion had finished its work; and iv) the organization and functioning of the Vi-

enna Conference.’’

Rosenne provides, in parallel columns, the final text of the International Law

Commission’s 1966 draft articles on the Law of Treaties and the text of the arti-

cles of the Vienna Convention in English, French, and Spanish, so readers can

note changes introduced during the Vienna Conference and can compare dif-

ferent language versions. Rosenne also provides the legislative history of each

article of the Vienna Convention indicating the introduction of each theme, the

meetings at which it was discussed, and the outcome. ‘‘References are made ex-

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297

clusively to the meeting and paragraph numbers as these appear in the appro-

priate volumes of the Yearbook of the International Law Commission, the Offi-

cial Records of the General Assembly, and the Official records of the Vienna

Conference on the Law of Treaties.’’

Sinclair, Ian McTaggart. The Vienna Convention on the Law of Treaties. Dobbs

Ferry, N.Y., Ocean Publications, 1973. 150 p. (The Melland Schill lectures)

Contents.—The scope of the Convention and its relationship to customary

law.—The conclusion and entry into force of treaties.—The application, interpre-

tation, amendment and modification of treaties.—The invalidity, termination

and suspension of operation of treaties.—Jus congens and the settlement of dis-

putes.

Stanford, J.S. The Vienna Convention on the Law of Treaties. University of Toronto

law journal, v. 20, no. 1, 1970: 18–47.

This article ‘‘first discusses the major political issues confronted by the con-

ference, for it was upon the resolution of these issues that the success or failure

of the conference turned. The article then examines the Convention itself, with

particular reference to the changes made by the conference to the draft articles

proposed by the International Law Commission. While most of the time of the

conference was devoted to resolving the legal issues raised by the various draft

articles, two major political issues dominated the conference, particularly at the

second session, and came within a hair’s breadth of bringing about its failure.

These issues were: first, universal participation in general multilateral treaties,

and second, the procedures for the peaceful settlement of disputes arising out

of the application of the articles in the Convention which establish grounds for

the invalidity, termination, suspension, or withdrawal from treaties.’’

United Nations. International Law Commission. Yearbook of the International Law

Commission. New York, The Commission, 1949.

United Nations Conference on the Law of Treaties, 2d Vienna, 1969.

Official records; summary records of the plenary meetings and of the meet-

ings of the Committee of the Whole. New York, United Nations, 1970. 350 p.

(United Nations. Document A/CONF.39/11Add.1) ‘‘United Nations publication.

Sales no.: E. 70. v. 6’’

U.S. President, 1969–1974 (Nixon). Vienna Convention on the Law of Treaties. Mes-

sage from the President of the United States, transmitting the Vienna Conven-

tion on the Law of Treaties signed for the United States on April 24, 1970.

Washington, U.S. Government Printing Office, 1971. 40 p.

At head of title: 92d Congress, 1st Session. Senate. Executive L

Includes the report of the Secretary of State, Oct. 18, 1971, describing the

major provisions of the Vienna Convention, as well as a copy of the Convention.

The Vienna Convention on the Law of Treaties: travaux preparatoires—Die Wiener

Vertragsrechtskonvention: Materilien zur Entstehung d. einzelnen Vorschr.

Hrsg., Inst. fur Internat. Angelegenheiten d. Univ. Hamburg; Inst. fur Internat.

Recht an d. Univ. Kiel; Inst. fur Volkerrecht d. Univ. Gottingen. Compiled by

Ralf Gunter Wetzel; edited and prefaced by Dietrich Rauschning. Frankfurt am

Main, Metzner, 1978. 543 p. (Dokumente-Institut fur Internationale

Angelegenheiten der Universitat Hamburg; Bd. 44)

‘‘The present documentation aims at providing those materials essential for

the theoretical study and practical use of the individual articles [of the Vienna

Convention]: in order to elucidate the history of the laborious development of

the Convention text, each article is followed by the full text of all previous ver-

sions since the Waldock Report. The general attitude of the individual States

during the ILC [International Law Commission] phase is documented in the

summaries of the second series of Waldock Reports. The ILC interpretation of

the contents of the Convention is found in the Commentary to the articles of

the Final Draft which the ILC itself adopted. Outlines, a synopsis and a bibliog-

raphy should facilitate the scholarly and practical use’’ of this documentation.

The text is in English, with German translations provided for some documents.

Villiger, Mark Eugen. Customary international law and treaties: a study of their

interactions and interrelations, with special consideration of the 1969 Vienna

Convention on the Law of Treaties. Boston, M. Nijoff; Hingham, Mass., Dis-

tributors for the U.S. and Canada, Kluwer Academic, 1985. 432 p. (Develop-

ments in international law)

Originally presented as the author’s Habilitationschrift (University of Zurich).

Widdows, Kelvin. What is an agreement in international law? British year book of

international law, v. 50, 1979: 117–149.

This article ‘‘is concerned with the term ‘treaty’ in its broadest sense. It is

an enquiry into the elements comprising a binding international agreement.’’

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Wilson, Robert R. The international law standard in recent treaties and agreements

of the United States. American journal of international law, v. 66, July 1972:

526–536.

‘‘The record of treaties and other international agreements which the United

States has concluded in the period of two decades ending in 1971 provides much

evidence of the specification of international law as a basic standard ***. For

the present purpose it is proposed to consider briefly 1) types of compromissory

clauses in agreements to which the United States is a party and in which there

are specific references to international law, 2) illustrative agreements in bilat-

eral form concerning the guaranty of foreign investments, 3) multilateral agree-

ments concerning the application of international law as a standard, without

statement as to what the law is, 4) bilateral agreements other than those relat-

ed to the guaranty of foreign investment, and 5) the possible relevance of such

agreement-making to the better understanding and development of inter-

national law.’’

Wozencraft, Frank M. United Nations arithmetic and the Vienna Conference on the

Law of Treaties. International lawyer, v. 6, Apr. 1972: 205–218.

Wozencraft, a member of the U.S. delegation to the 1968 session of the Vi-

enna Conference on the Law of Treaties, reports on the negotiating and deci-

sionmaking process at the Vienna Conference and describes a day in the life of

a U.S. delegate to the Conference. He considers controversies which arise from

the U.N. principle that each sovereign nation has an equal vote, regardless of

size or importance. Wozencraft also reviews U.S. policymaking procedures and

assesses the importance of the Conference. This article is based on an address

Wozencraft gave on June 6, 1969 at the Institute on the Law of Treaties, co-

sponsored by the Division of International Law and Foreign Trade at the Law

Center of the University of Missouri-Kansas City, and the American Society of

International Law.

b. Treaties and agreements involving international organizations

Agreements of international organizations and the Vienna Convention on the Law

of Treaties. Edited by K. Zemanek, assisted by L.R. Behrmann. New York,

Springer-Verlag, 1971. 268 p.

Papers prepared as a result of research conducted at the 1969 session of the

Center for Studies and Research, Hague Academy of International Law.

Contents.—Co-operation agreements and the law relating to agreements con-

cluded by international organizations, by D. McRae.—The capacity of inter-

national organizations to conclude headquarter agreements, and some features

of these agreements, by L. Bota.—Formal aspects of the technical assistance

agreements concluded by the UN family of organizations, by J. van Wouw.—The

capacity of international organizations to conclude treaties, by G. Hartmann.—

The concept and forms of treaties conclude by international organizations, by

C. Osakwe.—Organs competent to conclude treaties for international organiza-

tions and the internal procedure leading to the decision to be bound by a treaty;

Negotiation and conclusion of treaties by international organizations, by H.

Neuhold.

Reuter, Paul. First report on the question of treaties concluded between states and

international organizations or between two or more international organizations.

New York, United Nations, 1972. 61 p. (United Nations. Document A/CN.4/258)

At head of title: United Nations General Assembly.

United Nations. International Law Commission. The question of treaties concluded

between states and international organizations or between two or more inter-

national organizations. [New York] United Nations, 1970. 116 p. (United Na-

tions. Document A/CN.4/L.161)

Working paper submitted by the Secretary-General containing a short bibliog-

raphy, a historical survey of the question and a preliminary list of the relevant

treaties published in the United Nations treaty series.

United Nations. Secretariat. Question of treaties concluded between states and

international organizations or between two or more international organizations;

possibilities of participation by the United Nations in international agreements

on behalf of a territory. New York, United Nations, 1974. 56 p. (United Nations.

Document A/CN.4/281)

At head of title: United Nations General Assembly.

United Nations. Secretary-General, 1961–1971 (Thant). The question of treaties con-

cluded between states and international organizations or between two or more

international organizations. [New York] United Nations, 1971. 70 p. (United

Nations. Document A/CN.4/L.161/Add.1)

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‘‘Working paper submitted by the Secretary-General, containing a short bibli-

ography, a historical survey of the question and a preliminary list of the rel-

evant treaties published in the United Nations Treaty Series.’’

NEGOTIATION AND CONCLUSION OF TREATIES AND INTERNATIONAL AGREEMENTS

a. Negotiation and the treatymaking process

(1) General

Guzman, Andrew T. Why LDCs sign treaties that hurt them: explaining the popu-

larity of bilateral investment treaties. Virginia journal of international law, v.

47, summer 1998: 639–688.

Says there has been little analysis of the impact of bilateral investment trea-

ties (BITs) ‘‘on the welfare of the countries that have signed them. This article

seeks to address this large gap in the literature and contribute to a more coher-

ent understanding of BITs, their impact on foreign investment, and their effect

on the welfare of nations.’’

Hassan, Tariq. Good faith in treaty formation. Virginia journal of international law,

v. 21, spring 1981: 443–481.

In this article the author ‘‘examines the content and limitations of good faith

in international law as well as the developments leading up to its inclusion in

the 1969 Vienna Convention on the Law of Treaties. The article next analyzes

the application of this principle to the treaty formation process.’’

Kearney, Richard D. International legislation: the negotiation process. California

Western international law journal, v. 9, summer 1979: 504–513.

‘‘The United States should view the development of world law as important

to our nation’s interests and take into account the necessity of preventing world

law from slipping into procedures and forms which may later prove to be intol-

erable to us. The negotiating process is one of the areas in which care must be

taken to ensure that the development of world law is not undermined for short-

range and dubious objectives.’’

Sanders, David. Changing role of parliament: international treaties to be examined

before ratification. Parliamentarian, v. 79, Oct. 1998: 385–387.

‘‘The Clerk of the New Zealand Foreign Affairs, Defense and Trade Commit-

tee describes a new process whereby international treaties can now be scruti-

nized by Parliament before they are ratified, and highlights the problem of se-

crecy by international organizations when scrutiny is attempted.’’

The Treaty maker’s handbook. Hans Blix and Jirina H. Emerson, editors. Dobbs

Ferry, N.Y., Oceana Publications, 1973. 355 p.

This is an expanded and revised edition of a compilation of passages from

treaties which exemplify several types of constitutional rules relating to formal

treaty provisions. The material was originally prepared for use at seminars on

the law of treaties. The seminars were arranged by the Dag Hammarskjold

Foundation and held in Uppsala in 1966 and 1967.

Partial contents.—Constitutional provisions on the conclusion and application

of treaties.—Full powers.—Preambles.—Consent to be bound.—State succes-

sion.—Entry into force.—Participation clauses.—Duration.—Withdrawal, denun-

ciation and termination. Clauses on interpretation, application and settlement

of disputes.—Clauses on enforcement, breach, suspension and expulsion.—Terri-

torial application.—Internal application.—Reservations.—Clauses on relation-

ship to other treaties.—Amendment clauses.—Revision clauses.—Depositary

functions.—Types of treaties and instruments resembling treaties.—Vienna

Convention on the Law of Treaties.

(2) Multilateral treaties

Bourguignon, Henry J. The Beliolos case: new light on reservations to multilateral

treaties. Virginia journal of international law, v. 29, winter 1989: 347–386.

‘‘This article first discusses the historical context of reservations in inter-

national law and its influence on the drafters of the European Convention on

Human Rights. It then discusses the Belilos Case, the arguments of the Swiss

government and the decision of the court. The article concludes with a discus-

sion of the effects this decision will have on future disputes on the status of

treaty reservations in international law.’’

Gamble, John King, Jr. Multilateral treaties: the significance of the name of the in-

strument. California Western international law journal, v. 10, winter 1980: 1–

24.

‘‘The Vienna Convention on the Law of Treaties *** addresses the law of

treaties and hence de-emphasizes state practice, which is an important aspect

of treaty-making ***. The focus here will be on all multilateral treaties enter-

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ing into force between 1919 and 1971, specifically those appearing in the

League of Nations Treaty Series and the United Nations Treaty Series. The

ability to look macroscopically at fifty years of multilateral treaty-making per-

mits certain questions to be addressed ***. One example of this macroscopic

perspective concerns the name of the instrument in the case of multilateral

treaties.’’

Multilateral treaties: index and current status. Compiled and annotated within the

University of Nottingham Treaty Centre by M.J. Bowman and D.J. Harris. St.

Paul, Minn., Mason Pub. Co., 1984. 516 p.

United Nations. Secretary-General, 1972–1981 (Waldheim). Review of the multilat-

eral treaty-making process. [New York] United Nations, 1981. 66, 7, 2, 18, 4 p.

At head of title: United Nations General Assembly.

———. Review of the multilateral treaty-making process. [New York] United Na-

tions, 1980. 37, 41, 54 p. (United Nations. Document[s] A/35/312; A/35/312/

Add.1; A/35/312/Add.2)

World Peace Through Law Center. Multilateral treaties, conventions, protocols and

agreements of the United Nations and the specialized agencies. (List) prepared

to accompany the address of Earl Warren *** to the Geneva World Conference

on World Peace through Law, July 9–14, 1967. Geneva, World Peace through

Law Center, [1967] 44 p.

b. Amendments, interpretive declarations, and reservations

Adede, A.O. Amendment procedures for conventions with technical annexes: the

IMCO experience. Virginia journal of international law, v. 17, winter 1977: 201–

215.

This article examines the experience of the Intergovernmental Maritime Con-

sultative Organization with technical conventions in the maritime field which

‘‘led it to conclude that different procedures should be established to amend the

technical annexes or appendices to a convention than those used to amend the

basic provisions contained in the main articles of a convention.’’

Gamble, John King, Jr. Reservations to multilateral treaties: a macroscopic view of

state practice. American journal of international law, v. 74, Apr. 1980: 372–394.

‘‘State practice in the area of reservations is surveyed, in very general terms,

for the period from 1919 to 1971. The post-World War II period (1947–1971) will

be examined in somewhat more detail in order to classify and categorize res-

ervations. Adopting a broad (rather than a narrow) view of all multilateral trea-

ties permits a more accurate overall assessment of the constructiveness of the

role played by reservations.’’

Gormley, W. Paul. The modification of multilateral conventions by means of ‘‘nego-

tiated reservations’’ and other ‘‘alternatives’’: a comparative study of the ILO

and Council of Europe. Fordham law review, v. 34, Oct. 1970: 59–80; v. 39, Mar.

1971: 413–446.

‘‘Although the special techniques developed within the ILO [International

Labour Organization] and Council of Europe will not be adopted by the world

community, it is possible that some help, or at least insight, may be gained from

an examination of the unique procedures used by these two organizations ***.

‘‘The specific purpose of this study is first, to examine the use of the flexibility

device as an alternative (to the typical reservation) originally developed by ILO

but later adopted by the Council; and secondly, to trace the evolution of the ne-

gotiated reservation subsequently emerging in the Council of Europe, which

grew out of earlier concepts.’’

Inter-American Juridical Committee. Reservation of theoretical adherence to multi-

lateral treaties. Report prepared in accordance with Resolution XI of the fourth

meeting of the Inter-American Council of Jurists. Washington, Pan American

Union, 1961. 5 p.

Koh, Jean Kyongun. Reservations to multilateral treaties: how international legal

doctrine reflects world vision. Harvard international law journal, v. 23, spring

1982: 71–116.

‘‘By examining the evolution of the doctrine of reservations in this century,

this Comment *** [explores] how the successive versions of the doctrine reflect

the changing conception of multilateral conventions, and *** [illustrates] how

a tiny nugget of treaty law provides a battleground for the clash between two

basic opposing visions of the world: a world composed of autonomous states ver-

sus an integrated world order.’’

McRae, D.M. The legal effect of interpretative declarations. British year book of

international law, v. 49, 1978: 155–173.

‘‘The issue, then, is whether an interpretative declaration, which by virtue of

Article 2(1)(d) of the Vienna Convention is not a ‘reservation,’ has any legal sig-

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nificance. Should other parties to the treaty, faced with an interpretative dec-

laration attached to an instrument of ratification or accession, ignore it, or ac-

cept or reject it, depending on whether they agree or disagree with it? What is

the consequences of any of these actions?’’

Mendelson, M. H. Reservations to the constitutions of international organizations.

British year book of international law, v. 42, 1971: 137–171.

‘‘It is the purpose of this article to explore the law and practice on reserva-

tions to the constitutions of the relatively homogeneous group of organizations:

the League of Nations, the United Nations and the Specialized Agencies of the

United Nations.’’

Sztucki, Jerzy. Some questions arising from reservations to the Vienna Convention

on the Law of Treaties. German yearbook of international law, v. 20, 1977: 277–

305.

‘‘Space limits compel the author to confine the present remarks to some se-

lected questions which either are specific for the Convention under consider-

ation or appear to have come into prominence in its context, namely: the ques-

tion of self-applicability of the Convention regime of reservations, questions

arising from reservations to Art. 66, and the question of separability of treaty

provisions in the process of concluding treaties.’’

c. Acceptance, depositary, registration and publication

(1) Acceptance

Ruda, Jose Maria. The final acceptance of international conventions. Muscatine,

Iowa, Stanley Foundation, 1976. 29 p.

The author, a Justice on the International Court of Justice, discusses the pace

accomplished in securing final acceptance of treaties. He writes, ‘‘States get ac-

tively engaged in the preparation of conferences or in long debates in inter-

national organizations drawing up multilateral conventions. They even sign the

documents without much hesitation; however the same States are reluctant or

slow in assuming international obligations by ratifying or acceding to the in-

struments, except in cases where a direct political interest of the State is at

stake.’’ Ruda reviews why there are delays in securing acceptance of treaties,

and he proposes actions on the international and national level which might fa-

cilitate treaty acceptance.

United Nations Institute for Training and Research. Wider acceptance of multilat-

eral treaties. New York, The Institute, 1969. 213 p.

‘‘This study ascertains empirically to what extent the extrinsic factors, such

as constitutional-parliamentary procedures, administrative mechanics, person-

nel requirements, translation facilities, ‘final’ clauses, and others operate as im-

pediments to acceptance. It also describe to what extent lack of ‘definitive suc-

cession’ has impaired the continued application of treaties extended by the pred-

ecessor Governments ***. The study analyzes and describes the range of na-

tional and international measures for the wider acceptance of treaties which in-

clude, among others, appeals and exhortation, provision of advisory services and

technical assistance, wider dissemination of information, revision of treaties and

special national administrative machinery for treaty work.’’

(2) Depositary

Rosenne, Shabtai. The depositary of international treaties. American journal of

international law, v. 61, Oct. 1967: 923–945.

The ‘‘International Law Commission’s Draft Articles on the Law of Treaties

contain three articles—articles 71, 72, and 73—dealing directly with the deposi-

tary of an international treaty; and throughout the Draft Articles are to be

found other provisions which directly or indirectly relate to the same institution

of contemporary international law and relations ***. This is of particular sig-

nificance in relation to the very important and practical matter of the time from

which a treaty enters into force or terminates, whether generally or in relation

to a particular state, or as from which other action relating to a treaty takes

legal effect in relation to the other parties to that treaty. Taken together, all

these provisions place into a sharper focus than previously the juridical charac-

teristics of the role and functions of the depositary in modern international law,

and the prolonged discussions in the International Law Commission, especially

on what is now Article 73, brought to light many difficult practical questions

requiring solution.’’

———. More on the depositary of international treaties. American journal of inter-

national law, v. 64, Oct. 1970: 838–852.

‘‘The purpose of this article is to bring up to date *** The Depositary of

International Treaties *** in the light of the deliberations of the United Na-

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tions Conference on the Law of Treaties in 1968 and 1969 and the changes

there made in the texts. The relevant provisions now appear as Articles 76, 77,

and 78 of the so-called Vienna Convention on the Law of Treaties, correspond-

ing to Articles 71, 72 and 73 of the draft articles on the Law of Treaties of the

International Law Commission.’’

(3) Registration and publication

Tabory, Mala. Recent developments in United Nations treaty registration and publi-

cation practices. American journal of international law, v. 76, Apr. 1982: 350–

363.

‘‘The framework for the systemactic registration and publication of inter-

national agreements on an intergovernmental level was set *** in Article 102

of the United Nations Charter ***. The United Nations has devoted consider-

able effort to the implementation of Article 102 by developing a set of Regula-

tions to put into operation the registration and publication functions ***. The

Treaty Section of the Office of Legal Affairs in the UN Secretariat carries out

the functions of registration and publication of treaties and international agree-

ments.’’

ENTRY INTO FORCE

Reiff, Henry. The proclaiming of treaties in the United States. American journal of

international law, v. 44, July 1940: 572–576.

‘‘The present writer in an article in the journal in January, 1936, concluded

that the proclaiming of treaties is not essential to their validity as law of the

land; that treaties become effective domestically when they come into force

internationally; and that the President’s proclamation serves to announce facts

with regard to the perfecting of the treaty internationally and to enjoin obedi-

ence. Dr. [Hunter] Miller concurred in those conclusions and not only supplied

additional historical data in support of them but also extended the discussion

of the central problem, examined in that article. The gist of these data and ob-

servations is given’’ in this article.

Rogoff, Martin A. The international legal obligations of signatories to an unratified

treaty. Maine law review, v. 32, no. 2, 1980: 263–299.

‘‘It is the thesis of this Article that general international law imposes on the

signatories to a treaty the obligation not to defeat the object and purpose of that

treaty prior to its entry into force ***. After examining the existence and na-

ture of the obligation, the Article concludes with a discussion of the content of

the obligation and attempts to discern its contours and extent.’’

Rosenne, Shabtai. The temporal application of the Vienna Convention on the Law

of Treaties. Cornell international law journal, v. 4, fall 1970: 1–24.

‘‘Any examination of the Vienna Convention on the Law of Treaties of 23 May

1969 must commence by recalling the obvious truism that this Convention is

never applied alone, but always in conjunction with another treaty for which

it may supply residual rules ***. Our major concern here is the temporal rel-

ativity of the Vienna Convention in relation to another treaty, the rules for the

temporal conflict of laws. An examination of this aspect will demonstrate that

it is insufficient to speak merely of the retroactivity or the non-retroactivity of

the Vienna Convention. In each case, one must establish the space of time with-

in which any one of the rules contained in the Convention controls another trea-

ty, whether absolutely, as a residual rule, or as a matter of procedure.

‘‘The foregoing leads to the conclusion that the Vienna Convention on the

whole speaks not ex tunc, from some unascertainable date in the future, but

from the date of its formulation. The nature, object and purpose of the Vienna

Convention, together with the specific terms of article 4, require minimizing

and not maximizing the negativing effect of that article, to the extent consonant

with good faith and the intention of the negotiating states.’’

Rubin, Alfred P. The international legal effects of unilateral declarations. American

journal of international law, v. 71, Jan. 1977: 1–30.

‘‘When the ICJ [International Court of Justice] formulates a rule of inter-

national law giving binding force to a unilateral declaration of a state’s future

intentions, statesmen may be expected to refer to that formulation for guidance

whenever they consider the possibility of issuing a declaration of future policy

***.

‘‘The Court applied the asserted rule to a series of unilateral declarations by

France concerning the French intention to abstain from future atmospheric nu-

clear tests in the South Pacific area, holding that the Australian application,

asking the Court to adjudge that ‘the carrying out of further atmospheric nu-

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clear weapons tests in the South Pacific Ocean is not consistent with applicable

rules of international law,’ and the New Zealand application asking the Court

to adjudge ‘that the conduct by the French government of nuclear tests in the

South Pacific region that give rise to radioactive fallout constitutes a violation

of New Zealand’s rights under international law,’ each presented a ‘claim ***

[that] no longer has any object.’

‘‘This article will examine the asserted rule in some detail as a statement of

a purported norm of general international law and as applied to the facts in

the Nuclear Tests cases, and will conclude by pointing out some implications

of these cases for the future of the Court.’’

Schachter, Oscar. The twilight existence of nonbinding international agreements.

American journal of international law, v. 71, Apr. 1977: 296–304.

This editorial comment urges recognition of the role that nonbinding agree-

ments, such as the Final Act of the Conference on Security and Cooperation in

Europe, can play in the international legal order, since nonbinding agreements

are sometimes attainable when binding treaties are not.

Schmidt, Markus G. Individual human rights complaints procedures based on

United Nations treaties and the need for reform. International and comparative

law quarterly, v. 41, July 1992: 645–659.

‘‘The right of individuals to complain about alleged violations of their human

rights to expert bodies established under United Nations human rights instru-

ments is one of the major achievements of UN efforts ***. Three expert com-

mittees currently implement treaty-based individual complaints procedures: the

Human Rights Committee, the Committee on the Elimination of Racial Dis-

crimination *** and the Committee against Torture ** *. With some degree of

simplification, individual complaints registered under one of the above proce-

dures are considered in three stages.’’

Vazquez, Carlos Manuel. Treaty-based rights and remedies of individuals. Columbia

law review, v. 92, June 1992: 1082–1163.

‘‘This article examines what is meant by the statement that individuals do

not have rights under treaties as a matter of international law ***. Individuals

lack the power to set in motion the machinery of international law for enforcing

treaty obligations.’’

Vierdag, E. W. The law governing treaty relations between parties to the Vienna

Convention on the Law of Treaties and states not party to the Convention.

American journal of international law, v. 76, Oct. 1982: 779–801.

‘‘The likelihood that numerous treaties will be concluded between states that

are not parties to the Convention poses the following question: if Article 4 is

not a general participation clause, then what law does govern such treaties? We

will attempt to answer this question by examining the meaning of article 4, and

to that end, by first tracing its origins. We will then consider the provision, hy-

pothetically, as a general participation clause and point out some of the con-

sequences of this interpretation. Next we will inquire whether Article 4 should

rather be understood as allowing the application of the convention to a treaty

as regards some parties inter se, even though other parties to the treaty would

not be bound by the convention, and their participation would thus be governed

by customary law. It must then be asked whether the provisions of the Conven-

tion and rules of customary treaty law are compatible. Finally, we will attempt

to indicate a possible solution to these problems.’’

INTERPRETATION

Chang, I-ting. The interpretation of treaties by judicial tribunals. New York, AMS

Press [1968] 196 p. (Studies in history, economics, and public law, no. 389)

Series statement also appears as: Columbia University studies in the social

sciences, 389, reprint of the 1933 ed.

‘‘The interpretation of treaties is, perhaps, one of the most confused subjects

in international law. The author proposes in this study to treat the subject sci-

entifically by analyzing the decisions of international tribunals and also a few

instructive cases decided by national courts on interpretation of treaties, to see,

in each case, what issues were actually involved, how they were decided, and

what methods of approach were used by the tribunal in handling the case. The

author hopes that by this method he may be able to draw from judicial practices

accurate conclusions on the interpretation of treaties. Before examining the

cases, it is useful, as a preliminary, to study the nature of legal interpretation.’’

A bibliography of articles, books, and documents relating to the judicial inter-

pretation of treaties is provided.

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Friesen, Jeffrey L. The distribution of treaty-implementing powers in constitutional

federations: thoughts on the American and Canadian models. Columbia law re-

view, v. 94, May 1994: 1415–1450.

Comment ‘‘examines the United States treaty-implementation framework and

criticisms of it *** presents the Canadian scheme and its critics ** * suggests

how the comparison of the American and Canadian models may guide those

who seek to effect new or changing federations.’’

Germer, Peter. Interpretation of plurilingual treaties: a study of art. 33 of the Vi-

enna Convention on the Law of Treaties. Harvard international law journal, v.

11, 1970: 400–427.

Germer discusses the drafting, meaning, and operation of Article 33 of the Vi-

enna Convention. ‘‘The Vienna Convention does not set forth a rigid formula for

the interpretation of plurilingual treaties, but adheres to the idea that whether

the obscurity is found in all texts or arises from the plurilingual form of the

treaty, the first rule for the interpreter is to look for the meaning intended by

the parties to be attached to the term by applying the standard rules for the

interpretation of treaties.’’

Halberstam, Malvina. A treaty is a treaty is a treaty. Virginia journal of inter-

national law, v. 33, fall 1992: 51–68.

‘‘While questions concerning the ABM Treaty and the INF Treaty no longer

have the pressing immediacy they had at the time they arose, the question

whether a treaty can have different meanings domestically and internationally

has continuing importance far beyond the proper interpretation of the treaties

***. This article takes the position that a treaty cannot have different mean-

ings domestically and internationally.’’

Jacobs, Francis G. Varieties of approach to treaty interpretation with special ref-

erence to the draft convention on the law of treaties before the Vienna Diplo-

matic Conference. International and comparative law quarterly, v. 18, 1969:

318–346.

‘‘There has been a continuing controversy over the principles of treaty inter-

pretation culminating in considerable criticism of the articles on interpretation

formulated by the International Law Commission in its Draft Convention.’’ ‘‘The

object of this paper is to analyse and assess the approach of the International

Law Commission in the light of this controversy ***. A detailed comparison

with rival approaches is necessary to appreciate the precise implications of the

articles in the Convention. But there is also room for argument about the prop-

er functions of roles of interpretation in international law. The paper ends,

therefore, with an attempt to clarify the relevant issues of policy.’’

Lipstein, Kurt. Some practical comparative law: the interpretation of multi-lingual

treaties with special regard to the EEC treaties. Tulane law review, v. 48, June

1974: 907–915.

The author examines a ‘‘problem that requires both legal and linguistic tech-

niques derived from foreign law. This is the problem of interpreting bilingual

or multi-lingual treaties.’’

McDougal, Myres S. The International Law Commission’s Draft Articles upon Inter-

pretation: textuality redivivus. American journal of international law, v. 61, Oct.

1967: 992–1000.

‘‘The great defeat, and tragedy, in the International Law Commission’s final

recommendations about the interpretation of treaties is in their insistent em-

phasis upon an impossible, conformity-imposing textuality. This unhappy em-

phasis makes an appearance in, and dominated, the goal for interpretation

which the Commission implicitly postulates but never critically examines; the

deprecatory appraisal which the commission offers of the potentialities that in-

here in the rational employment of principles of interpretation; and the content

and ordering of the particular principles which the Commission puts forward for

canonization as ‘obligatory’ rules of law.’’ ‘‘In explicit rejection of a quest for the

‘intentions of the parties as subjective element distinct from the text,’ the Com-

mission adopts a basic approach which demands merely the ascription of a

meaning to a text.’’

Munday, R.J.C. The uniform interpretation of international conventions. Inter-

national and comparative law quarterly, v. 27, Apr. 1978: 450–459.

‘‘The House of Lords denial in Buchanan [James Buchanan & Co. Ltd v.

Babeo Forwarding & Shipping (U.K.) Ltd. that there exists any initial presump-

tion in favour of adopting a liberal interpretation of international conventions

is calculated to assist in restricting the scope for national variations ***. The

more closely courts adhere to the ordinary and natural meaning of the words

of the agreed text, the less opportunity there will be for wide divergences in

their construction at home and abroad ***. In the absence of any supreme

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international jurisdiction capable of resolving differences between national

courts, the most effective approach for all states concerned is to pay serious

heed to one another’s case law.’’

Peace Palace (Hague, Netherlands). Library. Interpretation des traites a la lumiere

de la Convention de Vienne de 1969 sur le droit des traites: bibliographie—In-

terpretation of treaties in the light of the 1969 Vienna Convention on the law

of treaties: bibliography. Preparee par la Bibliotheque du Palais de la paix. [La

Haye] Centre d’etude et de recherche de l’Academie de droit international de La

Haye, 1970. 26 leaves.

Contents.—The law of treaties in general.—The work of the International

Law Commission with regard to the law of treaties.—The Vienna Conferences

on the Law of treaties.—Interpretation of international law.—Interpretation of

international treaties.—Different methods of interpretation.—Supplementary

means of interpretation.—Interpretation of treaties in two or more languages.—

Interpretation of treaties by international courts.—Interpretation of treaties by

international arbitration.—Interpretation of the European treaties.—Interpreta-

tion of treaties by international organizations.—Interpretation of treaties by na-

tional courts of justice.—Interpretation of treaties in the Vienna Convention of

1969 on the Law of Treaties.

Pickert, Perry L. Draft articles for the expansion of authoritative interpretation of

United States treaties. Brooklyn journal of international law, v. 2, spring 1976:

205–227.

‘‘This paper discusses the problems caused by the abuse of unilateral interpre-

tation of international law and of treaties and suggests draft articles for inclu-

sion in bilateral and multilateral treaties and in the constitutions of inter-

national organizations. The articles provide for compulsory settlement by the

International Court of disputes arising from the interpretation or application of

such treaties or constitutions.’’

Ris, Martin. Treaty interpretation and ICJ recourse to travaux preparatoires: to-

wards a proposed amendment of articles 31 and 32 of the Vienna Convention

on the Law of Treaties. Boston College international and comparative law re-

view, v. 14, winter 1991: 111–136.

‘‘Comment examines recourse to travaux preparatoires documents which pro-

ceed the final text of a treaty by the ICJ International Court Justice in the in-

terpretation of treaties. Part I introduces the standard doctrines of treaty inter-

pretation and their definition and proposed usage of travaux preparatoires. Part

II then examines recourse to travaux preparatoires in representative cases and

advisory opinions of the ICJ ***. This Comment proposed an amendment to ar-

ticles 31 and 32 of the Vienna Convention that could facilitate reliable ICJ re-

course to travaux preparatoires.’’

Rosenne, Shabtai. Interpretation of treaties in the Restatement and the ILC’s draft

articles: a comparison. Columbia journal of transnational law, v. 5, no. 2, 1966:

205–330.

‘‘In this article an attempt will be made briefly and in somewhat general

terms to compare those parts of the [American Law Institute’s] Restatement [of

the Foreign Relations Law of the United States] which deal with the interpreta-

tion of treaties on the international level, i.e., sections 146, 147, 148, and 153

*** with the corresponding articles of the International Law commission’s

draft, i.e., articles 27, 28 and 29 (matching sections 146, 147, and 148) and 59

(matching section 153).’’ In the notes, Roseanne presents a legislative history

of articles 27, 28, 29 and 59 of the International Law Commission’s draft.

Schwarzenberger, George. Myths and realities of treaty interpretations—Articles

27–29 of the Vienna Draft Convention on the Law of Treaties. Current legal

problems, v. 22, 1969: 205–227.

Schreuer, C.H. The interpretation of treaties by domestic courts. British year book

of international law, v. 42, 1971: 255–301.

Sharma, Surya P. The ILC draft and treaty interpretation with special reference to

preparatory works. Indian journal of international law, v. 8, 1968: 367–398.

‘‘The above analysis seeks to demonstrate the inadequacy of the textualist ap-

proach. Articles 27 and 28 of the Draft Articles, now adopted by the Committee

of the Whole of the Vienna Conference, do not represent an established law of

interpretation. For clarity in thought and rationality in dispute-solving, all the

available sources of evidence, without any arbitrary weightage and hierarchical

distinction, must be open for the purposes of interpretation. Relegating the cir-

cumstances attending the conclusion of the treaty, including recourse to pre-

paratory work, to a secondary position will make the actual dispute-solving

more difficult, rather than easy, and to say the least it is not an established

practice.’’

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Stewart, George A. Interpreting the child’s right to identify in the U.N. Convention

on the Rights of the Child. Family law quarterly, v. 26, fall 1992: 221–233.

Discusses Article 8, the right to identity, under which a child has the right

to preserve his or her nationality, name and family relations as recognized by

law without unlawful interference.

Sutter, Bryan L. The nonproliferation treaty and the ‘‘New World Order.’’ Vander-

bilt journal of transnational law, v. 26, Apr. 1993: 181–212.

‘‘The Treaty on the Non-Proliferation of Nuclear Weapons (NPT or Treaty)

faces either extinction or extension in 1995, when the NPT signatories will meet

to decide its fate ***. Many state have expressed reservations about extending

the Treaty. This Note considers the implications of those reservations as well

as arguments favoring extension and examines the Treaty’s strengths and

weaknesses. The author concludes that the Treaty should remain in force.’’

Tammelo, Ilmar. Treaty interpretation and practical reason; towards a general the-

ory of legal interpretation. Sydney, Melbourne, Law Book Co., 1967. 110 p.

(Studies in legal method series, no. 1)

Partial contents.—Leading ideas and main problems of treaty interpreta-

tion.—Views of international courts on treaty interpretation.—Work of the Insti-

tute of International Law on treaty interpretation.—Work of the International

Law Commission on treaty interpretation.—Rhetoric as a foundation of treaty

interpretation.—Treaty interpretation and practical reason.—Annex A: Note on

the maxim interpretation cessat in claris.—Annex B: Remarks on inter, prater,

and contra legem interpretation.—Annex C: Remarks on the concept of mean-

ing.—Annex D: Remarks on the concept of reason.—Annex E: The Vattelian

Armoury and the logical status of its cannons.—List of international cases rel-

evant to treaty interpretation.

Treaty interpretation: the proper role of an impartial tribunal. In American Society

of International Law. Proceedings *** 63d annual meeting held at Washington,

D.C., v. 63, 1969: 107–140.

Leo Gross surveys various perspectives on the role of an international tribu-

nal in treaty interpretation. He reviews draft articles 27 and 28 of the Inter-

national Law Commission, which were adopted by the Committee of the Whole

of the U.N. Conference on the Law of Treaties. Gross suggests ‘‘the Commis-

sion’s deliberate emphasis on the text as the starting point of interpretation is

not directed against the contextual interpretation, which in fact is specifically

included in Article 27 in some illustrative detail.’’

Gidon Gottlieb considers ‘‘what the proper role of an international tribunal is

when it interprets treaties on the basis of the Vienna Articles.’’ He reviews var-

ious viewpoints on the roles of texts and shared expectations in the interpreta-

tions of agreements. Gottlieb writes: ‘‘States now look to the interpretation of

the texts they adopt rather than to deference to their shared subjectivities of

expectations. This does not in any way mean that context, objects and purposes,

preparatory work and other relevant materials are out of place in the interpre-

tation of texts. What states want is that their texts, their agreements be inter-

preted, not their shared subjectivities ***. Under international law, texts were

always at least the starting point of interpretation. Judicious resort to the

travaux preparatoires and sensitivity to context must never permit the inter-

preter to lose sight of this textual starting point.’’

Following the papers are summaries of comments and related discussion by

Myres McDougal, Michael Barkun, Anthony D’Amato, Zaim Imam, Oscal

Schachter, Burns Weston, Louis Henkin, Thomas Franck, W. Michael Reisman,

Stanley Metzger, Kenneth Carlston, John Wolff and George Wells.

Wippman, David. Treaty-based intervention: who can say no? University of Chicago

law review, v. 62, spring 1995: 607–687.

‘‘Can a state by treaty lawfully authorize forcible external intervention in its

internal affairs? ***. Given the variety of treaties—extant or proposed—that

would permit forcible intervention in states’ internal affairs *** it is time for

a fresh look at the arguments for and against their validity under international

law.’’

Wirth, David A. Multilingual treaty interpretation and the case of SALT II. Yale

studies in world public order, v. 6, spring 1980: 429–470.

‘‘Evaluates proposed solutions to the difficulties of multilingual treaty inter-

pretation as applied to a concrete problem, the Common Understanding to Para-

graph 8 of Article IV of SALT II. First, the precise meaning of the English and

Russian texts is examined *** Then, ** * various doctrines prescribing resolu-

tion discrepancies *** are applied to, and evaluated in the context of this provi-

sion.’’

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Yambrusic, Edward Slavko. Treaty interpretation: theory and reality. Lanham, Md.,

University Press of America,  1987. 298 p.

Yu, Tsune-Chi. The interpretation of treaties. New York, AMS Press [1968] 288 p.

MODIFICATION

SUSPENSION

AND TERMINATION OF TREATIES

a. Overview

Beilenson, Laurence W. The treaty trap; a history of the performance of political

treaties by the United States and European nations. By Laurence W. Beilenson,

assisted by Bernard M. Dain. Washington, Public Affairs Press [1969] 344 p.

Beilenson examines political treaties negotiated by European nations and the

United States from 1661–1965, analyzing why certain treaties were broken or

honored, and whether the objectives of specific treaties were met. He considers

whether there are any consistent patterns in the types of treaties which were

abrogated. Beilenson also evaluates the wisdom of relying on treaties and sug-

gests when to rely on existing treaties and when to make new treaties. He pro-

vides an extensive bibliography and a chronological index of the treaties cited.

Bilder, Richard B. Managing the risks of international agreement. Madison, Univer-

sity of Wisconsin Press [1981] 302 p.

‘‘This book discusses a variety of techniques by which nations can manage the

risks of their international agreements and other cooperative arrangements

***. Chapter 1 is a general discussion of the nature and importance of inter-

national agreements, the problems of risk, the options open to nations in at-

tempting to deal with these problems, and some caveats to this study. Chapter

2 is a survey of very general risk-management techniques, designed to give a

nation broad protection against the risk that it may later decide, for any reason,

that it no longer wishes to participate in the agreement, and to give it flexibility

to limit or escape from its obligations if it subsequently changes its mind. Chap-

ter 3 is a survey of techniques designed specifically to protect a nation against

the risk that the intrinsic value of the agreement to it may decline. Chapter

4 is a survey of techniques designed specifically to protect a nation against the

risk that its potential treaty partner or partners may not perform the obliga-

tions promised, or may do so inadequately. Chapter 5 discusses some general

limitations on the use of the specific risk-management techniques dealt with in

the study; the relevance of alternative risk-management approaches, particu-

larly attitudes of trust; and some things that might be done to make risk man-

agement more effective.’’

Briggs, Herbert W. Procedures for establishing the invalidity of termination of trea-

ties under the International Law Commission’s 1966 Draft Articles on the Law

of Treaties. American journal of international law, v. 61, Oct. 1967: 976–989.

The author ‘‘served as a member of the International Law Commission from

1962 to 1966 and was chairman of the Commission’s Drafting Committee during

the session in which the Draft Articles were finally adopted.’’

In introductory comments, Briggs writes: ‘‘Without underestimating the many

positive contributions which the International Law Commission’s Draft Articles

make to the codification and progressive development of the law of treaties, one

should nevertheless note the heavy concentration of articles on nullity, invalid-

ity, denunciation, withdrawal, suspension, or termination of treaty obligations.

It is in these articles, which do less to reinforce the obligation to observe trea-

ties than to provide lawful grounds for invoking their invalidity or denunciation,

that some of the boldest innovations are proposed with regard to matters where

there is little state practice or where the rules proposed have not hitherto been

clearly established. The necessity for establishing procedural safeguards was

thus foreseen.’’

———. Unilateral denunciation of treaties: the Vienna Convention and the Inter-

national Court of Justice. American journal of international law, v. 68, 1974:

51–68.

‘‘It is noteworthy that the articles of the Vienna Convention on which the

Court has made explicit observations have all concerned claims to terminate

treaties unilaterally on grounds such as breach, coercion, or changed conditions,

and it is to these aspects of the cases to be examined that our attention will

be largely confined ***.

‘‘One may conclude that, with the exception of its Namibia aberration, the

Court’s consideration of the Vienna Convention on the Law of Treaties has been

helpful in furthering the consolidation of the law against unilateral denuncia-

tion of international agreements without accountability therefor.’’

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Chinkin, Christine M. Crisis and the performance of international agreements: the

outbreak of war in perspective. Yale journal of world public order, v. 7, spring

1981: 177–208.

The author views the impact of international crisis on international agree-

ments, focusing ‘‘on the criteria parties should use to make and evaluate claims

relating to international agreements in times of crisis and the criteria the world

community should use to evaluate those claims.’’

———. Nonperformance of international agreements. Texas international law jour-

nal, v. 17, summer 1982: 387–432.

The article concentrates ‘‘on the problem of breach, or nonperformance, of an

international agreement and *** consider[s] when the behavior relating to the

performance of an agreement deviates so far from the expectations of both the

parties and the world community that the agreement is in a state of breach or

nonperformance.’’

David, Arie E. The strategy of treaty termination: lawful breaches and retaliations.

New Haven, Yale University Press, 1975. 324 p.

‘‘The problem of treaty termination in a decentralized arena necessarily in-

volves examination of a large number of interrelated subjects. It concerns the

empirical and conceptual analysis of both legitimacy and bargaining power, and

the simultaneous feedback of international rules, claims, proposals, warnings,

threats, and promises, including their gradual fulfillment. The following discus-

sions, therefore, revolve around fundamental notions such as the conclusion of

new agreements in a context of mutual mistrust, treaty breaches, deterrence,

reprisal and retaliations, and reciprocal efforts to avoid—or at least to re-

strain—the damage from such activities to the economies of the parties and in-

terested third parties. Appraisal and recommendation for conflict behavior

under such conditions, of course, must also include inquiry of the longer range

goals and policies of the emerging global community ***. In terms of the cases

chosen, and the range of problems and factors discussed, the study is intended

to be merely selective ***. The first part deals with the history of coping with

problems of treaty termination ***. The purpose of part 2 is an increased un-

derstanding of the peculiar nature of the termination conflict and how it may

be resolved by negotiation and new agreement ***. [In part 3] the discussion

centers on the idea that in international relations governments communicate by

deeds, not only by words, and that therefore the timing of procedural submis-

sion and of substantive argumentation, as well as their content and style, are

of the utmost policy and tactical importance.’’

Koeck, Heribert Franz. The ‘‘changed circumstances’’ clause after the United Na-

tions Conference on the Law of Treaties. Georgia journal of international &

comparative law, v. 4, 1974: 93–115.

Koeck was a member of the Austrian Delegation to the second session of the

U.N. Conference on the Law of Treaties in 1969.

In introductory remarks he writes: ‘‘The obligation of a state to perform under

a treaty, after a substantial change of circumstance has occurred, is a question

which has provided material for generations of legal scholars ***.

‘‘The present brief study aims at examining the question of how far the

‘Changed Circumstances’ clause of the Vienna Convention of the Law of Trea-

ties is in line with traditional approaches to the problem.’’

In concluding, Koeck writes: ‘‘If the article [62] as it stands leave[s] still some

doubts about the workability of the principle of ‘changed circumstances’ in con-

temporary international law, this is due, not so much to any theoretical defect

for which the drafters could be held responsible, but only to the inability or un-

willingness of the conference to provide the procedural safeguards that alone

would have made the article a useful instrument in the field of treaty law ***.

The principle of ‘changed circumstances’ must today, therefore, be regarded as

a device for political pressure rather than as a legal means of peaceful change.’’

Lissitzyn, Oliver James. Treaties and changed circumstances (rebus sis stantibus).

American journal of international law, v. 61, 1967: 895–992.

‘‘In some degree, the I.L.C. [International Law Commission] Draft [Articles on

the Law of Treaties] reflects both approaches to the problem of the role of

changes of circumstances in treaty relationships—the expectations-of-parties ap-

proach and the intolerable-burden approach. The relevant articles of the Draft,

however, fail to clarify or fully mesh the policies underlying the two approaches.

The resulting formulations are open to differing interpretations and applica-

tions.’’

Another version of this article, Stability and Change: Unilateral Denunciation

or Suspension of Treaties by Reason of Changed Circumstances, appears in

‘‘Some Contemporary Problems of Treaty Law Suggested by the Draft Articles

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on the Law of Treaties of the International Law Commission,’’ in Proceedings

of the American Society of International Law, v. 61, 1967, on pp. 186–193, with

panel discussion of the paper on pp. 204–209.

Nahlik, S.E. The grounds of invalidity and termination of treaties. American journal

of international law, v.65, Oct. 1971: 736–756.

‘‘Among the important topics which before, at and after the Vienna Conven-

tion gave rise to much discussion and numerous controversies in the ‘Invalidity,

Termination and Suspension of the Operation of Treaties’ under Part V of the

convention ***. Although only one among seven parts of the draft convention

submitted to the General Assembly by the International Law Commission, the

number of articles it contained was exactly 40 percent of the total amount of

all articles, thirty out of seventy-five. This fact alone caused some anxiety: so

many articles to restrict the binding force of treaties by making it possible ei-

ther to impeach their validity, or to terminate them, or, at the very least, to

suspend their operation? Besides, are there not in those articles provision pro-

claimed as pertaining to the ‘progressive development of international law,’

which bring into international law some essential new elements? *** In order

to provide a general answer to these questions, it seems necessary to con-

centrate upon two issues; 1) Are there truly so many, even too many, grounds

of invalidity, termination, or suspension of the operations of treaties? 2) Is there

much, among those grounds, that should be regarded as essentially new?’’

Reismann, W. M. Procedures for controlling unilateral treaty termination. American

journal of international law, v. 63, 1969: 544–547.

‘‘The absence of institutionalized procedures for resolving disputes about con-

tinuing treaty regimes has produced a number of practical problems for inter-

national lawyers ***.

‘‘The International Law Commission’s draft Convention on the Law of Trea-

ties, which was reviewed by the Vienna Conference, has encountered the prob-

lem of dispute-resolution in exacerbated form. Due to the strong diplomatic

pressure from certain quarters, the prescriptions for invalidating, terminating

and suspending the operation of treaties, have been spelled out in greater detail

than usual. As a consequence, the need for establishing procedures for dispute-

resolution has become ever more urgent. Articles 62 and 63 of the draft intro-

duce only the most minimal procedures; notification and, in case of disagree-

ment, reference to the modalities spelled out in Article 22 of the Charter. An

alternative approach, Article 62 bis, establishes a series of compulsory sequen-

tial procedures, most of them institutionalized, which alone will authorize in-

validation, termination or suspension of operation.

‘‘Past state practice suggests that compulsory procedures will either be re-

jected by the Conference or, if accepted, be subjected to unilateral reservations

at the later stage of ratification. As a result, treaty-making states will be re-

quired to devise their own procedure for dealing with the increased problem of

invalidity, termination and suspension in a rapidly changing international con-

text.’’

Rosenne, Shabtai. Breach of treaty. Cambridge [Cambridgeshire] Grotius, 1985,

 1984. 142 p.

Schwelb, Egon. Termination or suspension of the operation of a treaty as a con-

sequence of its break. Indian journal of international law, v. 7, 1967: 309–334.

‘‘The present paper is devoted to the analysis of that provision of the [Inter-

national Law Commission’s] draft articles (draft article 57) which deals with the

consequences of a breach of a treaty.’’

Egon Schwelb provides a legislative history of Article 57 and compares it with

the American Law Institute’s provisions in its Restatement of the Foreign Rela-

tions Law of the United States, 1962, as revised in 1964 and 1965. Schwelb dis-

cusses the concept of a ‘‘material breach,’’ problems arising from interdependent

and multilateral treaties, the separability of treaties and the rights of parties

affected by the breach to invoke the breach as a ground for terminating the

treaty or suspending its operation.

Some contemporary problems in treaty law suggested by the Draft Articles of the

Law of Treaties of the International Law Commission. American Society of

International Law. Proceedings *** 61st annual meeting held at Washington,

D.C., v. 61, 1967: 186–209.

Oliver Lissitzyn examines whether a state has ‘‘the right to terminate or sus-

pend its obligations under a treaty on the ground that there has been a change

in conditions or circumstances since the treaty was concluded if the treaty itself

does not expressly provide for such a right.’’ He surveys and analyzes the rel-

evant International Law Commission’s draft articles. [Another version of

Lissitzyn’s paper, Treaties and Changed Circumstances (Rebus sis Stantibus)

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310

appears in the American journal of international law, v. 61, 1967, on pp. 895–

992. It is cited above.]

Richard Bilder explores how foreign office (such as State Department) officials

view treaties and issues concerning breach of treaties. He then considers the

implications of their approaches for international law.

Following the papers are summaries of comments and discussion by Myres

McDougal, Egon Schwelb, Anthony D’Amato, Denys Myers, Wasswa Balimunsi,

Leon Lipson, Vishwanath More, Hans Aufricht, Quincy Wright, and John Fried.

Tobin, Harold James. The termination of multipartite treaties. New York, AMS

Press, 1967. 321 p. (Studies in history, economics, and public law, no. 388) Re-

print of the 1933 ed., which was issued also as a thesis, Columbia University.

The author examines the effect of war on multipartite treaties. He also con-

siders termination of treaties by unilateral denunciation and termination by

agreement of the parties, through the conclusion of a new and superseding trea-

ty. Tobin discusses related questions as well, including the separability of treaty

provisions. ‘‘This study is based primarily on treaty texts, protocols of con-

ferences, diplomatic correspondence and court decisions concerning treaties.

This material has been supplemented by legal and historical interpretations of

the events bearing directly on these treaties.’’ A bibliography of works contribut-

ing to the study is included.

Wright, Quincy. The termination and suspension of treaties. American journal of

international law, v. 61, 1967: 1000–1005.

Quincy Wright examines provisions of the Draft Convention of Treaty Law by

the United Nations International Law Commission which addresses treaty ter-

mination resulting from violation of the agreement by one party. He also consid-

ers how the Draft Convention would apply to the Vietnam Ceasefire Agreement.

‘‘The issue whether another party to a treaty has violated a provision, wheth-

er the violation constitutes a ‘material breach,’ and whether the breached provi-

sion is separable, are generally controversial, and the freedom of one party to

decide unilaterally on these questions is likely to lead to abuses. On the other

hand, it would seem unjust if one party were obliged to continue observance of

a treaty, when convinced that the other party is grossly violating it, for at least

three months, and perhaps longer, while negotiations proceed by the means sug-

gested in Article 33 of this Charter ***. Unilateral suspension of the operation

of a treaty, in whole or in part, might be made permissible on notice charging

violation, but with the requirement that the treaty obligation cannot be termi-

nated or withdrawn from until agreement has been reached or the International

Court of Justice has supported the claim to terminate or to suspend for a longer

period.’’ Wright recommends that this solution be considered by the Vienna

Convention.

b. Questions of treaty validity

Malawer, Stuart S. Imposed treaties and international law. California Western

international law journal, v. 7, winter 1977: 1–178.

‘‘This article discusses and analyzes the rule of international law which de-

clares invalid any treaty which is imposed by the threat or use of aggressive

military force against a contracting state. The twentieth century development

of the rule is examined by surveying the doctrine, state practice, international

legislation and jurisprudence of the inter-war and post-World War II periods.’’

Meron, Theodor. Applicability of multilateral conventions to occupied territories.

American journal of international law, v. 72, July 1978: 542–557.

‘‘The object of this article is to consider whether an occupying power has the

right or the duty under international law to apply multilateral treaties to which

it is a party in the territories which it occupies. Focusing on the case of the ter-

ritory west of the Jordan River, which is commonly known as the West Bank

*** this study will deal the relevant ILO conventions, the Chicago Convention,

the law of belligerent occupation, and the interaction between these bodies of

law.’’

Paul, Vladimir. The legal consequences of conflict between a treaty and an impera-

tive norm of general international law (jus cogens). Osterreichische Zeitschrift

fur offentliches Recht, v. 21, Apr. 1971: 19–49.

The author, who is from Prague, examines the history of the concept of jus

cogens, in light of court opinions and State and international practices. He re-

views writings on jus cogens and analyzes the International Law Commission’s

(ILC) conception of jus cogens in Article 61 of the Draft Articles on the Law of

Treaties, Paul considers the relations of jus cogens to international morality and

public policy, and he discusses the separability of treaty provisions. He also re-

views ILC draft procedures for dealing with international disputes regarding

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the invalidity of international treaties which conflict with a peremptory norm

of international law.

Rozakis, Christos L. The concept of jus cogens in the law of treaties. Amsterdam;

New York, North-Holland Pub. Co., 1976. 206 p.

‘‘The present study is aimed at exposing in a systematic way the hiatus exist-

ing between the substantive provisions of the Convention which lay down the

function of the jus cogens concept and the provisions implementing that func-

tion. In effect, the substantive provisions, as such, introduce in the international

legal system the concept of jus cogens duly empowered with the sanction of in-

validity to be applied to all treaties which conflict with the content of norms

having that imperative character; but the articles which are assigned to deal

with the materialization of that sanction and which constitute the only legal

tool through which the parties to the Convention may contest the legality of a

treaty, are quite often unable to fulfill the intended function of the substantive

articles.’’

Contents.—The function of the jus cogens norms.—The identification of the

jus cogens norms.—The modification of the jus cogens norms.—The sanctioning

power of the jus cogens norms.—The settlement of disputes.

Schwelb, Egon. Some aspects of international jus cogens as formulated by the Inter-

national Law Commission. American journal of international law, v. 61, Oct.

1967: 946–975.

‘‘The [International Law] Commission’s proposals relating to international jus

cogens [in the Commission’s draft articles on the law of treaties] have engen-

dered a considerable amount of debate among governments and among pub-

licists. In the present article, an attempt will be made to deal from a practical

point of view with some of the many problems which the *** draft articles

raise. The article will not reproduce and analyze the views of writers, but lay

emphasis on such state practices as there exist and upon currently advancing

views of governments. References to the views of publicists will be made only

where this is necessary to illustrate the scope and the potentialities, but also

the vagueness, the elasticity, and the dangers of the concept of international jus

cogens as formulated in the draft.’’

Scott, Gary L. Carr, Craig L. The International Court of Justice and the treaty/cus-

tom dichotomy. Texas international law journal, v. 16, summer 1981: 347–359.

‘‘This Article addresses the treaty/custom problem in three distinct ways.

First, it briefly reviews some of the recent literature on the subject, with revela-

tory rather than exegetic intent. Second, it traces the impact of the treaty/cus-

tom debate on the opinions of the International Court of Justice; it is there that

the crosscurrents of international law experience their ebb and flow. Third, it

exposes some preconceptions about law which have led students of international

law to place such importance on the treaty/custom issue, and it offers a prole-

gomenon to an alternate theoretical framework for analyzing the functions of

the International Court of Justice which avoids appeal to the treaty/custom di-

chotomy.’’

Sztucki, Jerzy. Jus cogens and the Vienna Convention on the Law of Treaties: a crit-

ical appraisal. Wien, New York, Springer-Verlag, 1974. 204 p. (Osterreichische

Zeitschrift fur offentliches Recht. Supplementum 3)

‘‘The primary purpose of this study is to analyze critically the conventional

concept of jus cogens as it developed and as it stands—without avoiding theo-

retical considerations but also without attempting to present any new theory of

the legality of treaties in the present day international law ***. In the last part

an attempt is made at presenting in summarized form the question of legality

of treaties as it appears to stand now.’’

The author includes a bibliography listing recent works on the law of treaties,

writings devoted to the Vienna Convention on the Law of Treaties, and works

addressing the question of jus cogens in international law.

Zotiades, George B. Intervention by treaty right: its legality in present day inter-

national law. [Nicosia, Cyprus, Geka Press] 1965. 41 p. (Jus gentium, series of

publications on international law; v. 6)

‘‘What this paper deals with is the legality of unilateral—not collective—inter-

vention expressis verbis stipulated in bilateral treaties. The validity of this

group of treaties is questioned.’’

Partial contents.—Statements of the problem.—The definition of interven-

tion.—Treaties of guarantee stipulating a right of intervention.—The principle

of non-intervention in international law.—Critical analysis of the arguments ad-

vanced in support of the legality of intervention by treaty right.—Intervention

by treaty right as a violation of present day international law.

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DISPUTE SETTLEMENT

Adede, A.O. A survey of treaty provisions on the rule of exhaustion of local rem-

edies. Harvard international law journal, v. 18, winter 1977: 1–19.

‘‘The treaty-law analysis undertaken here will address two basic questions.

The first question asks which ‘local remedies’ are to be exhausted as a pre-con-

dition to the initiation of international proceedings. The primary issue here is

whether ‘local remedies’ to be exhausted include nonjudicial forms of redress.

The second question involves the scope of the rule. The main problem is wheth-

er the local remedies rule must be applied in every case or whether certain con-

ditions exist under which it need not be applied. The answer to the second ques-

tion will enable us to decide whether the rule of exhaustion of local remedies

is a rule of substances or rule of procedure. The answers to both questions will

provide the basis for conclusions relating to the proper function and rationale

of the rule.’’

Coll, Richard J. United States enforcement of arbitral awards against sovereign

states: implications of the ICSID convention. Harvard international law journal,

v. 17, spring 1976: 401–415.

‘‘This Comment examines the relevant provisions of the ICSID [International

Centre for Settlement of Disputes] Convention to determine its impact upon the

traditional bars to enforcement of arbitral awards against states by private par-

ties. To facilitate analysis, the specific question addressed is whether an Amer-

ican investor who has prevailed in ICSID arbitration can secure enforcement of

the award in the United States should the foreign state against which the

award was rendered refuse to comply with it.’’

Cosca, Cecilia E. Zimmerer, Joseph J. Judicial interpretations of foreign arbitral

awards under the U.N. convention. Law and policy in international business,

v. 8, no. 3, 1976: 737–762.

Comment reviews U.S. case law, indicating ‘‘a receptiveness to enforcement

of international arbitration agreements and awards based on both the Conven-

tion and an independent base of public policy.’’

Foreign judgments based on foreign arbitral awards: the applicability of res judi-

cata. University of Pennsylvania law review, v. 124, Nov. 1975: 223–249.

In the context of the Convention on the Recognition and Enforcement of For-

eign Arbitral Awards, comment considers whether the doctrine of merger, an

element of res judicata, is applicable to arbitral awards and foreign judgments

based thereon.

Kennedy, Lionel. Enforcing international commercial arbitration agreements and

awards not subject to the New York Convention. Virginia journal of inter-

national law, v. 23, fall 1982: 75–101.

Comment discusses ways of enforcing an international arbitration agreement

or award that is not covered by the United Nations Convention on the Recogni-

tion and Enforcement of Foreign Arbitral Awards (known as the New Conven-

tion).

McClendon, J. Stewart. Enforcement of foreign arbitral awards in the United States.

Northwestern journal of international law and business, v. 4, spring 1982: 58–

74.

Examines both the New York Convention and the United States Arbitration

Act. Describes the requirements and procedures for enforcing foreign arbitral

awards in the United States. Considers the substantive and procedural defenses

to enforcement of foreign arbitral awards, and reviews the relevant U.S. case

law.

Mirabito, A. Jason. The United Nations Convention on the Recognition and Enforce-

ment of Foreign Arbitral Awards: the first four years. Georgia journal of inter-

national & comparative law, v. 5, summer 1975: 471–501.

‘‘The purpose of this paper is to examine the various legal regimes in force

that facilitate this enforcement [of foreign arbitral awards] and especially to

consider the United Nations Convention on the Recognition and Enforcement of

Foreign Arbitral Awards, recently adopted by the United States, and its effects

upon the enforcement of foreign arbitral awards.’’ Mirabito concludes: ‘‘Although

the Convention is not a panacea for all the problems which enforcement of for-

eign award entails, and although it does not go as far as some desire in creating

an international arbitration tribunal, it is at least a practical, realistic system

that can operate in today’s world.’’

Mosler, Hermann. Supra-national judicial decisions and national courts. Hastings

international and comparative law review, v. 4, spring 1981: 425–472.

‘‘Justice Mosler of the International Court of Justice discusses at length the

various supra-national courts of universal, regional, and specialized jurisdiction.

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The Article continues with an analysis of the relationship between national and

supra-national courts, forms of supra-national judgments, and the effect of these

judgments on the national judiciary of the states party to the action and on non-

party states. Finally, the relevance of multilateral treaty systems to the enforce-

ment of international judgments is examined.’’

Sohn, Louis B. The role of arbitration in recent international multilateral treaties.

Virginia journal of international law, v. 23, winter 1983: 171–189.

This article ‘‘considers the various dispute resolution procedures traditionally

found in multilateral treaties. It then *** turns to a more specific discussion

of the use of arbitration as a settlement technique, including an overview of the

current status of efforts aimed at the codification of international arbitral rules.

Finally, this Article *** focus[es] on the dispute resolution provisions of the

1982 Law of the Sea Convention in an attempt to evaluate the role played by

arbitration in recent multilateral agreements.

Symposium-enforcement of foreign judgments and arbitral awards. Virginia journal

of international law, v. 17, spring 1977: 359–493.

Contents.—Enforceability of settlements of foreign investment disputes, by P.

Gilbert.—The challenge to the enforcement of socialist arbitral awards, by F.

Orban, III.—Enforcement of foreign judgements and arbitral awards in West

Germany, by H. Bertram-Nothnagel.—Enforcement of foreign judgments in the

United States, by R. von Mehren.—The Common Market Convention on Juris-

diction and the Enforcement of Judgments: an interim update, by P. Herzog.—

The proposed United States-United Kingdom convention on recognition and en-

forcement of judgments: a prototype for the future? By H. Smit.—Foreign arbi-

tral awards and the 1958 New York convention: experience to date in the U.S.

courts, by P. Trooboff and C. Goldstein.

SUCCESSION OF STATES

Lavalle, Roberto. Dispute settlement under the Vienna Convention of Succession of

States in Respect of Treaties. American journal of international law, v. 73, July

1979: 407–425.

Provides a critical review of the provisions of part VI of the Convention

which, according to the author ‘‘suffers from certain technical shortcomings and

raises problems of interpretation.’’

Maloney, Matthew G. Succession of States in respect of treaties: the Vienna Conven-

tion of 1978. Virginia journal of international law, v. 19, summer 1979: 885–

914.

Explores ‘‘historical and practical background of the law of State succession,

describe[s] and analyze[s] the new Vienna Convention and consider[s] the appli-

cability of the Convention to future problems of State succession.’’

Rhinelander, John B. Bunn, George. Who’s bound by the former Soviet Union’s arms

control treaties? Arms control today, v. 21, Dec. 1991: 3–7.

‘‘As the Soviet government transforms or collapses, which of the resulting en-

tities will be bound by the treaties the Soviet Union entered into?’’

Rogge, O. John. State succession. New York law forum, v. 16, no. 2, 1970: 378–391.

Examines the problem of the effect on U.S. extradition relations when a state

or territory covered by a such a treaty changes its form of government or be-

comes part of a nation other than that with which we have the formerly appli-

cable treaty.

Stewart, James B. The International Law Commission, 26th session. Draft Articles

on the Succession of States in respect of Treaties: the pragmatic development

of international law. Harvard international law journal, v. 16, summer 1975:

638–647.

‘‘The Articles on the Succession of States in respect of Treaties are designed

to resolve disputes over treaty obligations concluded by a predecessor State

when a new State makes its appearance. They do not cover situations arising

from a change of governments within a State.’’

Succession of states in respect of bilateral treaties. [New York] United Nations,

1971. 103 p. (United Nations. [Document] A/CN.4/243/Add.1)

At head of title: United Nations General Assembly.

Succession of states in respect of bilateral treaties; studies prepared by the Secretar-

iat. [New York] United Nations, 1970. 63 p. (United Nations. [Document] A/

CN.4/229)

At head of title: United Nations General Assembly.

Describes extradition treaties.

Succession of states in respect of treaties; report. [New York] United Nations, 1975.

26 p. (United Nations. [Document] A/10198)

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At head of title: United Nations General Assembly.

Includes comments and observations of member states on the draft articles

on succession of states in respect of treaties.

Third report on succession in respect of treaties. Prepared by Sir Humphrey

Waldock. [New York] United Nations, 1970. 70 p.

At head of title: United Nations General Assembly.

Udokang, Okon. Succession of new states to international treaties. Dobbs Ferry,

N.Y., Oceana Publications, 1972. 525 p.

‘‘The international law of State succession must not be studied in isolation,

but rather in the wider context of international politics.’’

Partial contents.—The concept and theory of State succession.—Succession to

treaties in new States.—Succession to multilaterial treaties.—Succession to

membership in international institutions.—Succession to ‘‘localized’’ or ‘‘disposi-

tive’’ treaties.—Succession to bilateral treaties and economic concession.

The author includes an extensive bibliography of books, U.N. publications, ar-

ticles, and other sources.

Vienna Convention on Succession of States in Respect to Treaties; official docu-

ments. American journal of international law, v. 72, Oct. 1978: 971–988.

C. I

NTERNATIONAL

GREEMENTS AND

U.S. L

GENERAL

American Law Institute. Restatement of the law, the foreign relations law of the

United States. Rev. and enl. St. Paul, Minn., American Law Institute Publish-

ers, 1987. 2 v. Restatement of the law, third, the foreign relations law of the

United States. ‘‘As adopted and promulgated by the American Law Institute at

Washington, D.C., May 14, 1986.’’

‘‘This volume is the American Law Institute’s Official Draft of Restatement

Third, Restatement of the Foreign Relations Law of the United States.’’

Bradley, Curtis A. The treaty power and American federalism. Michigan law review,

v. 97, Nov. 1998: 390–461.

Article ‘‘describes why the relationship between the treaty power and Amer-

ican federalism is particularly significant today, in light of recent changes in the

nature of treaty-making, as well as the recent federalism jurisprudence of the

Supreme Court.’’

The Constitution of the United States of America: analysis and interpretation; anno-

tations of cases decided by the Supreme Court of the United States to June 29,

1992. Prepared by the Congressional Research Service. Washington, U.S. Gov-

ernment Printing Office, 1992. (Document, Senate, 103d Congress, 1st Sess., no.

103–6)

This edition includes annotations of U.S. Supreme Court decisions interpret-

ing the provisions of the Constitution through June 29, 1992. An index with

subheadings under terms such as treaties, war, executive agreements, powers,

and Congress provides access to specific topics. With 1996, 1998, and 2000 sup-

plements. Available on the Web: http://www.access.gpo.gov/congress/senate/

constitution/

Cowles, Willard Bunce. Treaties and constitutional law: property interferences and

due process of law. Westport, Conn., Greenwood Press, 1975. 315 p. Reprint of

the 1941 ed. published by American Council on Public Affairs, Washington.

‘‘Our first inquiry will be to ascertain whether or not it was the original in-

tention that the due process and just compensation clauses were to be para-

mount law in respect of the domestic, legal operation of treaties. Part One of

the study will deal with this. Thereafter (in Part Two) we shall develop the

legal and congressional thought and decisions where the courts or Congress

have had before them the question of the supremacy of those clauses in relation

to treaty stipulations. If, in some cases, the courts have held a treaty provision

to be binding upon them, we shall inquire whether they have regarded the

United States as, or have held it to be, duty bound under the Fifth Amendment

to assure the property owner of just compensation. Subsequent action of Con-

gress in such cases will be set forth.’’

Crandall, Samuel Benjamin. Treaties: their making and enforcement. 2d ed. Wash-

ington, J. Byrne and Co., 1916. 663 p.

Partial contents.—Prior to the Articles of Confederation.—Under the Articles

of Confederation.—The Federal Convention.—Discussion preceding the adoption

of the Constitution.—The advice and consent of the Senate.—Powers of the

President.—Agreements reached by the executive without the advice and con-

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sent of the Senate.—Agreements by the executive in virtue of acts of Con-

gress.—Treaties involving an appropriation.

A table of cases precedes chapter 1, and a digest of decisions of American

courts construing treaties, arranged by countries and treaties, forms the first

appendix.

The 1904 edition of this work was reprinted in 1968 by AMS Press, N.Y., as

part of the Columbia University Studies in Social Sciences series; no. 54.

Dalton, Robert E. International agreements in the revised restatement. Virginia

journal of international law, v. 25, fall 1984: 152–168.

‘‘On April 1, 1980, the American Law Institute published Tentative Draft No.

1 of the Restatement of Foreign Relations Law of the United States (Revised)

(‘Revised Restatement’). This Article addresses the provisions of the draft that

deal with international agreements. The reporters have made a significant con-

tribution, although several areas, especially concerning the interplay of execu-

tive, congressional, and customary authority, still raise important questions.’’

Dearborn, Charles H., III. The domestic legal effect of declarations that treaty provi-

sions are not self-executing. Texas law review, v. 57, Jan. 1979: 233–251.

‘‘On February 23, 1978, President Carter transmitted four human rights trea-

ties to the Senate for its advice and consent. The President also recommended

a number of ‘reservations,’ ‘understandings,’ and ‘declarations,’ ostensibly de-

signed to conform the treaties to United States law and thereby avoid ‘constitu-

tional or other legal obstacles to *** ratification.’ The State Department and

the President also recommended that a declaration that certain provisions are

not self-executing accompany each treaty ***. This Note argues that the dec-

larations are of dubious validity, probably have no binding effect on United

States courts, and should not be used as aids in construing the treaties.’’

The Federalist. Edited with introduction and notes by Jacob E. Cooke. Middletown,

Conn., Wesleyan University Press [1961] 672 p.

Professor Arthur Bestor contends that ‘‘by general agreement the most signifi-

cant of the contemporaneous explanations of how the Constitution was intended

to work was the series of papers entitled The Federalist.’’ These essays were

written by James Madison, Alexander Hamilton, and John Jay in 1788, in re-

sponse to objections made by New Yorkers to the Constitution which had been

proposed on September 17, 1787, at the Philadelphia Convention. The essays

defend the Constitution and explain its provisions. An index, with entries in-

cluding Congress of the United States, executive, foreign affairs, President, Sen-

ate, treaty power, and war, provides subject access to the essays.

Foundation for Study of Treaty Law. Treaty law manual. Washington, Foundation

for Study of Treaty Law [1954?] 61 p.

‘‘A determination of whether the American people should amend their con-

stitution to limit the treaty power of the Federal Government is a question of

balancing risks. Opponents of the proposal say that it might, in some now

unforseen future circumstances, prevent a President of the United States from

entering into a treaty or executive agreement vital to the public interest. They

urge that the President must necessarily have broad powers to fully serve the

people.

‘‘The proponents of the amendment, on the other hand, say that granting

broad powers to the executive over the internal domestic affairs of the people

may ultimately result in the loss of our liberty. They recall that our forefathers

refused to adopt the present constitution until the Bill of Rights had been added

to protect individual liberties. The guarantees of individual liberty included in

that Bill of Rights may now, the proponents of the amendment urge, be taken

from the people by international treaty.’’

Haskell, Donald M. The Warsaw system and the U.S. Constitution revisited. Jour-

nal of air law and commerce, v. 39, autumn 1973: 483–517.

‘‘The Warsaw Convention and the Montreal Interim Agreement provide effec-

tive limits on recovery for wrongful death in international flights. In this article

Mr. Donald M. Haskell argues for the validity of these international agreements

under the United States Constitution. His analysis included an examination of

the supremacy clause and the treaty-making power of the federal government,

the separation of powers and political question doctrines of judicial abstention,

and the application of due process and equal protection principles to claims aris-

ing from international air tragedies.’’

Hendry, James McLeod. Treaties and Federal constitutions. Westport, Conn., Green-

wood Press, 1975,  1955. 186 p. Reprint of the ed. published by Public Affairs

Press, Washington.

‘‘This study has two objectives. The first is to make an exhaustive analysis

of constitutional limitations of four Federal states [Canada, Australia, the

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United States, and Switzerland], compare their effect, and determine their real

and supposed validity restricting the participation of these states in inter-

national affairs. The second is to ascertain what scope there is for international

law to assist the states in better international collaboration by the development,

change or institution of international legal rules for international agreements.’’

Contents.—The problem.—Historical and constitutional considerations on the

treaty processes of Federal states.—The treaty-making powers of Federal execu-

tives.—Governmental participation in the treaty-making powers of Federal ex-

ecutive.—Treaty performance and fundamental laws.—Treaty performance and

the legislative powers of the component states.—Constitutional limitations and

international law.—Constitutional limitations and fundamental laws.

Henkin, Louis. Foreign affairs and the United States Constitution. Oxford,

Clarendon Press; New York, Oxford University Press, 1996. 582 p.

The author ‘‘attempts to illuminate the constitutional provisions that deal

with foreign relations and the special significance for foreign relations of other

constitutional clauses ***. This volume is an essay in law, not in legal history,

and it concentrates on where we are going, rather than on where we were or

even how we got here.’’ Henkin examines ‘‘insufficiencies in the constitutional

blueprint,’’ the distribution of Federal political power in foreign affairs, and the

constitutional law governing international agreements and cooperation. He re-

views use of the treaty power to promote international human rights.’’

———. The treaty makers and the law makers: the Niagara Reservation. Columbia

law review, v. 56, Dec. 1956: 1151–1182.

Henkin reviews the background and provisions of the 1950 Treaty with Can-

ada Concerning Uses of the Waters of the Niagara River. He examines the Sen-

ate reservation in its resolution of August 9, 1950, that ‘‘The United States on

its part expressly reserves the right to provide by Act of Congress for redevelop-

ment, for the public use and benefit, of the United States share of the Niagara

River made available by the provisions of the Treaty, and no project for redevel-

opment of the United States share of such waters shall be undertaken until it

is specifically authorized by Act of Congress.’’ Henkin explores the reasons moti-

vating that reservation, as revealed in the Senate Foreign Relations Committee

Report (S. Exec. Rept. 11, 86th Cong., 2d Sess., 1950). He also considers devel-

opments subsequent to the treaty, from 1950 to 1956.

Henkin critiques assumptions underlying the New York Power Authority’s

claim that the reservation does not fall within the treaty power of the Constitu-

tion. He considers the contractual natures of the reservation and examines leg-

islative aspects of the treaty in relation to the legislative power of Congress.

Henkin contends that Article VI of the Constitution ‘‘establishes that the

power includes an important power to legislate domestically within a limited

area’’ including ‘‘The power to enact provisions in or relating to a treaty like

the provision in the Niagara reservation.’’ He reviews reservations to earlier

treaties which might serve as precedents and examines other grounds for ques-

tioning the claim that the reservation is invalid. He argues: ‘‘Even if the provi-

sion contains no element of international obligation, it is a provision like one

in other United States treaties which relates to the subject and purposes of the

treaty and to its implementation. The provision is another instance of the exer-

cise of an accepted power of the President and Senate to invite Congressional

cooperation in the treaty function ***. This was a recognition, yet another time

in our history, that the legislative power of Congress intersects and supple-

ments the treaty powers and that a specific instance may call for cooperation

between these powers rather than isolated operation of each.’’

Institute on the Law of Treaties and the State-Federal Relationship, University of

Missouri, 1969. Proceedings. Edited by Frederick W. Hess. [Kansas City] Uni-

versity of Missouri-Kansas City [1970] 74 p. Sponsored by the Law Center of

the University of Missouri, Kansas City, and the American Society of Inter-

national Law. Held June 6, 1969.

‘‘That the subject matter of international agreements has grown over the last

150 years into areas previously not amenable to treaty regulation is obvious to

anyone studying cultural, commercial, administrative and scientific topics which

have been thus regulated in recent decades. The question may arise: What fac-

tors bring about this development, what are its limitations, and to what extent

has international regulation made inroads into areas once reserved to domestic

jurisdiction?

The second aspect of the treaty problem affects the United States. Here, faced

with our constitutional framework, we may ask ourselves to what extent our no-

tions of the Federal treaty power have remained in harmony with those of other

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countries, and whether international agreements may today settle matters once

thought to be exclusively in the constitutional province of the states ***.

‘‘In examining the issue, prominent consideration was given to the United Na-

tions Convention on the Law of Treaties.’’

Jefferson, Thomas. ‘‘Sec. LII—Treaties,’’ of Jefferson’s manual of parliamentary

practice. In U.S. Congress. House. Constitution, Jefferson’s manual and rules of

the House of Representatives of the United States, One Hundred Sixth Con-

gress. Compiled by Charles W. Johnson, Parliamentarian. Washington, U.S.

Government Printing Office, 1999. pp. 300–303. (105th Cong., 2d Sess. House.

Document no. 105–358)

Kearney, Richard D. Internal limitations on external commitments.—Article 46 of

the Treaties Convention. International lawyer, v. 4, Oct. 1969: 1–21.

Richard Kearney discusses Article 46 of the Vienna Convention on the Law

of Treaties. The article deals with ‘‘the conflict between constitutional limita-

tions upon the authority to commit the state internationally and the necessity

of international reliance upon apparent authority to commit the State inter-

nationally.’’

Kuchenbecker, David J. Agency-level executive agreements: a new era in U.S. treaty

practice. Columbia journal of transnational law, v. 18, no. 1, 1979: 1–77.

‘‘This Article examines in detail the employment of agency-level executive

agreements as an instrument of U.S. treaty practice. It focuses not only on the

legal instrument itself but upon what its use reflects about the changes within

the government as virtually every nondiplomatic agency enters into inter-

national agreements on behalf of the United States ***. Examines the legal au-

thority for, and consequences of, the agency-level device, noting the similarities

and contrasts with executive agreements generally and the recent developments

in U.S. treaty practice that have affected its negotiation ***. Provides a brief

description of the State Department’s current relationship with other executive

branch agencies regarding the negotiation process ***. Assesses the current

state of the agencies’ agreement practice, identifying the strengths and weak-

nesses thereof, examples of intra-agency disputes involving the State Depart-

ment, and congressional action, in the form of newly enacted legislation, to rem-

edy some of the weaknesses.’’

Law of Treaties. In Research in international law; under the auspices of the faculty

of Harvard Law School. Supplement (to the) American journal of international

law, v. 29, 1935. pp. 655–1240.

‘‘Drafts of conventions prepared for the codification of international law.’’

‘‘Part III [law of treaties] with Index bound in this volume.’’ Pagination for vol-

ume begins with p. 655.

Meron, Theodor. Article 46 of the Vienna Convention on the Law of Treaties (ultra

vires treaties): some recent cases. British year book of international law, v. 49,

1978: 175–199.

‘‘Article 46 of the Vienna Convention was invoked in the Senate of the United

States with regard to the Sinai II Agreements of 1975 and with regard to the

Panama Canal Treaties of 1972. In both cases, it was in the legislative branch

rather than in the executive branch, that it was argued that constitutional pro-

visions regarding competence to conclude treaties were violated and that certain

agreements were ultra vires under such constitutional provisions.’’

Paust, Jordan J. Self-executing treaties. American journal of international law, v.

82, Oct. 1988: 760–783.

‘‘The distinction found in certain cases between ‘self-executing’ and ‘non-self-

executing’ treaties is a judicially invented notion ***. When did the judicially

created distinction first occur? How has it actually been used in the Supreme

Court’s history? Should the distinction be retained?’’

Tolley, Howard B. The domestic applicability of international treaties in the United

States. Lawyer of the Americas, v. 15, spring 1983: 71–88.

‘‘Following over a century of precedent, United States courts refused to en-

force the provisions of treaties which conflict with later Congressional acts.

Case law and commentary uniformly support the ‘last-in-line’ doctrine virtually

without exception. This paper examines the origin, evolution and application of

the last-in-line rule. After identifying points of agreement with prevailing au-

thority, the text affirms a principle of treaty priority which challenges five key

elements of the last-in-line rule.’’

U.S. Constitutional Convention, 1787. The debates in the Federal Convention of

1787, which framed the Constitution of the United States of America. Reported

by James Madison. International ed., Gaillard Hunt and James Brown Scott,

editors. Westport, Conn., Greenwood Press [1970] 731 p.

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The treaty ratification process is discussed on pp. 532–534. An extremely de-

tailed index, with House and Senate listed under Legislative and the President

listed under Executive, provides access to coverage of other issues.

U.S. ratification of the human rights treaties with or without reservations? Edited

for the International Human Rights Law Group by Richard B. Lillich. Char-

lottesville, University Press of Virginia, 1981. 203 p.

U.S. ratification of the international covenants on human rights. Edited by Hurst

Hannum and Dana D. Fischer. Irvington-on-Hudson, N.Y., Transnational Publi-

cations, 1993. 343 p.

At head of title: The American Society of International Law.

Weinfeld, Abraham C. What did the framers of the Federal Constitution mean by

‘‘agreements or compacts?’’ University of Chicago law review, v. 3, Apr., 1936:

453–469.

In this comment, Weinfeld examines the Articles of Confederation, the drafts

that preceded them, and the Federal Convention of 1787 to determine the dif-

ference between a ‘‘treaty’’ and an ‘‘agreement or compact,’’ since ‘‘a state, may

not enter into a treaty but it may enter into an agreement or compact with con-

sent of Congress.’’

Weinfeld contends that the words ‘‘agreements’’ or ‘‘compacts,’’ in contrast to

‘‘treaties,’’ were used as technical terms and carried a definite meaning. He ex-

amines the literature on international law known in this country in 1787 to de-

termine that meaning. Weinfeld concludes: ‘‘To summarize ‘agreements or com-

pacts’ as intended by the framers of the Constitution included 1) settlements

of boundary lines with attending cession or exchange of strips of land, 2) regula-

tion of matters connected with boundaries as for instance regulation of jurisdic-

tion of offenses committed on boundary waters of fisheries or of navigation.’’

Whiteman, Marjorie M. Treaties and other international agreements. In The Digest

of international law. Vol. 14. Washington, Department of State, U.S. Govern-

ment Printing Office, 1970. pp. 1–510.

The Assistant Legal Adviser of the Department of State reviews the making

and enforcement of treaties and international agreements. She quotes from and

cites published and unpublished documents issued by the International Law

Commission, U.S. Presidents, and the U.S. Department of State. She also cites

the Vienna Convention of the Law of Treaties, the U.S. Constitution, and con-

gressional documents and debates.

Contents.—Meaning of terms.—Capacity to make.—Negotiation and conclu-

sion.—Ratification.—Adherence or accession.—Acceptance or approval.—Proce-

dure after ratification.—Reservations.—Executive agreements.—Validity.—En-

forcement.—Interpretation.—Termination or suspension.

Wildhaber, Luzius. Treaty-making power and constitution: an international and

comparative study. Basel, Stuttgart, Helbing & Lichtenhahn, 1971. 412 p.

‘‘This book presents a comparative study of the treaty-making power in a se-

ries of countries. The first part describes and evaluates the distribution of pow-

ers between legislative, executive, courts and populace with respect to the

agreement-making process. The second part deals with the distribution of pow-

ers between the federal government and the member units in federal states.

The third part inquiries into the limitations upon the treaty-making power

which results from constitutional prohibitions, particularly into judicial review

of treaties and the feasibility of transferring state competencies to international

organizations ***.’’

‘‘I shall discuss the interplay between legislature and executive with respect

to international agreements in Great Britain, Canada, Australia, the United

States, France, Belgium, the Netherlands, the Federal Republic of Germany,

Australia, and Switzerland.’’

Wright, Quincy. The control of American foreign relations. New York, Macmillan,

1922. 412 p.

‘‘This essay seeks to draw particular attention to a difficulty in the control

of foreign relations found in every government, but especially in a government

with powers defined in a judicially enforced written constitution. This is the dif-

ficulty which arises from the fact that the organs conducting foreign relations.

have their responsibilities defined by international law, which their powers are

defined by constitutional law. Since the sources of these two bodies of law are

different, a lack of coordination between the powers and the responsibilities of

these organs is to be expected. To avoid confusion the writer has considered the

subject from the international point of view and from the [U.S.] constitutional

point of view in separate parts of the book.’’

———. Treaties and the constitutional separation of powers in the United States.

American journal of international law, v. 12, Jan. 1915: 64–95.

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Wright examines the treaty power in relation to legislative and juridical pow-

ers. He concludes: ‘‘It appears that the principle of separation of powers imposes

no limitation upon the treaty-making power. If the subject is appropriate for

treaty negotiation, consonant with the purposes of the Constitution, and in vio-

lation of none of its specific prohibitions, the treaty, if ratified, is valid, and all

other departments of government—the legislative, executive and judiciary—are

bound by their allegiance to the Constitution to perform the acts necessary to

give it effect. Considering the practical working of the government, this capacity

of the treaty power to impose obligations upon the other independent depart-

ments is not remarkable. Practically every valid act of one department does the

same ***.

‘‘Where the cooperation of another department is required it would always be

appropriate for the treaty power itself to consider the opinion of the depart-

ments concerned, especially if the prerogatives of Congress are involved, before

ratifying the treaty, but such action would seem to be dictated by courtesy or

expediency rather than legal necessity.’’

CONGRESSIONAL AND PRESIDENTIAL ROLES IN THE MAKING OF TREATIES AND

INTERNATIONAL AGREEMENTS

Berger, Raoul. The presidential monopoly of foreign relations. Michigan law review,

v. 71, Nov. 1972: 1–58.

Berger discusses ‘‘presidential executive agreements, and whether the Senate

may be excluded from knowledge of, and participation in, negotiations with for-

eign nations as a part of the treaty-making process.’’

Bestor, Arthur. Respective roles of Senate and President in the making and abroga-

tion of treaties—the original intent of the framers of the Constitution histori-

cally examined. Washington law review, v. 55, no. 1, 1979–1980: 4–135.

This study ‘‘seeks to determine the original intent of the framers of the Amer-

ican Constitution as evidenced by the documents dating from the period during

which the Constitution and its predecessor, the Articles of Confederation, were

drawn up and adopted—roughly the period from 1776 through 1789.’’

Biden, Joseph R., Jr. Ritch, John B., III. The Treaty power: upholding a constitu-

tional partnership. University of Pennsylvania law review, v. 137, May 1989:

1529–1557.

A member of the Senate Foreign Relations Committee and the Deputy Staff

Director of the same committee ‘‘recount significant events leading to the Sen-

ate’s repudiation or the Sofaer Doctrine and offers a rationale for the necessity

of the Senate’s action.’’

Borchard, Edwin. Shall the executive agreement replace the treaty? Yale law jour-

nal, v. 53, Sept. 1944: 664–683.

Examines the basis of proposals to substitute executive agreements for trea-

ties, reviews historical distinctions between treaties and agreements, and de-

scribes types of executive agreements. Contends that ‘‘in the few instances

where the President has used his power to make executive agreements in a field

important enough to warrant a treaty *** explanation can be found in the ap-

parent Senate acquiescence in the particular assumption of executive power.’’

Reviews objections to the use of executive agreements as a substitute for trea-

ties, contending that it is an evasion of the Constitution, and that executive

agreements are of limited utility because their durability is precarious. Consid-

ers the impact of Supreme Court opinions on executive agreements. Concludes

‘‘Proponents of a constitutional amendment do not take into account the new

troubles they would encounter if the President did not belong to the same party

as the majority of one or both of the two Houses. They also fail to realize that

it might be easier to get a two-thirds vote of approval in the Senate, if a given

treaty warrants support, than a majority in a hostile House or Senate, for the

nature of the proposed change is such that it might make the congressional

‘veto’ more political than it has been in the past.’’

Briggs, Herbert, W. The Leaders’ agreement at Yalta. American journal of inter-

national law. v. 40, Apr. 1946: 376–383.

In this commentary, Briggs contends: ‘‘There are sufficient precedents to jus-

tify the conclusion that the President has the Constitutional competence to con-

clude internationally binding military agreements without the advice and con-

sent of the Senate ***. At the same time, the price exacted by Marshal Stalin

made the agreement much more than a military agreement. Its provisions that

the claims of the Soviet Union should be unquestionably fulfilled after Japan

has been defeated refer to the transfer of Japanese territory and the shackling

of Chinese territory and contain commitments of such uncertain meaning and

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doubtful duration as to raise serious doubts as to the President’s constitutional

competence to commit the United States by executive agreement.

‘‘There is no reason *** why all executive agreements should be regarded as

of equal validity; more especially there is no reason in law—national or inter-

national—why a succeeding administration should not treat an executive agree-

ment made outside his competence by a preceding Executive as merely his per-

sonal pledge never binding under international law in the United States.’’

Buechler, Gary Michael. Constitutional limits on the President’s power to interpret

treaties, the Sofaer Doctrine, the Biden Condition, and the Doctrine of Binding

Authoritative Representations. Georgetown law journal, v. 78, Aug. 1990: 1983–

2024.

‘‘This note argues that neither the Biden Condition on or the Sofaer Doctrine

[which attempt to define the scope of the President’s authority to interpret trea-

ties within the constitutional allocation of the treaty-making power] strikes the

proper constitutional balance of treaty-making power between the Executive

and the Senate. It proposes a new formulation, the Doctrine of Binding Authori-

tative Representations (DBAR), to govern the use of implicit conditions binding

the Executive to its representations and thus restricting its power to interpret

treaties.’’

Byrd, Elbert M., Jr. Treaties and executive agreements in the United States: their

separate roles and limitations. The Hague, Martinus Nijhoff, 1960. 276 p.

Byrd examines the roles and limitations of treaties and executive agreements,

drawing upon the Constitution, the intentions of the framers of the Constitu-

tion, Supreme Court opinions, and the use of international agreements by the

U.S. throughout its history. He considers executive agreements necessary for

the national security of the United States ‘‘in a dangerous world, in which con-

ditions are subject to swift change,’’ and contends that treaties should only be

used for agreements which affect the powers reserved for the States.

Byrd, Robert C. Treaties. In his The Senate, 1789–1989: addresses on the history

of the United States Senate. Vol. 2. Bicentennial ed. Edited by Wendy Wolff.

Washington, U.S. Government Printing Office, 1991. (Document, Senate, 100th

Cong., 1st Sess., no. 100–20) (Senate Bicentennial publication) pp. 1–23. Origi-

nally delivered in the Senate on Apr. 10 and Apr. 29, 1987, and updated June

1989.

Cohen, Richard. Self-executing executive agreements: a separation of powers prob-

lem. Buffalo law review, v. 24, fall 1974: 137–158.

In this comment, the author argues that ‘‘as a matter of domestic law, the

President may make international agreements other than treaties.’’ He evalu-

ates ‘‘the various approaches which have been used to ascertain the origin and

nature of the qualifications limiting presidential power to make self-executing

executive agreements.’’

Colegrove, Kenneth Wallace. The American Senate and world peace. New York,

Vanguard Press [1944] 209 p.

The author contends that the U.S. treatymaking process is inadequate and

undemocratic. He draws on examples of Senate involvement in the treaty-mak-

ing process, especially the defeat of the Covenant of the League of Nations in

the Senate. Colegrove also describes instances in which the President has relied

upon executive agreements, rather than treaties. He suggests that abolition of

the two-thirds rule and of the Senate monopoly in ratification of treaties would

lead to greater cooperation between the Congress and the President regarding

foreign policy, and he discusses the problem of constitutional reform of the

treatymaking process. Congressional Quarterly, Inc. Making foreign policy.

Washington, Congressional Quarterly, 1988. 119 p.

Contents.—Making foreign policy.—National Security Council.—Treaty ratifi-

cation.—Defending Europe.—Euromissile negotiations.—The military build-

down in the 1990s.—Persian Gulf oil.—Dollar diplomacy. Reports originally ap-

peared in Editorial research reports.

Damrosch, Lori Fisler. The role of the United States Senate concerning ‘self-

executing’ and ‘non-self-executing’ treaties. Chicago-Kent law review, no. 3, v.

67, 1991: 515–532.

Examines ‘‘the usage of non-self-executing declarations in recent U.S. prac-

tice, with examples drawn from human rights treaties and economic agreements

***. Considers and criticizes the several rationales that might be proffered in

justification of the use of non-self-executing declarations, and contends the de-

vice should be confined to the limited class of cases when the House of Rep-

resentatives is expected to become actively engaged in implementing the trea-

ty.’’

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Dangerfield, Royden J. In defense of the Senate: a study in treaty-making. Norman,

University of Oklahoma, 1933. 365 p.

The author ‘‘attempts a systematic analysis of the effect of the Senate’s par-

ticipation in the ratification of treaties. An effort is made to measure quan-

titatively the effect of the Senate’s actions in dealing with 832 treaties, includ-

ing all treaties signed on behalf of the United States during the period from

February 6, 1778 to February 6, 1928.’’ ‘‘The factors influencing Senate action

are isolated for more detailed study by the application of the statistical method.

The effects of the present organizations and institutions are weighed. The inter-

play of personalities is placed in the setting of legislative-executive conflict.’’

Executive-congressional relations and the treaty ratification process; conference re-

port, Jan. 17–19, 1991. Washington, Woodrow Wilson International Center for

Scholars, the Henry L. Stimson Center, 1991. 20 p.

Partial contents.—Case studies of successful treaty ratification efforts.—Case

studies of failed treaty ratification efforts.—Legal and constitutional issues.—

The joint chiefs and ratification.—Executive-congressional relations.

Fitzgerald, Peter L. Executive agreements and the intent behind the treaty power.

Hastings constitutional law quarterly, v. 2, summer 1975: 757–771.

This note examines ‘‘the use of executive agreements in United States foreign

policy, as a means of concluding international compacts ***. The author exam-

ines the effect this trend has on the formal treaty process and the balance of

power between the executive and legislative branches.’’

Fleming, Denna Frank. The treaty veto of the American Senate. New York, G.P.

Putnam’s Sons, 1930. 325 p.

Fleming contends that ‘‘the failure of treaties for the advancement of peace

in the administration of every President since Benjamin Harrison left office, in

1893, creates a situation which calls for study and appraisal.’’

Contents.—The origins of the Senate’s power over treaties.—The relation of

the Senate to the negotiation of treaties.—The Senate’s assertion of a right to

amend treaties.—Treaties rejected by the Senate.—The action of the Senate on

arbitration treaties.—The earlier treaties of peace in the Senate [from the Jay

Treaty of 1794 through the Treaty of Paris of 1898].—The struggle over the

League of Nations.—The Senate reservations to the Treaty of Versailles.—The

attempt to enter the Permanent Court of International Justice.—The results of

the World Court reservations.—Interpretations of the Paris Peace Pact.—Some

conclusions on the legislative control of treaties.

Forkosch, Morris D. The United States Constitution and international relations:

some powers and limitations explored. California Western international law

journal, v. 5, winter 1975: 219–270.

This article analyzes the way in which the foreign relations of the United

States may be subject to the restrictions imposed by some constitutional

clauses. Concludes that constitutional powers and limitations in foreign rela-

tions abound ‘‘but there is no definitive understanding of their meaning. The

executive and judicial interpretations have conflicted, the legislative conflict

with the executive over power and jurisdiction has flourished, and there comes

through a hopeless feeling that no concrete resolution will ever occur.’’

Friedlander, Robert A. Should the U.S. Constitution’s treaty-making power be used

as the basis for enactment of domestic legislation? Implications of the Senate

approved genocide convention. Case Western Reserve journal of international

law, v. 18, spring 1986: 267–282.

Fryer, Keith E. Levengood, J. Michael. Arms control: SALT II—executive agreement

or treaty? Georgia journal of international & comparative law, v. 9, winter 1979:

123–136.

The article examines the question of ‘‘whether there exist constitutional as

well as political restraints upon executive discretion to classify agreements.’’

Furlong, William L. Scranton, Margaret E. The dynamics of foreign policymaking:

the President, the Congress, and the Panama Canal treaties. Boulder, CO,

Westview Press,  1984. 263 p.

Contents.—Introduction and analysis.—From conception and construction to

the new treaties.—Why change Panama Canal policy?—Assessing executive im-

pact: Presidents, their administrations, and the treaties.—Congress and the

treaties.—Implementation legislation and impacts.—Explanations, costs, and

conclusions.

Garrett, Stephen A. Foreign policy and the American Constitution; the Bricker

Amendment in contemporary perspective. International studies quarterly, v. 16,

June 1972: 187–220.

Garrett relates the controversy in 1954 over the Bricker amendment, which

sought to establish congressional control over treaties and executive agree-

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ments, to the senatorial campaign for greater influence over U.S. policy in Viet-

nam during the late 1960s and early 1970s. He examines the general problem

of executive-congressional conflict regarding foreign policy and the roles Con-

gress can and should have in foreign policy decisionmaking.

Gilbert, Amy M. Executive agreements and treaties, 1946–1973; framework of the

foreign policy of the period. Endicott, N.Y., Thomas-Newell, 1973. 213 p.

The author reviews the types of executive agreements and traces ‘‘the chan-

neling of foreign affairs through international agreements.’’ since World War II.

Chapter 6 covers the assessment of international agreements by the Bricker

movement in the 1950s, and principal versions of the Bricker amendment are

reprinted in Appendix A.

Glennon, Michael J. Constitutional diplomacy. Princeton, N.J., Princeton University

Press,  1990. 353 p.

———. The Senate role in treaty ratification. American journal of international law,

v. 77, Apr. 1983: 257–280.

‘‘A nation with more than one governmental hand at the foreign policy helm

can incur costs in credibility. The hand that signs is not the hand that delivers;

what looks like a good bargain to diplomats at the negotiating table may look

altogether different to legislatures in the cold light of constituents’ mail. The

domestic value of pluralistic governmental decisionmaking thus competes with

the international value of reciprocal expectations. The tension between these

values is particularly evident in the making of the foreign policy of the United

States ***. Generated principally by Watergate and Vietnam, the reassertion

by Congress of its foreign policy prerogatives has raised new questions concern-

ing the respective scope of legislative and executive powers in the making of

international agreements. This article analyzes several newly arisen issues that

reflect the heightened ‘value tension’ described above, and it suggests resolu-

tions consistent with the vindication of both values.’’

Hardwick, Deborah Godich. The Iranian Hostage Agreement cases: the evolving

Presidential claims settlement power. Southwestern law journal, v. 35, Feb.

1982: 1055–1077.

‘‘This Comment traces the President’s role in international affairs and the

Presidential power to enter into executive agreements from the earliest days of

the nation to the present. Particular emphasis is placed on the evolution of the

President’s power to settle claims of United States citizens by executive agree-

ment. In addition, this Comment examines several recent cases arising out of

the Iranian Hostage Agreement, and the impact of Dames & Moore v. Regan,

the Supreme Court’s initial response to the Iranian Hostage Agreement.’’

Hayden, Joseph Ralston. The Senate and treaties, 1789–1817; the development of

the treaty-making functions of the United States Senate during their formative

period. New York, Da Capo Press, 1970 [ 1920] 237 p.

The author surveys the treatymaking functions of the Senate from 1789

through 1817 in an attempt ‘‘to discover the conception of the place of the Sen-

ate in treaty-making then held by the various departments of the government,

to trace the development of the procedure of the Senate in the transaction of

treaty business, to ascertain the relations between the Senate and the executive

in this field, and to investigate the effect of the position of the Senate in our

constitutional system upon the relations between the United States and other

nations.’’

Henkin, Louis. Foreign affairs and the Constitution. Foreign affairs, v. 66, winter

1987–88: 284–310.

‘‘After 200 years the difficult constitutional issues of foreign affairs arise from

the so-called separation of powers and the various checks and balances between

Congress and the president ***. The constitutional blueprint has proved to be

unclear and incomplete as regards foreign affairs, and there is no agreed guid-

ing principle to help make its provisions clear, or to fill the lacunae. National

experience has provided some answers, but Congress and president continue to

tug for more of the foreign policy blanket.’’

Holt, William Stull. Treaties defeated by the Senate; a study of the struggle between

President and Senate over the conduct of foreign relations, Gloucester, Mass.,

P. Smith, 1964 [ 1933] 328 p.

Holt examines ‘‘the circumstances attending the defeat of every treaty [from

1789 to 1920] that failed of completion through the action of the Senate, in the

hope of ascertaining which were lost either because of domestic politics or be-

cause of the const between President and Senate.’’

Hyman, Sharon G. Executive agreements: beyond constitutional limits? Hofstra law

review, v. 11, winter 1983: 805–844.

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‘‘This note analyzes the international agreement-making powers of the Presi-

dent by examining the various categories of international agreements, the

claimed authority for each, and the problems associated with each type of agree-

ment. Relevant court decisions dealing with the parameters of presidential pow-

ers in foreign affairs are discussed and controversial agreements and the result-

ing tension between Congress and the Executive are examined. The difficult

issue of executive discretion in choosing the particular mode of agreement is ex-

plored, as are congressional attempts to exert control over the Executive in this

area. Finally, the need for a system of greater consultation between the legisla-

tive and executive branches is discussed and a concluding proposal is sug-

gested.’’

Jackson, John H. Status of treaties in domestic legal systems: a policy analysis.

American journal of international law, v. 86, Apr. 1992: 310–340.

‘‘This article explores some of the policy considerations relating to the effect

of an international treaty in domestic law.’’

Johnson, Loch K. The making of international agreements: Congress confronts the

executive. New York, New York University Press, 1984. 206 p.

This work explores the ‘‘disagreements among policymakers and scholars con-

cerning the proper executive-legislative balance in the making of international

agreements.’’ Chapter one of this book discusses the procedures of agreement-

making. Chapter two examines the targets of American overseas commitments.

Agreement-making within the area of military policy is examined in chapter

three. Chapters four and five examine the operations of the Congress. Chapter

six summarized the theme of the volume, that foreign policy should be con-

ducted on the basis of a partnership between the executive and legislative

branches, and outlines some *** prescriptions toward this end with respect of

agreement-making.

Johnson, Loch. McCormick, James M. The democratic control of international com-

mitments. Presidential studies quarterly, v. 8, summer 1978: 275–283.

‘‘This paper assesses the extent to which democratic controls have operated

in the making of American commitments abroad in the postwar period. First,

we survey the volume and content of agreements made by the United States

from 1946 to 1972. Secondly, we analyze the form that these agreements have

taken—treaty, statutory agreement and executive agreement. While the prepon-

derance of agreements have taken forms involving both the Congress and the

Executive, *** a small, but significant, group of commitments have not.’’

Kaufman, Natalie Hevener. Whiteman, David. Opposition to human rights treaties

in the United States Senate: the legacy of the Bricker Amendment. Human

rights quarterly, v. 10, Aug. 1988: 309–227.

‘‘Thirty years after the defeat of the Bricker Amendment, the covenants and

most other major human rights treaties have yet to receive Senate approval.

During the same period, these covenants have been ratified by eighty-five other

nations, including fifteen Western democracies. The question which deserves

our attention is why the United States has not ratified these treaties as well.’’

Koh, Harold Hongju. The President versus the Senate in treaty interpretation:

what’s all the fuss about? Yale journal of international law, v. 15, summer 1990:

331–344.

‘‘Article II of the Constitution mandates that the Senate and President act as

partners in the treaty process, with each institution fulfilling a constitutional

role ***. Even when particular issues prove contentious, as recently occurred

during the Anti-Ballistic Missile (ABM) ***. the two branches simply need one

another too much to allow political stalemate and acrimony to persist indefi-

nitely.’’

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,

summer 1992: 981–1072.

‘‘Several recent international agreements limiting nuclear or other advanced

weaponry purport to authorize the parties to modify some of their negotiated

terms through informal mechanisms other than the traditional treaty amend-

ment, thereby cutting the United States Congress out of the revision process

***. This Article dissects the legal and policy issues raised by this proposed av-

enue for creating new treaty terms. It offers a critique of the practice and some

recommendations for constraining the danger before a constitutional crisis fully

erupts.’’

Kuchenbecker, David J. Agency-level executive agreements: a new era in U.S. treaty

practice. Columbia journal of transnational law, v. 18, no. 1, 1979: 1–77.

‘‘This article examines in detail the employment of agency-level executive

agreements as an instrument of U.S. treaty practice ***. Section 3 assesses the

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current state of the agencies’ agreement practice, identifying the strengths and

weaknesses thereof, examples of intra-agency disputes involving the State De-

partment, and congressional action, in the form of newly enacted legislation, to

remedy some of the weaknesses.’’ The ‘‘weaknesses’’ include lack of cooperation

by agencies with the State Department in meeting the requirements of the Case

Act, that executive agreements be transmitted to Congress within 60 days of

their execution.

Leary, Margaret A. International executive agreements: a guide to the legal issues

and research sources. Law library journal, v. 72, winter 1979: 1–11.

‘‘This article outlines the legal issues, both current and historical, raised by

the use of executive agreements in international matters and cites the most use-

ful sources for further research.’’

Lippa, Alison V. The legality, efficacy, and future use of international executive

agreements: an analysis of agreements in criminal matters. American criminal

law review, v. 29, summer 1992: 1301–1348.

‘‘The first half of the [comment] discusses the general constitutional back-

ground of executive agreements and focuses on their impact on the separation

of powers doctrine. The second half of the [comment] deals more specifically

with sole executive agreements which facilitate the exchange of information be-

tween nations in investigations of criminal matters. The [comment] con-

centrates on case-specific and issue-specific agreements and analyzes the utility

of such agreements in light of alternative ways of obtaining mutual assistance

for the sharing and transferring of information and evidence in criminal inves-

tigations and prosecutions.’’

Loeb, Benjamin S. Amend the Constitution’s treaty clause. Bulletin of the atomic

scientists, v. 43, Oct. 1987: 38–41.

‘‘The Constitution’s two-hundredth anniversary presents an ideal occasion,

says the author, to reexamine the outmoded requirement that treaties be rati-

fied by a two-thirds vote of the Senate.’’

Majak, R. Roger. International agreements, an analysis of executive regulations and

practices. Prepared for the use of Committee on Foreign Relations, United

States Senate by the Congressional Research Service, Library of Congress,

1974–1975. Washington, U.S. Government Printing Office, 1977. 73 p.

This ‘‘study attempts to describe the procedures and practices by which inter-

national agreements are formulated and entered into by the United States, and

to assess those procedures and practices in terms of possible improvements in

congressional oversight and involvement.’’ The study is based on primary docu-

ments and interviews with officials involved in making international agree-

ments on behalf of the United States. A chart, consisting of 22 folded leaves,

is included in the pocket. It compares successive State Department procedures

regarding treaties and international agreements of the U.S. under the Original

Circular 25 of May 15, 1953; Circular 175 of December 13, 1955; Circular 175

of June 6, 1969; proposed revision of Circular 175 of August 15, 1973; and the

final revised Circular 175 of October 25, 1974. ‘‘96th Congress, 1st session.

Committee print.’’

Mathews, Craig. The constitutional power of the President to conclude international

agreements. Yale law journal, v. 64, Jan. 1955: 345–389.

Examines the scope of the President’s power to conclude international agree-

ments when he acts without the authorization of Congress or the Senate. Also

considers to what extent Congress can constitutionally limit the President in

the exercise of this power.

McClure, Wallace M. International executive agreements; democratic procedure

under the Constitution of the United States. New York, Columbia University

Press, 1941. 449 p.

McClure surveys the use of executive agreements and treaties, contends that

treaties and executive agreements have been used interchangeably in the past,

and examines the constitutional powers of the President and Congress regard-

ing international agreements. He argues that to require assent of two-thirds of

the Senate for treaty ratification is to promote a form of minority rule. McClure

contends: ‘‘There is nothing that can be done by treaty that cannot be done by

Congress—confirmed executive agreement, which, viewed as an instrument of

national policy, is simply a democratic treaty—a treaty enacted through demo-

cratic processes.’’

McDougal, Myres S. Lans, Asher. Treaties and congressional-executive or Presi-

dential agreements: interchangeable instruments of national policy. Yale law

journal, v. 54, Mar. 1945: 181–351; June 1945: 534–615.

The authors refute the suggestions that executive agreements must be con-

fined to unimportant matters, in light of the broad constitutional powers of the

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Congress and the President. They describe how congressional-executive and

Presidential agreements have become interchangeable with treaties in U.S. dip-

lomatic practice. McDougal and Lans compare the legal consequences which

courts and other governmental officials attach to congressional-executive and

presidential agreements and treaties, contending that there are no important

differences. They examine the reasons ‘‘that are alleged to have motivated the

original adoption of the treaty-making procedure,’’ appraise their contemporary

relevance and consider how congressional-executive and Presidential agree-

ments may be used to meet urgent problems in the post-war world ‘‘if the mi-

nority controlled treaty making procedure should for any reason become inad-

equate to meet the responsibilities of that world.’’ Edwin Borchard, in Treaties

and Executive Agreements—A Reply, which immediately follows the second

part of the McDougal-Lans article (pp. 616–664), contends that there are signifi-

cant differences between treaties and executive agreements. He critiques the

proposals by McDougal and Lans for using congressional-executive agreements

in place of treaties.

Merin, Kenneth D. The treaty power and congressional power in conflict: cession of

United States property in the Canal Zone to Panama. Seton Hall law review,

v. 8, no. 3, 1977: 434–459.

‘‘After discussing the status of American sovereignty in the Canal Zone, as

well as the general scope of the treaty power, this Article *** examine[s] the

grounds on which the Executive branch has based its claim to concurrent power

over the disposal of United States territory and property.’’

Michelson, Melissa R. Explorations in public opinion—presidential power linkages:

congressional action on unpopular foreign agreements. Political communication,

v. 15, Jan./Mar. 1998: 63–82.

‘‘This article explores the effect of public opinion on congressional action on

foreign agreements, focusing on the Panama Canal treaties of 1977 and the

North American Free Trade Agreement of 1993. The two agreements are highly

suited to comparison, and provide an excellent test of how shifts in public opin-

ion influence shifts in congressional support. Two types of opinion are included:

(1) the general rating of the President’s job performance, and (2) opinion on the

foreign agreement being debated in Congress.’’

Murphy, John F. Treaties and international agreements other than treaties: con-

stitutional allocation of power and responsibility among the President, the

House of Representatives, and the Senate. Kansas law review, v. 23, winter

1975: 221–248.

This ‘‘Article examines such issues as the scope of the President’s independent

authority to conclude international agreements, the authority of the President

and Congress to combine their powers and conclude so-called congressional-ex-

ecutive agreements in place of treaties and the extent to which such agreements

are interchangeable with treaties in domestic and international legal effect, and

past and present efforts to resolve these problems in the form of legislation and

other, more informal procedures. Finally, the Article attempts an appraisal, in

light of constitutional law and policy, of the present international agreement-

making roles of the President and the two Houses of Congress, and sets forth

proposals for possible reforms in this areas.’’

Ohly, D. Christopher. Advice and consent: international executive claims settlement

agreements. California Western international law journal, v. 5, winter 1975:

271–296.

In this article, Ohly considers the constitutional power of Congress to check

the Presidential use of executive agreements in settling international claims by

nationals of the United States against foreign governments.

Paige, Joseph. The law nobody knows: enlargement of the Constitution—treaties

and executive agreements. New York, Vantage Press,  1977. 209 p.

Partial contents.—The constitutional authority for treaty making.—The sta-

tus of treaty-implementing acts.—Ratification by joint resolution.—Executive

agreements.—Judicial development of treaty law.—Suggestions, plans and opin-

ions.

Pan, Stephen C. Legal aspects of the Yalta Agreement. American journal of inter-

national law, v. 46, Jan. 1952: 40–59.

In a survey of various legal questions regarding the Yalta Agreement, Pan re-

views actions and statements by President Roosevelt ‘‘which implied that the

Yalta Agreement might not be exempt from congressional or Senatorial ap-

proval.’’ He discusses whether executive agreements are binding on subsequent

Administrations since ‘‘an executive agreement is signed by the Chief Executive

and not solemnly entered into in the name of the ‘United States of America’ in

the form of international ‘treaties’.’’

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Rague, Margaret A. The reservation power and the Connally Amendment. New York

University journal of international law and politics, v. 11, fall 1978: 323–358.

‘‘This note examines the Connally Amendment in the context of the history

and present use of the United States Senate reservation power. The Note fur-

ther measures the Connally Amendment against the yet unfolding international

rules with regard to use of the reservation power. The Note also reviews domes-

tic criticism and support of the Amendment and efforts to repeal the Amend-

ment, and examines the future of the Amendment as an instrument of U.S. for-

eign policy.’’

Randall, Kenneth C. The Treaty power. Ohio State law journal, v. 51, no. 5, 1990:

1089–1126.

‘‘This Article’s thesis is straightforward: Where article II of the Constitution

empowers the executive to govern exclusively over a particular topic, the Presi-

dent may unilaterally make, reinterpret, and terminate executive agreements

without any senatorial consent ***. This article will examine executive agree-

ments, the interpretation of international agreements, and the termination of

international agreements.’’

Reisman, W. Michael. Necessary and proper: executive competence to interpret trea-

ties. Yale journal of international law, v. 15, summer 1990: 316–330.

‘‘The complex of separate branches with some overlapping and sequential

functions and checks and balances has achieved effectiveness and control in the

area of treaty-making and performance.’’

Reter, Ronald F. President Theodore Roosevelt and the Senate’s ‘‘advice and con-

sent’’ to treaties. Historian (New Mexico), v. 44, Aug. 1982: 483–504.

‘‘The present era of senatorial aggressiveness questions the development of

the modern presidency. T.R.’s alleged success in circumventing the Senate is a

key element in this development. The constitutional effect and significance of

Rooseveltian executive agreements are suspect ***. A crucial aspect of further

investigations must be the separation of reputation from the actual successful

exercise of power.’’

Rovine, Arthur W. Separation of powers and international executive agreements. In-

diana law journal, v. 52, winter 1977: 397–431.

The author establishes criteria for identifying international agreements and

examines criticisms of executive branch practices regarding international agree-

ments, including lack of consultation with Congress. Rovine considers the inten-

tion of the framers of the Constitution and the authority of the President to

enter into executive agreements based on his constitutional powers. Rovine re-

views State Department guidelines listing the variables examined in determin-

ing whether a particular agreement should be a treaty or an executive agree-

ment. He suggests that ‘‘if detailed regulation over specific areas proves insuffi-

cient for the Congress, then the current conflict between the two branches over

international agreements will be resolved not so much by arriving at definitive

legal solutions to complex separation of powers issues, but rather through an

improved political process that entails an ongoing and cooperative system of

consultation on issues of significance.’’

Skoblow, David V. The Panama Canal treaties and the property disposal clause: do

the treaties propose an unconstitutional giveaway? Georgetown law review, v.

66, Feb. 1978: 871–897.

‘‘This Comment examines the constitutional and legal issues raised by the

proposed transfer by treaty of sovereignty and property in the Canal Zone, and

attempts to determine what rights the United States would relinquish, if the

treaties become effective.’’

Slonim, Solomon. Congressional executive agreements. Columbia journal of

transnational law, v. 14, no. 3, 1975: 434–450.

‘‘If indeed the protection of small States and sectional interests was a crucial

factor, if not the crucial factor, in the formulation of the treaty-making provi-

sion, it appears highly unlikely that a majority vote in both Houses of Congress

would represent a superior title to a two-thirds vote in the Senate alone, for

the safeguards originally built into the latter provision would be obliterated.

Yet, while the attempt to equate congressional-executive agreements with trea-

ties on the basis of the Framers’ intentions is shaky at best, the same cannot

be said of validation of congressional-executive agreements by reference to sub-

sequent constitutional practice ***. There still remain various categories of

international agreements which do not fall within the scope of congressional

powers, whether enumerated or implied. If the intentions of the Founding Fa-

thers were adhered to, these matters would require the advice and consent of

two-thirds of the Senate. But, as noted, practice, by and large, has modified the

assumption of the Founding Fathers.’’

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Stevens, Charles J. The use and control of executive agreements: recent congres-

sional initiatives. Orbis, v. 20, winter 1977: 905–931.

The author examines the use of executive agreements and reviews congres-

sional initiatives to insure legislative involvement in the development of U.S.

commitments abroad. Stevens recounts the debate in the 1950s over the Bricker

amendment and other proposals to assure legislative control over the effects of

treaties and executive agreements. He reviews the findings and recommenda-

tions of the Senate Foreign Relations Committee, Ad Hoc Subcommittee on

United States Security Agreements and Commitments Abroad (the Symington

Subcommittee), in 1970. Stevens also describes U.S. military base negotiations

with Spain and the use of a treaty of friendship and cooperation in 1976, to re-

place previous executive agreements with Spain. He discusses the Case Act

which requires the Secretary of State to ‘‘transmit to the Congress the text of

any international agreement, other than a treaty, to which the United States

is a party’’ within 60 days of its entry into force. Stevens considers congres-

sional requests that military base agreements with Portugal and Bahrain, con-

cluded in 1971, be submitted for approval as treaties, and subsequent efforts

to nullify the effect of the agreements by refusing to appropriate funds for their

implementation. He also surveys efforts to revive legislation that would permit

a congressional veto of executive agreements.

Strong, Robert A. Jimmy Carter and the Panama Canal treaties. Presidential stud-

ies quarterly, v. 21, spring 1991: 269–286. Symposium on Parliamentary Par-

ticipation in the making and operation of treaties. Edited by Stefan A.

Riesenfeld and Frederick M. Abbott. Chicago-Kent law review, v. 67, no. 2,

1991: 293–704.

Partial contents.—The participation of parliament in the elaboration and ap-

plication of treaties, by Francois Lichaire.—The Role of the United States Sen-

ate concerning ‘‘self-executing’’ and ‘‘non-self-executing’’ treaties, by Lori Fisler

Damrosch.—The Constitutional power of the United States Senate to condition

its consent to treaties, by Michael J. Glennon.—The scope of U.S. Senate control

over the conclusion and operation of treaties, by Stefan A. Riesenfeld and Fred-

erick M. Abbott.—The Role of the President, the Senate and Congress with re-

spect to arms control treaties concluded by the United States, by Phillip R.

Trimble, and Jack S. Weise.

Tananbaum, Duane A. The Bricker amendment controversy: its origins and Eisen-

hower’s role. Diplomatic history, v. 9, winter 1985: 73–93.

Examines the controversy during the 83d Congress over the constitutional

amendment proposed by Senator Bricker of Ohio that would have limited the

effect of treaties and executive agreements within the United States.

Tomain, Joseph P. Executive agreements and the bypassing of Congress. Journal of

international law and economics, v. 8, June 1973: 129–139.

In this comment Tomain discusses how the executive branch has significantly

increased its power in foreign policy by using executive agreements. He also

considers the implications of the Transmittal Act of 1972.

Treaty ratification. Washington, Congressional Quarterly, 1988. 38–51 p. (Editorial

research reports, 1988, v. 1, no. 4)

Partial contents.—INF treaty moves on to the next phase in the ratification

process.—Prospects for INF ratification; memories of 1979 SALT II treaty.—

After the Senate vote: waiting for president and Soviets to respond.

The Transfer of destroyers to Great Britain. American journal of international law,

v. 34, Oct. 1940: 569–587, 680–697, 728–736.

In comments, Quincy Wright (pp. 680–689) and Edwin Borchard (pp. 690–

697) examine the constitutional authority of President Roosevelt to agree, with-

out congressional consultation, to provide Great Britain with 50 over-age de-

stroyers in exchange for 99-year leases on naval bases in the Caribbean. Both

critique Attorney General Robert H. Jackson’s Opinion on the exchange, which

is reprinted on pp. 728–736. Regarding executive-congressional relations and

use of an executive agreement instead of a treaty, Wright contends: ‘‘If the aid

of Congress is necessary for fulfillment, the President should, before finally ap-

proving the instrument, either get the advice and consent of the Senate, thus

making it a treaty in the constitutional sense, or he should get an authorizing

act from Congress making appropriations or enacting legislation to fulfill such

obligations. Since the present agreement imposed no such obligation requiring

Congressional action, neither of these procedures was necessary.’’

Borchard urges ‘‘that the transaction be regularized so far as and as soon as

possible by act or resolution of Congress.’’ He argues: ‘‘It has been the usual

practice, aside from executive agreements in minor matters or under congres-

sional authority, to submit important matters to Congress or the Senate for ap-

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proval.’’ Apart from subordination of Presidential power to the ‘‘applicable provi-

sions of the Constitution,’’ ‘‘there are constitutional understandings which re-

quire that agreements of great importance, particularly involving the question

of war and peace, shall not be concluded by Executive authority alone.’’

He critiques the relevance of precedents cited by the Attorney General, re-

futes arguments justifying use of an executive agreement instead of a treaty,

and also raises questions of international law.

Herbert Briggs (pp. 569–587) provides historical and legal observations on the

transfer of naval vessels from a neutral navy to a belligerent navy.

U.S. Congress. House. Committee on International Relations. Subcommittee on

International Security and Scientific Affairs. Congressional review of inter-

national agreements. Hearings, 94th Cong., 2d Sess., June 22–July 22, 1976.

Washington, U.S. Government Printing Office, 1976. 416 p.

The subcommittee considers legislation providing for congressional review of

international executive agreements. Discussion is included on: the Senate’s trea-

ty powers, the President’s authority to conclude agreements based on his con-

stitutional powers, the power of Congress to demand transmission of agree-

ments and to suspend the entering into force of executive agreements, and the

intention of the framers of the Constitution. Individual cases discussed include

the Rush-Bagot Agreement of 1817 with Great Britain limiting naval forces on

the Great Lakes. Professor Arthur Bestor suggests that one clear precedent

which emerges from the handing of the Rush-Bagot Agreement is ‘‘that it is not

a prerogative of the President to decide whether an international agreement

should be submitted for approval as a treaty. The power to decide belongs to

the Senate.’’ The subcommittee also considers whether treaties and executive

agreements are inter-changeable, as well as the constitutional problems posed

by concurrent resolutions and legislative vetoes, the evolution of executive

branch use of executive agreements instead of treaties, and the importance of

prior consultation and cooperation between the executive and legislative

branches in the making of international agreements. Executive branch perspec-

tives on constitutional and practical problems posed by the proposed legislation

are also included. Appended to the hearings are texts of bills regarding congres-

sional review of executive agreements, relevant journal articles, executive and

congressional documents, and summaries of the hearings, with selected bibliog-

raphies on topics addressed.

U.S. Congress. Senate. Committee on Foreign Relations. International agreements

consultation resolution; report to accompany S. Res. 536. Washington, U.S. Gov-

ernment Printing Office, 1978. 4 p. (95th Cong., 2d Sess., S. Rept. 95–1171)

The Committee on Foreign Relations reports favorably on S. Res. 536 and rec-

ommends that the resolution pass. ‘‘The resolution expresses 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

through the Secretary of State. This provision is similar to consultation provi-

sions contained in Senate Resolutions 424 and 486 in the 95th Congress as well

as Senate Resolution 24 in the 95th congress, all sponsored by Senator Clark.

The latter resolution was incorporated in the Foreign Relations Authorization

Act, Fiscal Year 1979 (S. 3076) as section 502, as reported by the committee.

This section was stricken on the Senate floor, with the exception of the con-

sultation provision on which the Senate receded in conference.’’ This resolution

is similar to that provision.’’

———. The role of the Senate in treaty ratification. Washington, U.S. Government

Printing Office, 1977. 78 p.

At head of title: 95th Congress, 1st session. Committee Print.

Partial contents of staff memorandum prepared by M. Hansen.—Receipt and

committee action.—Amendments, reservations, understanding, interpretations,

etc.—Floor action.

Partial contents of the appendices.—Senate procedure, S. Doc. 93–21, ex-

cerpt.—the meaning of ‘‘advice and consent of the Senate: in the treaty-making

process, by E. Collier, CRS.—Treaties returned to the President on the initiative

of the Senate, by L. Wu, CRS.—Precedents for U.S. abrogation of treaties, by

V. Bite, CRS.

———. Treaty powers resolution. Hearings, 94th Cong., 2d Sess., on S. Res. 468,

July 21 and 28, 1976. Washington, U.S. Government Printing Office, 1977. 127

The committee considers Senate Resolution 486, which ‘‘expresses the sense

of the Senate that foreign international agreements involving significant politi-

cal, military, or economic commitments to foreign countries properly constitute

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treaties which should be submitted to the Senate for its advice and consent.’’

Professor Arthur Bestor reviews the intent of the framers of the Constitution

and use of international agreements in the early years of the Republic, consider-

ing especially the Rush-Bagot Agreement of 1817–1818, which provided tor the

naval demilitarization of the Great Lakes. Professor Richard Falk discusses

problems in deciding which commitments should be treaties. Monroe Leigh,

Legal Advisor for the Department of State, suggests that the resolution would

‘‘seriously diminish the role of the House of Representatives in authorizing or

approving many international agreements *** would interfere with the Presi-

dent’s role as the nation’s negotiator of international agreements *** and would

raise questions with respect to the requirements concerning adoption of legisla-

tion.’’

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. 28 p.

At head of title: 91st Congress, 2d Session. Committee Print.

This report highlights specific findings of the subcommittee during its 22-

month study of U.S. commitments abroad. Many of the commitments had been

unknown to the Congress prior to the study. The report concludes with rec-

ommendations that ‘‘both Congress and the Executive Branch should place more

emphasis on new arrangements for continuing, objective review of all aspects

of military and military-related programs and activities overseas.’’

U.S. Congress. Senate. Committee on the Judiciary. Subcommittee on Separation of

Powers. Congressional oversight of executive agreements. Hearing, 92d Cong.,

2d Sess., on S. 3475. Apr. 24 *** May 19, 1972. Washington, U.S. Government

Printing Office, 1972. 668 p.

In its consideration of S. 3475, a bill providing for congressional review of ex-

ecutive agreements, the committee examines the constitutional issues and sepa-

ration of powers problems presented by the increasing use of executive agree-

ments. Statements by Senators, scholars, and executive branch officials are sup-

plemented by relevant government documents, academic publications, and arti-

cles from the press.

———. Congressional oversight of executive agreements—1975. Hearings, 94th

Cong., 1st Sess., on S. 632 and S. 1251. May 13 *** July 25, 1975. Washington,

U.S. Government Printing Office, 1975. 505 p.

‘‘The purpose of this inquiry is to examine closely the use of executive agree-

ments, and to explore those remedial measures which might be employed to re-

dress the usurpation of power by the executive branch which has occurred in

this area of foreign policy.’’ The appendix contains articles, executive docu-

ments, and congressional publications concerning the use of executive agree-

ments and treaties in general and in specific instances, including unreported

agreements with the Republic of Korea, unreported intelligence agreements, De-

fense Department agreements, agreements regarding the early warning system

in the Sinai, and correspondence regarding U.S. assistance to South Vietnam

in the post-settlement period.

———. Treaty ratification process and separation of powers. Hearing, 97th Cong.,

2d Sess., on S.J. Res. 212. July 30, 1982. Washington, U.S. Government Print-

ing Office, 1982. 201 p. ‘‘Serial no. J–97–128’’ Item 1042–A, 1042–B (microfiche)

U.S. Department of State. The law of treaties and other international agreements.

In its Digest of United States practice in international law, 1974, by Arthur W.

Rovine. Washington, U.S. Government Printing Office, 1975. pp. 195–239.

Contents.—Section 1.—Conclusion and entry into force.—Definition of inter-

national agreement.—Procedures.—Ratification.—Depository functions.—Sec-

tion 2.—Observance, application and interpretation.—Section 3.—Amendment

and modification.

United States foreign relations law: documents and sources. Edited by Michael J.

Glennon [and] Thomas M. Franck. London; New York, Oceana Publications,

1980+ v. 1, 2.

‘‘The materials contained in these volumes deal with the foreign relations

power of the federal government. For the most part they consist of documents

presenting the views of the executive and legislative branches—or components

thereof—concerning the scope of their authority.’’

Contents.—Vol. 1.—What constitutes an international agreement?—The

power to enter into executive agreements and the role of Congress.—Treaty or

executive agreement: choice of instruments.—Congressional controls over execu-

tive agreements: recent proposals.—Vol. 2—The role of the Senate in treaty

ratification.—Legal consequences of conditions attached to ratification of trea-

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ties.—Role of the House of Representatives in the making of international trea-

ties.—Termination of treaties.

Vartian, Armen R. Approval of SALT agreements by joint resolution of Congress.

Harvard international law journal, v. 21, summer 1980: 421–466.

‘‘This Comment will examine the constitutional concerns implicated by the

decisionto approve SALT agreements by joint resolution of Congress. It will be

argued not only that such agreements are constitutionally valid, but that there

should exist a presumption toward use of the joint resolution for SALT agree-

ments. The argument will demonstrate that the three commonly offered ‘tests’

for determining which international agreements require the treaty form are

useless in the context of SALT agreements.’’

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 negotia-

tion. Ohio State law journal, v. 31, summer 1970: 490–515.

After reviewing E.S. Corwin’s judgments on the treatymaking clause, Webb

contends that the President does not have the constitutional power to negotiate

a peace treaty with North and South Vietnam without the formal advice and

consent of the Senate.

Wendel, Gary C. Constitutional authority for executive agreements pertaining to the

Armed Forces. Air Force law review, v. 20, 1978: 71–86.

‘‘Of serious concern to the Senate, however, are those international agree-

ments made by the president without congressional action or senatorial concur-

rence. This discussion concerns only those agreements made solely on the basis

of the President’s ‘constitutional authority’.’’

Wright, Quincy. The United States and international agreements. American journal

of international law, v. 38, July 1944: 341–355.

Wright examines four perspectives on the constitutional law governing the

making of international agreements: 1) that exclusive power to make inter-

national commitments is vested in the President acting with advice and consent

of two-thirds of the Senate; 2) that the constitutional authority to make inter-

national agreements depends on the subject matter of the agreements; 3) that

Congress is the sovereign authority in the central government and therefore has

authority to determine how international agreements should be made ‘‘apart

from explicit constitutional grants to other bodies,’’ and 4) ‘‘that the making of

international agreements is by nature an executive function,’’ and the President

can make international agreements on any subject. Wright discusses the as-

sumptions and arguments underlying these perspectives, reviews constitutional

history, and surveys the Senate record in treatymaking. He writes: ‘‘The conclu-

sion may be drawn that in the making of international agreements, particularly

those concerned with the conclusion of peace and establishment of institutions

for perpetuating it, the matter rests in a very real sense in the hands of the

President and the people. The President has ample legal power to negotiate, on

these subjects, and ample political power if he can command a majority in both

Houses of Congress ***. There has never been any Constitutional bar to con-

cluding international agreements within the scope of Congressional power if de-

sired by the President and a majority of both Houses.’’

COMMUNICATION OF INTERNATIONAL AGREEMENTS TO CONGRESS

U.S. Congress. House. Committee on Foreign Affairs. Transmittal of executive

agreements to Congress; reports to accompany S. 596. [Washington, U.S. Gov-

ernment Printing Office] 1972. 4 p. (92d Cong., 2d Sess., House. Report no. 92–

1301)

These reports include consideration of the meaning and background of bill S.

596, requiring that international agreements other than treaties be transmitted

to the Congress within 60 days after they go into effect. The reports also contain

discussion of comments by the Committee of Foreign Affairs regarding the bill.

U.S. Congress. House. Committee on Foreign Affairs. Subcommittee on National Se-

curity Policy and Scientific Developments. International executive agreements.

Hearing, 92d Cong., 2d Sess., on S. 596, H.R. 14365, and H.R. 14647. June 19,

1972. Washington, U.S. Government Printing Office, 1972. 29 p.

Testimony of Senator Clifford Case and Carl F. Salans, Deputy Advisor, De-

partment of State.

These hearings were held to consider ‘‘legislation which would require that

the texts of all future executive agreements concluded by the President with for-

eign states must be transmitted to Congress within 60 days after their execu-

tion.’’ Discussion is included on the meaning of the legislation, why it is needed,

and its security implications.

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U.S. Congress. Senate. Committee on Foreign Relations. Foreign Relations Author-

ization Act, fiscal year 1979; report together with additional views on S. 3076.

Washington, U.S. Government Printing Office, 1978. pp. 45–56. (95th Cong., 2d

Sess., Senate. Report. No. 95–842)

The cited section of this report addresses problems in the reporting of inter-

national agreements by executive branch agencies to Congress and discusses

Title V. of S. 3076, which would amend the Case-Zablocki Act to 1) require

transmittal of oral agreements, reduced to writing, 2) require the President to

report to Congress annually, explaining why any agreement of the previous year

was transmitted late, 3) require that no agreement be concluded or submitted

without prior approval of te Secretary of State or the President, 4) place the

Secretary of State in the position of determining whether an arrangement con-

stitutes an international agreement within the meaning of the Case Act and 5)

authorize the President to promulgate rules and regulations necessary to carry

out the Act.

In the final version of the act approved by the President, the word ‘‘inter-

national’’ was inserted between oral and agreements, and point 3 was changed

to specify that no agreement be concluded or submitted without prior consulta-

tion with the President or Secretary of State.

———. Transmittal of executive agreements to Congress. Hearings, 92d Cong., 1st

Sess., on S. 596. Oct. 20 and 21, 1971. Washington U.S. Government Printing

Office, 1971. 97 p.

These hearings on the Case Bill, which would require the transmittal of all

executive agreements to Congress within 60 days of their execution, include

statements by Senator Case on the bill, its legislative history, and Senate rela-

tions with the executive branch. They also include statements by Professor Ruhl

J. Bartlett on the increasing use of executive agreements and on constitutional

issues regarding their use. Professor Alexander Bickel considers the need for

congressional review of U.S. military deployments abroad, the constitutionality

of the Case Bill, and the possibility that Presidents might invoke executive

privilege regarding specific agreements. John R. Stevenson, Legal Adviser, De-

partment of State, and Charles I. Bevans, Assistant Legal Adviser for Treaty

Affairs, provide State Department perspectives on the Case Bill, describe proce-

dures followed in entering into agreements, review Presidential powers, propose

alternatives and amendments to the bill, and discuss problems concerning secu-

rity, classified information, and intelligence operations.

———. Transmittal of executive agreements to Congress; report to accompany S.

596. Washington, U.S. Government Printing Office, 1972. 5 p. (92d Cong., 2d

Sess., Senate. Report no. 92–591)

Provides background on bill S. 596, requiring that international agreements

other than treaties be transmitted to the Congress within 60 days after they

go into effect, and includes comments by the Committee on Foreign Relations

regarding the bill.

U.S. Department of State. Memo of March 12, 1976, from Monroe Leigh, Legal Ad-

viser, Department of State, to all key Department personnel. In its Digest of

United States practice in international law, 1976. [Washington, 1976] pp. 263–

267.

Specified the criteria the State Department’s Legal Adviser applies in decid-

ing what constitutes an international agreement, for ‘‘purposes of implementing

legal requirements with respect to publication of international agreements and

transmittal of international agreements to Congress.’’

U.S. Department of State. Office of the Secretary. Coordination and reporting of

international agreements. Federal register, v. 46, July 13, 1981: 35917–35921.

The text of Department of State departmental regulations 108.809, 22 CFR

Part 181, is provided, with summary and supplemental information. ‘‘The regu-

lations outline the criteria applied by the Department of State in deciding what

constitutes an international agreement, and provides that determinations of

such questions are made by the Legal Adviser of the Department of State, usu-

ally acting through the Assistant Legal Adviser for Treaty Affairs. The regula-

tions spell out procedures to be followed in consulting with the Secretary of

State or his designee before signing or otherwise concluding an international

agreement, and detail the procedures to be followed by the Department of State

in transmitting concluded agreements to the Congress.’’

U.S. General Accounting Office. Reporting of U.S. international agreements by exec-

utive agencies has improved; report to the Congress by the Comptroller General

of the United States. Washington, G.A.O., 1978. 53 p.

‘‘ID–78–57, Oct. 31, 1978’’ ‘‘The Case-Zablocki Act requires the Secretary of

State to report international agreements concluded by all executive agencies to

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Congress within 60 days after they become effective ***. Federal agencies have

become more aware of their Act responsibilities, reporting requirements have

been clarified and controls have been improved since GAO’s 1976 report on this

subject.’’

———. U.S. agreements with the Republic of Korea, Department of State and De-

fense; report of the Comptroller General of the United States. Washington,

G.A.O., 1976. 25 p.

‘‘ID–76–20, Feb. 20, 1976’’ ‘‘* * * certain agencies have not been submitting to

the State Department or the Congress all agency-level agreements they have

concluded. Some agencies have apparently interpreted agreements which are

concluded by agency personnel or which are of a subordinate or implementing

character to be outside the reporting requirements of the Case Act. Congres-

sional and State Department clarification of the reporting requirements and im-

proved controls over the reporting of agreements are needed.’’

TERMINATION OF TREATIES

Adler, David Gray. The Framers and treaty termination: a matter of symmetry. Ari-

zona State law journal, v. 1981, no. 4, 1981: 891–923.

Article reviews the debates over the treaty-making power in the 1787 Con-

stitutional Convention and the state ratifying conventions, concluding that ‘‘the

Supreme Court’s failure in Goldwater v. Carter to uphold the right of the Sen-

ate to a voice in the termination of the [Taiwan-U.S.] Mutual Defense Treaty,

is a repudiation of the Framers’ concerns, and the crucial compromises that had

to be reached in order for the states to agree to confederate.’’

Emerson, J. Terry. The legislative role in treaty abrogation. Journal of legislation,

v. 5, 1978: 46–80.

‘‘It is the premise of this article that Congress as a corporate entity, or at

least the Senate, should reaffirm its long-standing role in the treaty termination

process at least by declaring its understanding of the method which the Con-

stitution requires for the abrogation of treaties and calling upon the Executive

for prompt information of each Presidential action purporting to remove our na-

tion from a treaty obligation.’’

———. Treaty termination revisited. Woodrow Wilson journal of law, v. 4, summer

1982: 1–25.

‘‘The United States Supreme Court has indicated it will step aside should the

Executive Branch attempt the unilateral dismantlement of the post World War

II arrangement of security treaties that has been a protective umbrella over the

free world for nearly four decades. Neither the Court, nor the Constitution, is

a bar to presidential abrogation of formal treaties without any implied or active

participation of the legislative department. Congress must find and use its own

resources to thwart such action, if it is disposed to challenge presidential con-

duct. These are the lessons of Court’s decision in Goldwater v. Carter an-

nounced on December 13, 1979.’’

Goldwater, Barry M. Treaty termination is a shared power. Policy review, no. 8,

spring 1979: 115–124.

Senator Goldwater challenges ‘‘the validity of the President’s attempted ter-

mination of the treaty without any supporting legislative authority.’’

Goldwater v. Carter: symposium. Yale studies in world public order, v. 6, fall 1979:

1–235.

Contents.—Goldwater v. Carter: crisis in American constitutional arrange-

ments for the conduct of international relations, by C. Oliver.—The abuse of his-

tory: a refutation of the State Department analysis of alleged instances of inde-

pendent Presidential treaty termination, by J. Thomas.—Goldwater v. Carter:

the constitutional allocation of power in treaty termination, by E. Gaffney, Jr.—

The constitutional power to terminate treaties: who, when, and why, by A.

Swan.

Guttenborg, David A. Treaty termination and the separation of powers: the constitu-

tional controversy continues in Goldwater v. Carter, 100 S. Ct. 533 (1979)

(Mem.) Denver journal of international law and policy, v. 9, summer 1980: 239–

260.

‘‘The United States Supreme Court recently rejected the contention of a num-

ber of Members of Congress that President Carter improperly terminated the

Mutual Defense Treaty of 1954 with the Republic of China (Taiwan). This Case

Note analyzes the history, constitutional interpretations, and legal theories on

which the Supreme Court’s decision was based and discusses its effect on cur-

rent and future treaties. The author concludes that because the termination ac-

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companied the derecognition of the Republic of China, its precedential effect is

diminished.’’

Henkin, Louis. Litigating the President’s power to terminate treaties. American

journal of international law, v. 73, Oct. 1979: 647–654.

Louis Henkin discusses the obstacles facing Members of Congress who seek

to litigate Presidential power in foreign affairs. He examines arguments sup-

porting and opposing the contention that the President has the power to termi-

nate treaties.

Henkin suggests, ‘‘As a general proposition, there may be serious, if hypo-

thetical, reason for concern that a President might unilaterally pull us out of,

say, NATO or SALT ***. There, as perhaps elsewhere, it is plausible to urge

that the President should not act to terminate an important treaty without at

least meaningful consultation with Congress, congressional committees, con-

gressional leaders ***.

‘‘A different constitutional issue is whether the Senate can require, as a condi-

tion of its consent to a particular treaty, a presidential undertaking to termi-

nate that treaty only in accordance with prescribed procedure.’’

Lawson, Karin Lee. The constitutional twilight zone of treaty termination: Gold-

water v. Carter. Virginia journal of international law, v. 20, fall 1979: 147–169.

‘‘Goldwater v. Carter raised an issue never before litigated in U.S. courts: does

the U.S. Constitution, because of its silence with regard to the termination proc-

ess, implicitly give that power to the President? *** The Supreme Court’s order

to vacate the court of appeals’ opinion and dismiss the complaint solved the

question of termination of the Mutual Defense Treaty, but left unanswered the

presidential power issue.’’

Martin, Serge G. The President’s power to terminate treaties: the unanswered ques-

tion of Goldwater v. Carter. Journal of international law and economics, v. 14,

no. 2, 1980: 301–319.

‘‘This note examines the constitutionality of presidential actions effecting the

termination of treaties in the absence of any prior congressional consent ***.

Prior to the recent case of Goldwater v. Carter, this issue had never been di-

rectly presented to any court.’’

Murray, Nancy J. Treaty termination by the President without Senate or congres-

sional approval: the case of the Taiwan treaty. Southwestern law journal, v. 33,

June 1979: 729–761.

‘‘This comment discusses the nature of treaties, the treaty-making process,

and the history of treaty-termination practices. Special emphasis is given to

issues that arise in Goldwater v. Carter, including who has standing to chal-

lenge the President’s independent termination of a treaty and, more impor-

tantly, whether such a challenge presents a justifiable controversy.’’

The Question of Presidential power to terminate treaties. Congressional digest, v.

58, June–July 1979: 161–192.

Contents.—The question of Presidential power to terminate treaties.—The

foreword.—Evolution of the mutual security treaties.—Recent action in the Con-

gress.—The Taiwan Treaty lawsuit: Senator Goldwater.—The Taiwan Treaty

lawsuit: President Carter.—Should the Byrd proposal concerning the termi-

nation of mutual defense treaties be adopted?

Resolving treaty termination disputes. University of Pennsylvania law review, v.

129, May 1981: 1189–1229.

‘‘This comment has addressed the question whether the termination of a trea-

ty requires legislative participation, or, rather, only executive action. Observing

that the United States is party to a wide variety of treaties, it suggests that

different treaty terminations will implicate different congressional and presi-

dential interests in controlling the termination decision. Depending on the in-

terest implicated, unilateral presidential treaty termination will be permissible

in some cases, while in others, legislative participation will be required. A bal-

ancing test, looking to the various governmental interests at stake in treaty ter-

minations, was proposed for determining the appropriate manner of making a

particular treaty termination decision. The Comment concluded by arguing that,

whatever test may be adopted, an established procedure for deciding who is to

participate in treaty terminations would be desirable.’’

Rubin, Alfred P. Constitutional confusion: treaty denunciation. Fletcher forum, v. 4,

winter 1980: 88–93.

Examines some of Judge Gasch’s reasoning ‘‘in the case of Senator Barry

Goldwater, et al. v. James Earl Carter, et al., that President Carter’s notice of

termination of the 1954 Mutual Defense Treaty Between the United States and

the Republic of China must receive the approval of two-thirds of the United

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States Senate or a majority of both houses of Congress for that notice to be ef-

fective.’’

Scheffer, David J. The law of treaty termination as applied to the United States

derecognition of the Republic of China. Harvard international law, v. 19, fall

1978: 931–1009.

‘‘The first part of this Comment reviews, in their legal context, the recent

events which have culminated in normalization of relations between the United

States and the PRC ***. The second part of this Comment examines the weak-

nesses of the ‘lapse’ theory in light of the recent events discrediting its rel-

evance ***. The third part analyzes, in the context of normalization, the more

general issue of how treaties should be abrogated by the United States govern-

ment.’’

U.S. Congress. Senate. Committee on Foreign Relations. Termination of treaties: the

constitutional allocation of power. Washington, U.S. U.S. Government Printing

Office, 1979. 423 p.

At head of title: 95th Congress, 2d Session. Committee Print.

This compilation of materials on the termination of treaties includes State

Department lists of withdrawals from bilateral and multilateral treaties as well

as academic publication, articles from the press, and executive and congres-

sional publications.

———. Treaty termination. Hearings, 96th Cong., 1st Sess., Apr. 9–11, 1979, on S.

Res. 15, Resolution concerning mutual defense treaties. Washington, U.S. Gov-

ernment Printing Office, 1979. 589 p.

The committee considers Senate Resolution 15: ‘‘Resolved, that it is the sense

of the Senate that approval of the United States Senate is required to terminate

any mutual defense treaty between the United States and another nation.’’ The

committee also reviews ‘‘the role of the Senate, in approving treaties—specifi-

cally, which agreements require Senate approval, how the Senate’s advice func-

tion is most properly performed, and whether the Senate’s internal procedures

for consenting to the ratification of treaties should be modernized.’’

———. Treaty termination resolution; report together with additional views on S.

Res. 15. Washington, U.S. Government Printing Office, 1979. 47 p. (96th Cong.,

1st Sess., Senate. Report no. 96–119)

This report includes a summary of Senate action since 1969 regarding the

treaty power. The committee proposes a substitute resolution as an amendment

to the original version of Senate Resolution 15. ‘‘The substitute resolution pre-

sents general guidelines for the termination of any treaty to which the United

States is a party.

‘‘It also sets forth two methods by which the Senate or the Congress as a

whole can specify procedures for the termination of treaties on a case-by-case

basis: either 1) by including a condition in the resolution of consent to ratifica-

tion of a particular treaty, or 2) by enacting a joint resolution concerning a par-

ticular treaty.’’

In its discussion of the resolution, the committee considers the Administra-

tion’s position, relevant Supreme Court decisions, and precedents for specifying

termination procedures. Additional views of Senator Claiborne Pell and Senator

Jesse Helmes, opposing the action taken by the committee, are included.

Watson, Geoffrey R. The death of treaty. Ohio State law journal, v. 55, 1994: 781–

853.

‘‘Article explores the decline and fall of Treaty. Part I of the Article traces the

origins and development of treaties. It argues that Treaty reached its political

and doctrinal zenith in the nineteenth century ***. Part II explores the subse-

quent doctrinal disintegration of Treaty.’’

D. G

UIDES

GUIDES TO RESOURCES ON TREATIES

This section is designed to assist the reader in locating information about treaties

and international agreements.

List of treaty collections—Liste de recueils de traites—Lista de colecciones de

tratados. United Nations, Office of Legal Affairs, Codification Division.

Moorestown, N.J., Symposia Press; Holmes Beach, Fla., Exclusive distribution

by W. W. Gaunt, 1981. 174 p. Reprint. Originally published: New York, United

Nations, 1956 (United Nations. [Document] ST/LEG/5)

The list of treaty collections is ‘‘limited in principle, to collections published

in and after the last two decades of the 18th century.’’ The first part identifies

general collections, including indices, chronologies, bibliographies, and hand-

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books. The second lists collections by subject; the third, by country. Titles are

given in their original language. Accompanying comments are in English, except

for collections which are predominantly in French; then the commentary is in

French.

Kavass, Igor I. Hood, Howard A. Computerized legal databases: an international

survey. International journal of legal information, v. 11, no. 3 & 4, 1983: 115–

129.

Kramer, Mary. How to find U.S. treaties in the Library of Congress. Washington,

Library of Congress, General Reading Rooms Division, 1981. 11 p.

‘‘This brief guide to U.S. treaty research consists of a selected and annotated

bibliography of important treaty collections and indexes.’’ It also includes a glos-

sary.

Parry, Clive. Where to look for your treaties. International journal of law libraries,

v. 8, 1980: 8–18.

Pilschke, Elmer. Treaties and agreements. In his U.S. foreign relations: a guide to

information sources. Detroit, Gale Research,  1980. pp. 571–587. (American

government and history information guide series, v. 6)

‘‘This section contains the principal documents and compilations relevant to

the treaties and agreements published by Congress and the Department of

State, general multinational treaty series (including those of the League of Na-

tions, and the United Nations) together with related indexes of research signifi-

cance, and selected unofficial compilations of and commentaries on treaties and

agreements, including several functional treaty lists.’’

Renoux, Yvette. Glossary of international treaties. In French, English, Spanish,

Italian, Dutch, German and Russian. Compiled and arranged with the collabo-

ration of Janine Yates. Amsterdam, New York, Elsevier Publishing Co., 1970.

212 p. (Glossaria interprtum, no. 14)

Research sources on international law: bibliographic notes. Journal of international

law and economics, v. 13, no. 3, 1979: 717–746. Part I—dictionaries and encyclo-

pedias.

‘‘This column presents nearly one hundred current and historical dictionaries

and encyclopedias to which the practitioner or student can turn for quick ref-

erence to the definitions, origins, and usage of international legal terms and

concepts.’’ Part II—Treaties. ‘‘The portion of this column devoted to researching

treaties is organized as follows.—Sources of information on treaty research.—

Indexes to treaties and collections.—Non-collection treaty sources.—Collections

of treaties.—Status of treaties.—United States treaty system.’’

Sprudzs, Adolf. Treaty sources in legal and political research; tools, techniques, and

problems, the conventional and the new. Tucson, University of Arizona Press

[1971] 63 p. (The Institute of Government Research. International studies, no.

Sprudzs surveys the practice of selected states and the United Nations in

making treaty information a matter of public record. He reviews guides and in-

dexes to treaty collections, charts indicating the status of specific treaties, and

other sources. Sprudzs also discusses computerized data bases, including the

United Nations Treaty Series Project, and the U.S. Department of Defense

International Agreements Project, part of the U.S. Air Force Project FLITE.

Zwirn, Jerrold. United States treaties. In his Congressional publications: a research

guide to legislation, budgets, and treaties. Littleton, CO, Libraries Unlimited,

1983. pp. 150–165.

‘‘This chapter presents a detailed description of the treatymaking process as

reflected in the roles of the President and the Senate. Though treaties are a

form of domestic law, their international aspect affords greater latitude for offi-

cial discretion than does the legislative process ***. The absence of prescribed

time limits and unsettled standing of governmental precedents significantly af-

fect treaty publications. The impact of these factors is noted at various points

throughout the discussion and is more thoroughly treated in reference to

sources that can be consulted to determine the status of treaties.’’

COMPILATIONS OF TREATIES

AND INDEXES INTERNATIONAL IN SCOPE

Since the emphasis of this bibliography is on U.S. treaties and treatymaking, only

a few selected treaty compilations and indices which are international in scope are

listed in this section. For discussions on researching foreign treaties, please see the

guides listed in Section A, above, especially ‘‘Research Sources on International

Law: Bibliographic Notes’’ in the Journal of International Law and Economics, v.

13, no. 3, 1979, pp. 717–746.

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International Legal Materials, published bimonthly by the American Society of

International Law, provides current information on treaties and includes the texts

of treaties and other international documents before they may be available in com-

pilations.

Complex current issues may require the expertise of international legal special-

ists, such as those in the Office of the Assistant Legal Adviser for Treaty Affairs,

U.S. Department of State, or the international legal specialists on the staff of the

Library of Congress Law Library.

In this section of the bibliography, independent works are listed alphabetically by

title or by the corporate body issuing them, if the name of the corporate body re-

flects the scope of the treaty activity covered. The citations for indices or other sup-

plemental works immediately follow, preceded by a series of dashes to indicate their

relationship with the independent works under which they are listed. For example,

the Index Guide to Treaties, prepared by Irwin, immediately follows the Consoli-

dated Treaty Series, on which it is based. The development of online information

retrieval systems is dynamic, so a librarian or information broker should be con-

sulted for current information on database access to specific treaty issues.

The Consolidated treaty series. Edited and annotated by Clive Parry. Dobbs Ferry,

N.Y., Oceana Publications, 1981, v. 1–231.

‘‘The present series *** is proposed ** * to make a beginning with the year

1648 *** and, for the period between that year and the date of commencement

of the League series (approximately 1918–20), to reproduce such prints of trea-

ties in their original languages as can be found in whatsoever collection along

with such translations into English or French as again *** can be found.’’ The

treaties are arranged chronologically; the title of each volume specifies the year

it covers. Each entry indicates parties to the treaty, when the treaty came into

force, whether it is still in effect, and if applicable, how it has been superseded

or terminated.

———. Index-guide to treaties: based on the Consolidated treaty series, edited and

annotated by Clive Parry, LL.D., and all other series therein utilised. Dobbs

Ferry, N.Y., Oceana Publications, 1979+

Contents: [pt. 1] v. 1. Irwin, P. General chronological list 1648–1809 i.e.,

1648–1808]—v. 2. Hill, Brian H.W. General chronological list 1648–1809 supple-

ment, 1809–1851.—v. 3. Hill, Brian H.W. General chronological list, 1852–

1885.—v. 4. Hill, Brian H.W. General chronological list, 1886–1903.—v. 5. Hill,

Brian H.W. General chronological list, 1904–1919.—[pt. 2] Meyer, Michael A.

Special chronological list, 1648–1920 (2 v.).—[pt. 3] Hill, Brian H.W. Party

index. v. 1, Afghanistan-Finland—v. 2, France-German states.—v. 3, Great Brit-

ain-Italy.—v. 4, Japan-South Rhodesia.—v. 5, Spain-Zanzibar.

Index to multilateral treaties; a chronological list of multi-party international agree-

ments from the sixteenth century through 1963, with citations to their text.

Edited by Vaclav Mostecky and Francis R. Doyle. Cambridge, Mass., distributed

by Oceana Publications, for the Harvard University Law School Library, 1965,

and supplements, 1966–1968.

This work lists multilateral international agreements from 1596 to 1963, indi-

cating date and, where important, place of signature; language of treaty; and

signatories, if there were five or fewer. Citations are provided to official and un-

official sources for the complete texts of treaties. Treaties are arranged chrono-

logically with indices by subject and region.

International organization and integration: annotated basic documents and descrip-

tive directory of international organizations and arrangements. 2d, completely

rev. ed. The Hague, Boston, Martinus Nijhoff Publishers; Hingam, Mass.,

Kluwer Boston, distributors for the U.S. and Canada, 1981+ v. 1A, 2A.

Contents (Incomplete).—v. 1A. The United Nations organization—v. 2 A. Eu-

ropean Communities.

Key treaties for the great powers, 1814–1914. Selected and edited by Michael Hurst.

New York, St. Martin’s Press [1972] 2 v. (948 p.)

Contents.—v. 1. 1814–1870.—v. 2. 1871–1914.

The Major international treaties, 1914–1973; a history and guide with texts. [By]

J.A.S. Grenville. New York, Stein and Day [1974] 575 p.

Provides a history and analysis of major treaties and agreements, and in-

cludes the texts of the most important.

Treaties and alliances of the world. Compiled and written by Henry W. Degenhardt;

general editor, Alan J. Day. 3d ed. Harlow, Essex, Longman; Detroit, Distrib-

uted by Gale Research, 1981. 409 p.

Provides brief descriptions of treaties and international agreements, indicat-

ing significant dates, signatories, and major provisions. Also describes organiza-

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337

tions established by treaties or international agreements. Length and depth of

coverage varies with the topic.

Contents.—Early international agreements and their later expansion.—World

War II: treaties and agreements on territorial changes, frontiers and other mat-

ters arising out of the War.—the United Nations.—Nuclear and conventional

disarmament.—Agreements on scientific, space, and environmental coopera-

tion.—International economic co-operation.—Commodity and raw material pro-

ducers’ organizations and agreements.—West European groupings, treaties and

agreements.—Organization for Economic Co-operation and Development

(OECD).—North Atlantic Treaty Organization (NATO).—The Communist

World.—East-West treaties of 1970–1980.—The Commonwealth.—The French

Community (‘‘Communaute’’) and other Francophone co-operation.—The Ameri-

cas.—The Middle East and Islamic states.—Africa.—South-East Asia and the

Pacific Area.—The ‘‘Third World’’: attempts at achieving cohesion.

United Nations. Office of Legal Affairs. United Nations treaty series: treaties and

international agreements registered or filed and recorded with the Secretariat

of the United Nations. New York, United Nations, 1946+

Treaties appear chronologically by date of registration with the Secretariat.

Each volume includes a list of notifications of ratifications, accessions, succes-

sions, and extensions of published treaties.

Cumulative indices were originally published for each 100 volumes; they are

now published for each fifty. Chronological indices list treaties in order of their

date of signature. Other indices list them by country and by subject, using

broad subject headings.

———. Cumulative list and index of treaties and international agreements reg-

istered or filed and recorded with the Secretariat of the United Nations, Decem-

ber 1969–December 1974. By Joseph T. Vambery and Rose V. Vambery. Dobbs

Ferry, N.Y., Oceana Publications, 1977. 2 v.

Provides and index to treaties and international agreements published in the

United Nations Treaty Series from December 1969 to 1975.

———. Multilateral treaties in respect of which the Secretary-General performs de-

positary functions; list of signatures, ratifications, accessions, etc. as of 31 De-

cember 1970. New York, United Nations, 1971. 439 p. (United Nations. Docu-

ment ST/LEG/SER.D/4)

This annual publication list conventions as well as treaties chronologically by

date of signature. Information on each treaty includes date of entry into force,

list of signatories with date of receipt by the United Nations of their instru-

ments of accession, citation to the text in the United Nations Treaty Series, and

the text of accompanying declarations or reservations.

———. Statement of treaties and international agreements registered or filed and

recorded with the Secretariat of the United Nations. New York, United Nations,

1974+ (United Nations. [Document] ST/LEG/ser.A.)

This monthly publication supplements the annual volumes of the Multilateral

Treaties List and contains information on treaty matters. Both this publication

and the list are dependent on signatory states for information and thus may be

incomplete. Publication is running at least 1 year behind.

———. Status of multilateral conventions of which the Secretary-General acts as de-

pository. Revised edition. New York, United Nations, 1959+ 1 v. (looseleaf)

(United Nations. [Document] ST/LEG/3, rev. 1)

World treaty index. By Peter H. Rohn. 2d ed. Santa Barbara, Calif., ABC-Clio Infor-

mation Services,  1983– 1984. 5 v.

This index, generated from a data base on machine-readable tape, provides

access to the League of Nations Treaty Series, the United Nations Treaty Se-

ries, and other treaties from more than 40 national treaty collections. For each

treaty, in includes date of signature, list of parties, and citations to sources for

the full text.

Contents.—v. 1. Reference volume.—v. 2. Main entry section, pt 1, 1900–

1959.—v. 3. Main entry section, pt. 2, 1960–1980.—v. 4. Party index.—v. 5. Key-

word index.

———. Treaty profiles. Santa Barbara, Calif., Clio Books,  1976. 256 p.

This quantitative analysis of the bilateral treatymaking behavior of countries

and international organizations, indicating leading treaty partners, registration

frequency, and other information, is derived from a subset of the database used

to generate the World Treaty Indexes, listed above.

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TREATIES AND THE TREATYMAKING PROCESS

This section is divided into four subsections: a) Sources for information on treaties

throughout the treatymaking process; b) Official treaty series; c) Indices and retro-

spective compilations; and d) Sources primarily concerned with the status of treaties

(although they may supply additional information and although other sources may

include information on treaty status, as indicated in annotations.) Table A1–1 is

provided to facilitate identification of sources providing information and various

stages of the treatymaking process. Sources listed in the table are described in

greater detail in the relevant subsections. Online database systems which can be

used to access sources are indicated in the ‘‘notes’’ column in the table and in anno-

tations in the text. Development of online systems is dynamic, so a librarian or in-

formation broker should be consulted for complete, current information on database

access for specific treaty issues.

Although the purpose of this section is to identify prominent resources on U.S.

treaties through the current U.S. treatymaking process, it is by no means definitive.

Please consult the guides to resources on treaties in section A, above, for discussions

of the complexities of locating information on U.S. treaties and treatymaking. A

number of the sources complement each other. For example, in Congressional Publi-

cations: a Research Guide to Legislation, Budgets and Treaties, Jerrold Zwirn dis-

cusses U.S. treaty publications by reviewing how they are generated during the cur-

rent treatymaking process. In U.S. Foreign Relations: A Guide to Information

Sources, Elmer Plishke organized the documents and compilations by issuing agen-

cy. He includes information on sources useful for historical research on U.S.

treatymaking. Mary Kramer provides guidance on doing research in the Library of

Congress on current and historical U.S. treaties in How to find U.S. Treaties in the

Library of Congress.

For ongoing, current information on treaty developments, see the Department of

State Dispatch and the American Journal of International Law, published by the

American Society of International Law. Specific, complex questions may require the

expertise of legal specialists, such as those in the U.S. State Department Office of

the Assistant Legal Adviser for Treaty Affairs, or legal specialists in the Library of

Congress Law Library or Congressional Research Service.

a. Sources for treaty information throughout the treatymaking process

CIS/index

CIS/index to publications of the United States Congress. Washington, Congressional

Information Service, 1970+

CIS indexes and abstracts congressional publications other than the Congres-

sional Record. Issues appear monthly, with quarterly, annual and multiyear cu-

mulations. Abstracts are arranged by committee and then by form of publica-

tion. The section on the Senate Foreign Relations Committee includes sub-

sections for Senate Executive Reports and Senate Treaty Documents. Subject

indexes provide entries under the term ‘‘Treaties and conventions,’’ as well as

under topical headings. The Legislative Calendar for the Senate Foreign Rela-

tions Committee can be located under the index term ‘‘Congressional Committee

Calendar.’’ Abstracts provide bibliographic information, which can be used to lo-

cate the publication in a library or to obtain it from the issuing source. Alter-

natively, the index may be used in conjunction with the CIS microfiche collec-

tion, which includes the texts of most items indexed. CIS/index is available on-

line through DIALOG.

Congressional Index

Congressional index. Chicago, Commerce Clearing House, 1937+

This weekly loose-leaf service provides information on the contents and status

of bills and resolutions pending in Congress. The ‘‘Treaty Section’’ is especially

useful for determining recent developments regarding the status of treaties

pending approval. Treaties not yet approved are arranged chronologically by the

session of Congress in which they were introduced.

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Table A1–1.—Publications Providing Information on U.S. Treaties Throughout the Treatymaking Process

Stage/Form/Information Sources Notes

Initiation

Statements by Presi-

dent or Secretary of

State.

Weekly Compilation of Presidential Documents

State Department Dispatch .............................

Available on NEXIS

Foreign Policy Bulletin ..................................... Privately published

Negotiation

Course of proceedings Weekly Compilation of Presidential Documents

State Department Dispatch .............................

Foreign Policy Bulletin .....................................

Available on NEXIS

First printing of treaty

with outline of his-

tory.

Department of State Dispatch .........................

Department of State Press Releases.

Transmittal to Senate

Notification of receipt

by Senate, Presi-

dent’s message.

Congressional Record ....................................... Available online in many

places, including DIA-

LOG, Legislate, NEXIS,

WESTLAW, and CQ

Treaty text and trans-

mittal documentation.

Executive Journal of the Senate ......................

Senate Treaty Document, 98th Congress on;

formerly, Senate Executive Document.

CIS/index; GPO Monthly

Catalog

Citation for Senate Ex-

ecutive or Treaty

Document.

Executive Journal of the Senate ......................

Weekly Compilation of Presidential Documents

Available on NEXIS

CIS/Index .......................................................... Available on DIALOG

Foreign Relations Committee

Action

Legislative history ........ Senate Foreign Relations Committee calendar Indexed by CIS/index

Senate Executive Reports ................................. Indexed by CIS/index

Legislative Activity Reports .............................. Issued at end of each Con-

gress

Citation for executive

reports.

Daily Digest, in Congressional Record ............ DIALOG

Executive Journal of the Senate ......................

CIS/Index.

Citation to printed

hearings and com-

mittee reports.

Monthly Catalog ...............................................

CIS/index ..........................................................

DIALOG

Senate action

Amendments, reserva-

tions, understand-

ings, resolutions of

ratification.

Congressional Record .......................................

Executive Journal of the Senate ......................

DIALOG, NEXIS

List of treaties pending Congressional Index .........................................

Executive Journal of the Senate.

Legislative history ...... Senate Foreign Relations Committee calendar CIS/index

Withdrawal

Notice regarding .......... Congressional Record and its Daily Digest .....

Executive Journal of the Senate ......................

Index: DIALOG

Weekly Compilation of Presidential Documents Available on NEXIS

Renegotiation

Notice regarding .......... Weekly Compilation of Presidential Documents

U.S. Department of State Press Releases .......

Available on NEXIS

Ratification Department of State Dispatch .........................

Foreign Policy Bulletin.

Weekly Compilation of Presidential Documents Available on NEXIS

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Table A1–1.—Publications Providing Information on U.S. Treaties Throughout the Treatymaking

Process

—Continued

Stage/Form/Information Sources Notes

Exchange or deposit of ratifi-

cation

Department of State Dispatch .........................

Foreign Policy Bulletin.

Proclamation by President

Notice regarding .......... Department of State Bulletin ........................... May include Senate condi-

tions and qualifications

Proclamation text;

treaty text, related

documents, and ci-

tation to UST.

Weekly Compilation of Presidential Documents May include Senate condi-

tions and qualifications

Statutes at Large ............................................. May include Senate condi-

tions and qualifications

Modification, termination, re-

newal

Shepherd’s United States Citations—Statutes

Edition.

Online on LEXIS and

WESTLAW

Implementation

Executive branch action Department of State Bulletin.

Weekly Compilation of Presidential Documents Available on NEXIS FEDREG;

text on NEXIS

Federal Register ............................................... Available on DIALOG,

WESTLAW, NEXIS, Legis-

late

Legislative activity ..... Senate Foreign Relations Committee Legisla-

tive Activities Report.

In Serial Set indexed by

Monthly Catalog. CIS/

index

Entry into force

Publication of treaty,

once in force.

Treaties and Other International Acts Series

(TIAS).

Unbound pamphlet; listed

in Monthly Catalog; Cur-

rent Treaty Index

Before 1946 ................ Treaty Series ..................................................... Included international

agreements until 1929

Executive Agreement Series (1929–1946).

Annual cumulations

1950–1951 ................... United States Treaties and Other International

Agreements (UST).

Statutes at Large .............................................

Indexed by UST cumulative

index

Retrospective cumulations

and indexes

1776–1949 ................... United States Treaties and Other International

Agreements Cumulative Index.

Based on Bevans, Malloy,

Miller, Statutes at Large,

and other sources

Treaties and Other International Agreements

between the United States of America,

1776–1949 (Bevans).

13 v. Multilateral listed

chronologically; bilateral,

by country

1776–1937 ................... Treaties, Conventions, International Acts, Pro-

tocols, and Agreements between the United

States and Other Powers, 1920–1938

(Malloy).

v. 1–2 1776–1909

v. 3 1920–1923

v. 4 1923–1937

1776–1863 ................... Treaties and Other International Acts of the

United States of America (Miller).

Chronological

Status

Treaties in force ........... Treaties in force 1956 .....................................

Guide to U.S. Treaties in Force, 1982–.

Unperfected .................. Unperfected Treaties of the United States of

America.

v. 1 covers 1776–1855; 5

volumes anticipated

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Congressional Record

U.S. Congress. Congressional record: proceedings and debates of the Congress.

Washington, U.S. Government Printing Office. 1873+ Issued in daily, biweekly

(green bound), and permanent (red bound) editions.

The text of the daily edition is revised and rearranged in the permanent edi-

tion. A ‘‘Daily Digest’’ section has been included since 1947.

Indexes to the Congressional Record are issued biweekly and for each session.

Discussions and actions regarding treaties are listed under the subject heading

‘‘treaties,’’ and may be listed under the subjects of specific treaties, as well.

The Congressional Record was preceded by the Debates and Proceedings in

the Congress of the United States, 1st–18th Cong., 1st Sess.; the Register of De-

bates in Congress, 18th Cong., 2d Sess.–25th Cong., 1st Sess.; and the Congres-

sional Globe, 23d–42d Congress.

Executive Journal of the Senate

U.S. Congress. Senate. Executive journal of the Senate. Journal of the Executive

proceedings of the Senate of the United States. Washington, U.S. Government

Printing Office, 1828+

This publication provides accounts of executive sessions of the Senate, includ-

ing actions on treaties, and contains the resolutions of ratification. When execu-

tive sessions are open, proceedings and debates appear in the Congressional

Record.

Senate executive reports

A report by the Senate Committee on Foreign Relations on each treaty is issued

as a Senate executive report. Each report is assigned a numeric designation. The

reports are indexed in CIS/index and the Monthly Catalog. Both CIS and the

Monthly Catalog are available online through DIALOG.

Senate Foreign Relations Committee calendar

U.S. Congress. Senate. Committee on Foreign Relations. Legislative calendar.

[Washington, D.C.] U.S. Government Printing Office.

Provides information on Senate action regarding treaties; can be used to trace

the legislative history of treaties. Indexed by CRS/index, which is available on-

line through DIALOG.

Senate treaty documents

A Senate treaty document provides the text of the treaty as transmitted to the

Senate from the executive branch, with letters of transmittal from the President and

Secretary of State and accompanying background documentation. Beginning with

the 97th Congress, treaties have been issued in the Treaty Document Series. Each

treaty is identified by the number of the Congress and an acquisition number, based

on the number of treaties previously transmitted during the Congress. For example,

Treaty Document 98–4 would be the fourth treaty transmitted to the 98th Congress.

Prior to the 97th Congress, treaties were issued in the Senate Executive Documents

Series. Each document was given an alphabetical designation and was cited by that

letter and by the number of the Congress and the session in which it was transmit-

ted to the Senate. Most Senate treaty and executive documents are identified in the

Monthly Catalog and CIS/index (both of which are available via the U.S. Govern-

ment Printing Office Web site: http://orders.access.gpo.gov/su—docs/sale/index.html).

Department of State Dispatch

U.S. Department of State. Department of State dispatch. [Washington] Office of

Communication, Bureau of Public Affairs; for sale by the Superintendent of Doc-

uments, U.S. Government Printing Office, 1990+

This weekly journal provides a compilation of major speeches, congressional

testimony, policy statements, fact sheets and other foreign policy information.

A periodic list of treaty actions is included. Dispatch began publication in Janu-

ary 1990.

Dispatch is indexed in the Index to U.S. Government Periodicals and is part

of the NEXIS service.

Department of State Bulletin

U.S. Department of State. Department of State bulletin. [Washington] Office of Pub-

lic Communication, Bureau of Public Affairs; for sale by the Superintendent of

Documents, U.S. Government Printing Office, 1939–1989.

This, ‘‘the official monthly record of United states foreign policy,’’ contained

a section on treaties which provided information on the status of treaties, in-

cluding notification of U.S. and foreign ratification of treaties to which the

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342

United States is a party. Recent press releases, which may contain the texts of

treaties or information on executive branch action at various stages of the

treatymaking process, were also listed in the Department of State Bulletin.

This publication was issued weekly through December 27, 1977, and monthly

from January 1978, until it ceased publication in December 1989.

An index was issued periodically, and the Department of State Bulletin was

also indexed by the Index to U.S. Government Periodicals, and more selectively

by Public Affairs Information Service, and the Readers’ Guide to Periodical Lit-

erature.

Foreign Policy Bulletin

The Foreign Policy Bulletin began publication in July 1990. It is a privately pub-

lished journal, edited and published by Paul E. Auerswald, former editor of the

State Department Bulletin. The Foreign Policy Bulletin maintains a format similar

to that of the now defunct State Department Bulletin. Each issue includes a section

on treaties. Publication information may be obtained from the Foreign Policy Bul-

letin, 4802 Butterworth Place, N.W., Washington, D.C. 20016.

Department of State press releases

Department of State press releases may contain information on executive branch

action regarding treaties during the treatymaking process. The text of a treaty may

appear for the first time in a Department of State press release, usually on the date

of signing. Press releases were listed in the Department of State bulletin.

Federal Register

Federal register. [Washington, Office of the Federal Register, National Archives and

Records Service, General Services Administration; Superintendent of Docu-

ments, U.S. Government Printing Office, distributor] 1936+

The Federal Register may include information on executive branch action re-

garding the implementation of treaties. It is issued daily, except Saturday, Sun-

day, and official Federal holidays.

Monthly Catalog

Monthly catalog of United States Government publications. Washington, U.S. Gov-

ernment Printing Office, 1895+

Senate executive documents and reports are listed under Senate; new treaties

are listed by their number in the Treaties and Other International Acts Series

under the State Department. The Monthly Catalog is available via the U.S.

Government Printing Office Web site: http://orders.access.gpo.gov/su—docs/sale/

index.html.

Shepard’s United States Citations—Statutes Edition

Shepard’s United States citations: statutes. 6th edition. Colorado Springs, Shepard’s

Citations, 1968+

‘‘A compilation of citations to United States Constitution, United States stat-

utes at large, United States treaties and other international agreements, ***

[and other sources]. The citations appear in: United States Supreme Court re-

ports; Supreme court reporter; Federal reporter; Federal supplement; ***

United States statutes at large; United States treaties and other international

agreements’’ and other sources.

Includes information on modifications of treaties by legislation or changes in

the treaties. Treaties through 1949 are listed by date of signing. Since 1950, a

special section has been included which lists treaties by their citations in the

Treaties and Other International Acts Series.

This service is kept up to date by periodically issued unbound cumulative

supplements which are superseded from time to time by bound cumulative sup-

plements. Since 1979, the supplements have been published by Shepard’s, Inc.

of Colorado Springs.

Statutes at Large

United States. Laws, statutes, etc. United States statutes at large, containing the

laws and concurrent resolutions Washington, D.C., U.S. Government Printing

Office, 1937+

Contains the texts of public and private laws, constitutional amendments,

concurrent resolutions, and proclamations, including Presidential proclamations

regarding treaties.

Through 1951, a portion of part 2 or part 3 of the Statutes at Large included

separate lists of treaties and international agreements with their texts. Volume

64, part 3, contains a cumulative list of all treaties and international agree-

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343

ments contained in volumes 1–64, arranged alphabetically by country and then

by topic. Since 1951, the texts of treaties and international agreements have

been published separately by the State Department in the United States Trea-

ties and Other International Acts Series, listed below in the section on Official

Treaty Sources.

Weekly Compilation of Presidential Documents

Weekly compilation of Presidential documents. Washington, Office of the Federal

tion; Superintendent of Documents, U.S. Government Printing Office, 1965+

Issued weekly, with quarterly, semiannual, and annual indexes. Contains

Presidential materials released by the White House, including statements, proc-

lamations, and executive orders. Available online through NEXIS.

b. Official treaty series

TIAS

U.S. Department of State. Treaties and other international acts series (TIAS).

Washington, for sale by the Superintendent of Documents, U.S. Government

Printing Office, 1946+

This series provides dissemination of the official versions of new treaties, al-

though there may be a considerable time lag between the date a treaty enters

into force and the date it is published in the TIAS. Each treaty or agreement

is published in pamphlet form in the official languages of the original instru-

ment. Dates of signature, ratification, proclamation, and implementation are

also included.

TIAS continues the Treaty Series and the Executive Agreement Series. Num-

bering begins with 1501, since the numbering for the Treaty Series (994) and

the Executive Agreement Series (506) totaled 1500.

———. Treaty series (TS). Washington, D.C., U.S. Government Printing Office,

[18—]–1946.

Included separately published pamphlets containing the official texts of U.S.

treaties and other international agreements until 1929; thereafter, included

only treaties. Numbering began in 1908, with number 489. For earlier periods,

up to number 376, the arrangement is alphabetical by country, then chrono-

logical. Multilateral agreements follow number 376. From number 390 on, the

sequence is chronological.

———. Executive agreement series (EAS). Washington, U.S. Government Printing

Office, 1929–1946.

Pamphlet series for the official texts of U.S. international agreements from

1929 to 1946. In 1946, treaties and executive agreements were again combined

in the Treaties and Other International Acts series.

UST

U.S. Treaties, etc. United States treaties and other international agreements. Wash-

ington, U.S. Dept of State, 1950+

Since 1950, this annual compilation of the Treaties and Other International

Acts Series (TIAS), cited above, has been the official publication for treaties and

other international agreements to which the United States is a party. Pre-

viously, the texts of treaties were included in the United States Statutes at

Large. Treaties and international agreements are arranged in the order in

which they were published in TIAS. Entries include the full text of the treaty

or agreement in each official language and a chronology. Each volume contains

indexes by subject and country, and a four volume cumulative index has been

issued, covering the years 1950–1970 (volumes 1–21).

c. Indexes and retrospective compilations

Entries in this section are chronological by the times period covered, with an

index to current treaties listed first. For coverage of treaties from 1776 to 1949, the

cumulative index is listed first, followed by the works on which it is based.

Current

Current treaty index. Compiled by Igor I. Kavass and Adolf Sprudzs. Buffalo, N.Y.,

W.S. Hein, 1982+

Provides a cumulative index to the United Stages slip treaties and agree-

ments, published in the Treaties and Other International Acts Series.

‘‘The information on current treaties and agreements is arranged numerically,

chronologically, by country, and by subject ***. The information in the Current

Treaty Index will of course eventually be incorporated in the UST Cumulative

Indexing Service as the treaties and agreements are included in the bound UST

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344

volumes.’’ A new edition of the Current Treaty Index will then be issued, listing

new treaties and agreements in slip form. ‘‘The editorial intention is to have

Current Treaty Index appear annually’’ or more frequently, if circumstances

permit.

‘‘The Current Treaty Index has many uses. Not only a quick reference for

treaties and agreements entered into by the United States *** during recent

years, it presents also an excellent birdseye view of recent commitments made

by the United States in different areas of international economics and foreign

relations (using the subject index) ***. Similarly, the chronological index [indi-

cates] the cyclical pattern of international agreements in different subject areas.

The close relationship between the United States and other countries may best

be seen through the country index.’’

1950+

UST cumulative index, 1950–1970: cumulative index to United States treaties and

other international agreements, 1950–1970: 1 UST–21UST, TIAS nos. 2010–

7034. Compiled by Igor I. Kavass and Adolf Sprudzs. Buffalo, N.Y., W.S. Hein,

1973. 4 v.

Contents.—v. 1. UST list of documents in numerical order of TIAS num-

bers.—v. 2. UST chronological index, 1950–1970.—v. 3. UST country index,

1950–1970.—v. 4. UST subject index, 1950–1970.

This index is kept up to date by annual looseleaf volumes, cumulated and re-

published every 5 years.

1776–1949

United States treaties and other international agreements cumulative index, 1776–

1949, as published in Statutes at Large, Malloy, Miller, Bevans, and other rel-

evant sources. By Igor I. Kavass and Mark A. Michael. Buffalo, N.Y., W.S. Hein,

1975. 4 v.

Volume 1 lists in numerical order the treaties and agreements published in

the Treaty Series, the Executive Agreement Series, and the Treaties and Other

International Acts Series. Volumes 2, 3, and 4 provide chronological, country,

and subject indexes, respectively.

1776–1949 (Bevans)

U.S. Treaties, etc. Treaties and other international agreements of the United States

of America, 1776–1949. Compiled under the direction of Charles I. Bevans.

[Washington, Department of State, for sale by the Superintendent of Docu-

ments, U.S. Government Printing Office, 1968–1976] 13 v. (Department of State

publications 8407, 8441, 8484, 8521, 8543, 8549, 8566, 8590, 8615, 8642, 8728,

8761, 8830)

The texts of treaties are provided in English only, with some commentary.

Volumes 1–4 contain multilateral treaties arranged chronologically; volumes 5–

12 contain bilateral treaties, arranged by country. volume 13 is the index.

Contents.—v. 1. Multilateral, 1776–1917.—v. 2. Multilateral, 1918–1930.—v.

3. Multilateral, 1931–1945.—v. 4. Multilateral, 1946–1949.—v. 5 Afghanistan—

Burma.—v. 6. Canada—Czechoslovakia.—v. 7. Denmark—France.—v. 8. Ger-

many—Iran.—v. 9. Iraq—Muscat.—v. 10. Nepal—Peru.—v. 11. Philippines—

United Arab Republic.—v. 12. United Kingdom—Zanzibar.—v. 13. General

index. This work, cited as Bevans, superseded the works by Malloy and Miller,

which are listed below.

1776–1931 (Malloy)

U.S. Treaties, etc. Treaties, conventions, international acts, protocols, and agree-

ments between the United States of America and other powers. Washington,

U.S. Government Printing Office, 1910–1938. 4 v.

Texts of the treaties and agreements are provided in English, with annota-

tions and index. Volumes 1 and 2 provide a single compilation, covering 1776–

1909. Volumes 3 and 4 are supplements, covering 1910–1923 and 1923–1937,

respectively. Bilateral treaties and agreements are arranged alphabetically by

country, followed by multilateral treaties and agreements, which are arranged

chronologically. Volume 4 includes a list of treaties by date of proclamation,

with relevant citations to Statutes at Large. This work is sometimes cited as

Malloy, after the compiler of the first two volumes.

1776–1863 (Miller)

U.S. Treaties, etc. Treaties and other international acts of the United States of

America. Edited by Hunter Miller. Washington, U.S. Government Printing Of-

fice, 1931–1948. 8 v. in 7.

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345

Volume 1 provides the plan of the compilation; volumes 2–8 provide the texts

of treaties and agreements in the official languages for the period 1776–1863,

with commentary. Arrangement is chronological. Includes legislative history

and commentary.

d. Status of treaties

Treaties in Force

U.S. Department of State. Office of the Legal Adviser. Treaties in force: a list of

treaties and other international agreements of the United States in force. Wash-

ington, for sale by the Superintendent of Documents [as of the 1st of the year],

U.S. Government Printing Office, 1956 +

This annual publication lists all U.S. treaties and international agreements

in force as of the beginning of the year. Bilateral agreements are arranged by

country and then subject. Multilateral agreements are listed alphabetically by

subject. Parties to each agreement or treaty are indicated. References are pro-

vided to the texts of treaties in Statutes at Large, UST, TIAS, Bevans, and

other U.S. official treaty collections.

———. A Guide to the United States treaties in force. By Igor K. Kavass and Adolf

Sprudzs. Buffalo, N.Y., W.S. Hein, 1982+

Unperfected Treaties

Unperfected treaties of the United States of America, 1776–1976. Edited and anno-

tated by Christian L. Wiktor. Dobbs Ferry, N.Y., Oceana Publications, 1976–

1994. 9 v.

Provides texts and annotations on treaties concluded by the United States

which did not go into force. Volume 1 covers the years 1776–1855.

Additional information

The Consolidated treaty series. Edited and annotated by Clive Parry. Dobbs Ferry,

N.Y., [Oceana Publications, 1969] (1981) v. 1–231

‘‘The present series *** is proposed ** * to make a beginning with the year

1648 *** and, for the period between that year and the date of commencement

of the League series (approximately 1918–20), to reproduce such prints of trea-

ties in their original languages as can be found in whatsoever collection along

with such translations into English or French as again *** can be found.’’

‘‘Appendix of Dutch colonial agreements’’: v. 227–231

Index-guide to treaties: based on the Consolidated treaty series, edited and anno-

tated by Clive Parry, LL.D., and all other series therein utilised. Dobbs Ferry,

N.Y., Oceana Publications, 1979–1986. 3 v. in 12 (Consolidated treaty series)

Contents.—[pt. 1] v. 1. Irwin, P. General chronological list, 1648–1809 [i.e.,

1648–1808]—v. 2. Hill, Brian H.W. General chronological list, 1886–1903.—v. 5.

Hill, Brian H.W. General chronological list, 1904–1919.—[pt. 2] Meyer, Michael

A. Special chronological lists, 1648–1920 (2 v.)—[pt. 3] Hill, Brian H.W. Party

index. v. 1, Afghanistan-Finland.—v. 2, France-German states.—v. 3, Great

Britain-Italy.—v. 4, Japan-South Rhodesia.—v. 5, Spain-Zanzibar.

This series continues the earlier series of works on treaties, edited by Clive

Parry. It includes ‘‘newly concluded international agreements, both executive

agreements as well as formal treaties, which have been ratified. The Depart-

ment of State Dispatch provides notation of whether or not treaties have been

ratified. Because the treaties published in this work are relatively recent, TIAS

(United States Treaties and Other International Agreement) numbers have not

yet been assigned. Executive agreements included are assigned a number begin-

ning with the last two digits of the year. A complete index is included.

United Nations. Secretary General. Multilateral treaties deposited with the Sec-

retary-General; status as of 31 December 1991. New York, 1992. 951 p. (ST/

LEG/SER.E/10) This publication continues the publication entitled, Multilateral

Treaties in respect of which the Secretary-General Performs Depositary Func-

tions. The last issue of that publication appeared in 1980 (ST/LEG/SER.D/13)

with data up to December 31, 1979. The 1992 volume of this publication is the

tenth in the series ST/LEG/SER.E.

This publication covers ‘‘all multilateral treaties the original of which is de-

posited with the Secretary-General; the Charter of the United Nations, in re-

spect of which certain depository functions have been conferred upon the Sec-

retary-General ***; multilateral treaties formerly deposited with the Secretary

General of the League of Nations ***; certain pre-United Nations treaties.’’

U.S. Department of State. Catalog of Treaties: 1814–1918. Washington, U.S. Gov-

ernment Printing Office, 1919; reprinted by Oceana Publications, Dobbs Ferry,

N.Y., 1964. 716 p.

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‘‘This Catalog of Treaties, originally started as a card catalogue *** The trea-

ties from 1814 to 1918 are arranged in a chronological list, with information as

to the time and place of signature and of ratification, the signatory powers, the

treaty collections where the text may be found with the language of the text,

as well as cross-references to later treaties which abrogate, modify, or supersede

the treaty in question ***. The appendix contains a few of the most important

treaties before 1814, as well as early treaties referred to in the main list.’’ The

index contains a country index as well as an index to agreements of general

international character. A list of inter-American agreements is also included.

Oceana also offers the treaties and International Agreements Researchers’ Ar-

chive on CD–ROM. This set is searchable by such elements as signatories, date

signed, date in force, expiration, TIAS and CTIA number.

TOPICAL COLLECTIONS

a. Diplomatic and national security issues

Elliott, Jonathan. The American diplomatic code, embracing a collection of treaties

and conventions between the United States and foreign powers from 1778 to

1834; also, a concise diplomatic manual containing a summary of the law of na-

tions from the works of Wicquefort, Martens, Kent, Vattel, Waqrd, Story. New

York, B. Franklin [1970] 2 v. (Burt Franklin research and source works series,

605) Texts of treaties in English and Dutch, French, Italian, or Spanish. Re-

print of the 1834 ed.

Extradition laws and treaties, United States. Compiled by I. I. Kavass and A.

Sprudzs. Buffalo, N.Y., W.S. Hein, 1979. 2 v. (Loose-leaf) Texts of treaties were

taken from the Treaties and other international agreements of the United

States of America. 1776–1949, edited by Charles I. Bevans, and United States

treaties and other international agreements (TIAS advance sheets).’’ ‘‘For extra-

dition laws of the 1800s, see The Law of Extradition, International and Inter-

state, by Samuel T. Spear. Littleton, Colo., F.B. Rothman, 1984 [c1884] 766 p.

Spear’s work has as a subtitle: ‘‘With an appendix, containing the extradition

treaties and laws of the United States, the extradition laws of the states, sev-

eral sections of the English Extradition Act of 1870, and the opinion of Governor

Cullom.’’ The Rothman publication is a reprint of the third edition, originally

published in Albany, by Wedd, Parsons in 1885.

Friedman, Leon. The Law of war, a documentary history. New York, Random

House, 1972. 2 v. Inter-American relations: a collection of documents, legisla-

tion, descriptions of inter-American organizations, and other material pertain-

ing to inter-American affairs; report prepared for the use of the Committee on

Foreign Relations, United States Senate and Committee on Foreign Affairs,

U.S. House of Representatives by the Congressional Research Service, Library

of Congress. Washington, U.S. Government Printing Office, 1989. 999 p. (Print,

Senate, 100th Cong., 2d Sess., joint committee print, S. Prt. 100–168)

Partial contents.—Major inter-American treaties and agreements.—Summary

of major inter-American conferences, meetings, or events, 1826–1988.—General

U.S. legislation related to Latin America and the Caribbean.—Major U.S. legis-

lation and agreements related to specific sub-regions and countries.—Selected

Presidential speeches.

The laws of armed conflicts. A collection of conventions, resolutions and other docu-

ments. Edited by Dietrich Schindler and Jiri Toman. Leiden, Sijthoff; Geneva,

Henry Dunant Institute, 1973. 795 p. (Scientific collection of the Henry Dunant

Institute.)

Major peace treaties of modern history, 1648–1967. Compiled by Fred L. Israel.

Commentaries by Emanuel Chill, with an introductory essay by Arnold Toyn-

bee. New York, Chelsea House Publishers, 1967–80. 5 v. v. 5 has title: Major

peace treaties of modern history, 1967–1979.

United Nations. Secretariat. A comprehensive study of the scope originally proposed

or aimed at in draft multilateral disarmament treaties of a universal character

concluded under U.N. auspices and the scope finally fixed in those treaties, in-

cluding the contemplated measures for expanding that scope; working paper.

[New York] 1977. 54 p. (United Nations. [Document] A/AC.187/68).

At head of title: United Nations General Assembly.

This document covers six multilateral disarmament treaties: Treaty Banning

Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water;

Treaty on Principles governing the activities of States in the Exploration and

Use of Outer space, Including the Moon and Other Celestial Bodies; Treaty on

the Non-Proliferation of Nuclear Weapons: Treaty on the Prohibition of the Em-

placement of Nuclear Weapons and Other Weapons of Mass Destruction on the

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347

Sea-Bed and the Ocean Floor and in the Subsoil Thereof; Convention on the

Prohibition of the Development, Production and Stockpiling of Bacteriological

(Biological) and Toxic Weapons and on Their Destruction; Convention on the

Prohibition of Military of Any Other Hostile Use of Environmental Modification

Techniques.

United States. International terrorism: a compilation of major laws, treaties, agree-

ments, and executive documents: report prepared for the Committee on Foreign

Affairs, U.S. House of Representatives, by the Congressional Research Service,

Library of Congress. Washington, For sale by the Superintendent of Documents,

Congressional Sales Office, U.S. Government Printing Office, 1991. 1397 p.

At head of title: 102d Congress, 1st Session. Committee Print.

This compilation comprises major laws, treaties and agreements, and execu-

tive documents relating to U.S. and international efforts to combat terrorism.

The legislation is subdivided into sections relating to foreign assistance, the De-

partment of State, trade and financial issues, treaty implementation, and other

subjects.

It also includes a selection of significant executive orders, proclamations, mes-

sages to Congress, Presidential determinations, and economic summit con-

ference statements. Bilateral agreements on aviation security and extradition,

as well as relevant multilateral treaties, are included. In addition, the compila-

tion includes a number of reports to the President and to Congress and impor-

tant regulations and documents on such topics as hostage relief and air secu-

rity.

U.S. Arms Control and Disarmament Agency. Arms control and disarmament agree-

ments: texts and histories of negotiations. 1990 ed. Washington, U.S. Arms Con-

trol and Disarmament Agency, for sale by the Superintendent of Documents,

U.S. Government Printing Office, 1990. 459 p. (U.S. Arms Control and Disar-

mament Agency publication 105)

U.S. Congress. Senate. Committee on Foreign Relations. Legislation on foreign rela-

tions through 1992. Washington, U.S. Government Printing Office, 1993. 4 v.

(Print, Senate, 103d Congress, 1st Sess., S. Prt. 103–23)

‘‘Printed for the use of the Committee on Foreign Relations and Foreign Af-

fairs of the Senate and the House of Representatives respectively.’’

These volumes of legislation and related material are part of a five volume

set of laws and related material frequently referred to by the Committees on

Foreign Affairs of the House of Representatives and Foreign Relations of the

Senate amended to date and annotated to show pertinent history or cross ref-

erences. Volumes I, II, III, and IV contain legislation and related material and

are republished with amendments and additions at the end of each annual ses-

sion of Congress. Volume V which contains treaties and related material will

not be revised every year, but only as necessary.

b. Economic and commercial issues

Air and aviation treaties of the world. Edited by S. Houston Lay. Dobbs Ferry, N.Y.,

Oceana Publications, 1979+

Air and aviation treaties of the world. Edited by S. Houston Lay. Dobbs Ferry, N.Y.,

Oceana Publications, 1984—v. 1–3 (loose-leaf)

Contents (Incomplete): pt. 1. Multilateral treaties v. 1–3. The work is num-

bered in terms of parts, binders, and booklets; statement of holdings reflects

binders.

Commercial treaty index. [Chicago] American Bar Association Committee on Com-

mercial Treaties, 1973+ 1 v. (loose-leaf)

This is a subject index of ‘‘certain segments of the United States’ nontariff

commercial treaty series.’’

American Bar Association. Committee on Commercial Treaties. Commercial treaty

index. 2d ed. [Chicago] Section of International Law, American Bar Association,

1974–1 v. Loose-leaf for updating.

Intergovernmental Maritime Consultative Organization. Status on 30 September

1971 of multilateral acts in respect of which the Inter-Governmental Maritime

Consultative Organization acts as depositary. London, 1972? 63 p.

International tax treaties of all nations: containing English language texts of all tax

treaties between two or more nations in force on July 1, 1975. Edited by Walter

H. Diamond, and Dorothy B. Diamond. Dobbs Ferry, N.Y., Oceana Publications,

1975+

International tax treaties of all nations, series B: containing tax treaties not yet

published by the United Nations, printed in English, and in many instances,

languages of the signatories. Edited by Walter H. Diamond and Dorothy B. Dia-

mond. Dobbs Ferry, N.Y., Oceana Publications, 1978–1982. v. 1–12, Includes

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348

unnumbered indexes which also index the International Tax Treaties of All Na-

tions.

Wallenstein, Gerd D. International telecommunication agreements. Dobbs Ferry,

N.Y., Oceana Publications, 1977 3 v.

Provides the texts of international telecommunication treaties and agree-

ments which are in force.

c. International environmental issues and management of common areas

Christol, Carl Quimby. The modern international law of outer space. New York,

Pergamon Press,  1982. 932 p. (Pergamon policy studies on international poli-

tics) Appendixes (pp. 849–915) contain 12 international agreements.

Index to marine treaties. Compiled by John King Gamble, Jr. Seattle, Division of

Marine Resources, University of Washington, 1972. 438 p.

Includes all marine treaties found in v. 1–643 of the United Nations treaty

series (UNTS); in the Canadian treaty series (CTS) 1946–67; and in the United

States Treaties and Other International Acts Series (TIAS) 1950–70. A Wash-

ington sea grant publication; WSG 72–2 On cover: Washington Sea Grant Pro-

gram.

U.S. Congress. Senate. Committee on Commerce, Science, and Transportation.

Space law and related documents: international space law documents, U.S.

space law documents. Washington, U.S. Government Printing Office, 1990. 605

p. (Print, Senate, 101st Cong., 2d Sess., committee print S. Print 101–88)

This document consists of two parts: ‘‘Part 1 on international space law, and

Part 2 on domestic space law.’’

U.S. International Trade Commission. International agreements to protect the envi-

ronment and wildlife. Washington, The Commission, 1991. ca. 217 p. in various

pagings. (U.S. ITC publication 2351)

Categorizes 170 multilateral and bilateral agreements of significance to U.S.

interests into 8 groups: marine pollution; pollution of air, land, and inland wa-

ters; boundary waters between the United States and Mexico and Canada; ar-

chaeological, cultural, historical or natural heritage; maritime and coastal wa-

ters matters; nuclear pollution. ‘‘Summary information on all these agreements

(when available) includes objectives and obligations, dates signed, literature ci-

tations, enforcement and dispute-settlement provisions, information-exchange

provisions, current issues, and a listing of parties.’’

International protection of the environment: treaties and related documents com-

piled and edited by Bernd Ruster & Bruno Simma. Dobbs Ferry, N.Y., Oceana

Publications, 1975–1982. 30 v. Vols. 18–30 compiled and edited by Bernd

Ruster, Bruno Simma, and Michael Bock.

U.S. Library of Congress. Congressional Research Service. Treaties and other inter-

national agreements on fisheries, oceanographic resources, and wildlife to which

the United States is party. Prepared at the request of Honorable Warren G.

Magnuson, Chairman, for the use of the Committee on Commerce, U.S. Senate.

Washington, U.S. Government Printing Office, 1974 [i.e. 1975] 968 p.

At head of title: 93d Congress, 2d Session. Committee Print.

———. Treaties and other international agreements on fisheries, oceanographic re-

sources, and wildlife involving the United States. Prepared at the request of

Warren G. Magnuson for the use of the Committee on Commerce, Science, and

Transportation, United States Senate. Washington, U.S. Government Printing

Office, 1977. 1201 p.

U.S. Marine Mammal Commission. The Marine Mammal Commission compendium

of selected treaties, international agreements, and other relevant documents on

marine resources, wildlife and the environment. Compiled by Richard L. Wal-

lace. [Washington] The Commission. [1994] 3 v.

This work presents both multilateral and bilateral agreements.

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Source: U.S. Congress. House Committee on International Relations and Senate Committee

on Foreign Relations, Joint Committee Print. Legislation on Foreign Relations Through 1999,

vol. II.

Title VIII of the Legislative Branch Appropriations Act, 1976 (Public Law 94–59; 89 Stat.

296; 44 U.S.C. 1317 note), however, provided the following:

‘‘Hereafter, notwithstanding any other provisions of law, appropriations for the automatic dis-

tribution to Senators and Representatives (including Delegates to Congress and the Resident

Commissioner from Puerto Rico) of copies of the Foreign Relations of the United States, the

United States Treaties and other International Agreements, the District of Columbia Code and

Supplements, and more than one bound set of the United States Code and Supplements shall

not be available with respect to any Senator or Representative unless such Senator or Rep-

resentative specifically, in writing, requests that he receive copies of such documents.’’.

See also Department of State regulations (22 CFR Part 181) for the coordination and reporting

of international agreements.

Sec. 138(1) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (Public

Law 103–236; 108 Stat. 397), added subsec. designation ‘‘(a)’’.

Sec. 138(2) of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (Public

Law 103–236; 108 Stat. 397), added Subsections (b) and (c).

The Secretary of State delegated functions authorized under Subsection (b) to the Legal Advi-

sor (Department of State Public Notice 2086; sec. 13 of Delegation of Authority No. 214; 59 F.R.

50790).

APPENDIX 2.—CASE-ZABLOCKI ACT ON

TRANSMITTAL OF INTERNATIONAL AGREE-

MENTS AND RELATED REPORTING RE-

QUIREMENTS

Sections 112a and 112b, Title 1, United States Code; as added by act of Sep-

tember 23, 1950, 64 Stat. 980; and added by Public Law 92–403

[Case-Zablocki Act, S. 596], 86 Stat. 619, approved August 22,

1972; as amended by Public Law 95–45 [Department of State

Appropriation Authorization; H.R. 5040] 91 Stat. 221, approved

June 15, 1977; Public Law 95–426 [Foreign Relations Author-

ization Act, Fiscal Year 1979; H.R. 12598], 92 Stat. 963, ap-

proved October 7, 1978; and by Public Law 103–437 [H.R. 4777],

108 Stat. 4581, approved November 2, 1994

§112a.

United States treaties and other international agreements; con-

tents; admissibility in evidence

(a)

The Secretary of State shall cause to be compiled, edited, indexed, and pub-

lished, beginning as of January 1, 1950, a compilation entitled ‘‘United States Trea-

ties 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. The said United

States Treaties and Other International Agreements shall be legal evidence of the

treaties, international agreements other than treaties, and proclamations by the

President of such treaties and agreements, therein contained, in all the courts of

the United States, the several States, and the Territories and insular possessions

of the United States.

(b)

The Secretary of State may determine that publication of certain categories

of agreements is not required, if the following criteria are met:

(1) such agreements are not treaties which have been brought into force for the

United States after having received Senate advice and consent pursuant to section

2(2) of Article II of the Constitution of the United States;

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350

Popularly referred to as the Case-Zablocki Act.

Sec. 708 of Public Law 95–426 (92 Stat. 993) inserted the subsection designation ‘‘(a)’’ and

added subsections (b) through (e).

Sec. 708 of Public Law 95–426 (92 Stat. 993) added the parenthetical phrase.

Sec. 139 of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (Public Law

100–204; 101 Stat. 1347) required that if the 60-day period specified in this sentence was not

honored, no funds authorized to be appropriated would be available after the end of the 60-day

period to implement any agreement required to be transmitted until the text of such agreement

was so transmitted. This restriction on use of funds was made effective 60 days after the enact-

ment of Public Law 100–204 and made applicable during fiscal years 1988 and 1989.

Sec. 1 of Public Law 103–437 (108 Stat. 4581) struck out ‘‘Committee on International Rela-

tions’’ and inserted in lieu thereof ‘‘Committee on Foreign Affairs’’. Sec. 1(a)(5) of Public Law

104–14 (109 Stat. 186) subsequently provided that references to the Committee on Foreign Af-

fairs of the House of Representatives shall be treated as referring to the Committee on Inter-

national Relations of the House of Representatives (but did not amend the law).

This sentence was added by sec. 5(a) of Public Law 95–45 (91 Stat. 224).

(2) the public interest in such agreements is insufficient to justify their publica-

tion, because (A) as of the date of enactment of the Foreign Relations Authoriza-

tion 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 in-

tended 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 agree-

ments, 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 (other than those in paragraph (2) (D)), including

certified copies where necessary for litigation or similar purposes, will be made

available by the Department of State upon request.

(c)

Any determination pursuant to subsection (b) shall be published in the Fed-

eral Register.

§112b.

United States international agreements; transmission to Congress

(a)

The Secretary of State shall transmit to the Congress the text of any inter-

national agreement (including the text of any oral international agreement, which

agreement shall be reduced to writing)

other than a treaty, to which the United

States is a party as soon as practicable after such agreement has entered into force

with respect to the United States but in no event later than sixty days thereafter.

However, any such agreement the immediate public disclosure of which would, in

the opinion of the President, be prejudicial to the national security of the United

States shall not be so transmitted to the Congress but shall be transmitted to the

Committee on Foreign Relations of the Senate and the Committee on Foreign Af-

fairs

of the House of Representatives under an appropriate injunction of secrecy

to be removed only upon due notice from the President. Any department or agency

of the United States 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 twenty days after such agreement has been signed.

(b)

Not later than March 1, 1979, and at yearly intervals thereafter, the Presi-

dent shall, under his own signature, transmit to the Speaker of the House of Rep-

resentatives and the chairman of the Committee on Foreign Relations of the Senate

a report with respect to each international agreement which, during the preceding

year, was transmitted to the Congress after the expiration of the 60-day period re-

ferred to in the first sentence of subsection (a), describing fully and completely the

reasons for the late transmittal.

(c)

Notwithstanding any other provision of law, an international agreement may

not be signed or otherwise concluded on behalf of the United States without prior

consultation with the Secretary of State. Such consultation may encompass a class

of agreements rather than a particular agreement.

(d)

The Secretary of State shall determine for and within the executive branch

whether an arrangement constitutes an international agreement within the mean-

ing of this section.

(e)

The President shall, through the Secretary of State, promulgate such rules

and regulations as may be necessary to carry out this section.

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Sources: 22 CFR Part 181 (April 1, 2000 edition); U.S. Congress. House Committee on Inter-

national Relations, Senate Committee on Foreign Relations, Joint Committee Print. Legislation

on Foreign Relations Through 1999, volume II.

Sec. 181.8 was added at 61 F.R. 7071, February 16, 1996.

The first sentence of sec. 181.1 was amended at 61 F.R. 7071, February 16, 1996. It formerly

read as follows: ‘‘The purpose of this part is to implement the provisions of 1 U.S.C. 112b, popu-

larly known as the Case-Zablocki Act (hereafter referred to as ‘‘the Act’’), on the reporting to

Congress and coordination with the Secretary of State of international agreements of the United

States.’’.

APPENDIX 3.—COORDINATION AND REPORT-

ING OF INTERNATIONAL AGREEMENTS,

STATE DEPARTMENT REGULATIONS

Regulations of the Secretary of State, 22 CFR Part 181, July 13, 1981, 46

F.R. 35918; amended at 61 F.R. 7071, February 26, 1996

UBCHAPTER

S—I

NTERNATIONAL

GREEMENTS

PART

181—

COORDINATION AND REPORTING OF INTERNATIONAL AGREEMENTS

Sec.

181.1 Purpose and application.

181.2 Criteria.

181.3 Determinations.

181.4 Consultations with the Secretary of State.

181.5 Twenty-day rule for concluded agreements.

181.6 Documentation and certification.

181.7 Transmittal to the Congress.

181.8 Publication.

UTHORITY

: 1 U.S.C. 112a, 112b; and 22 U.S.C. 2651a.

§181.1 Purpose and application.

(a) The purpose of this part is to implement the provisions of 1 U.S.C. 112a and

112b, popularly known as the Case-Zablocki Act (hereafter referred to as ‘‘the Act’’),

on the reporting to Congress, coordination with the Secretary of State and publica-

tion of international agreements.

This part applies to all agencies of the U.S. Gov-

ernment whose responsibilities include the negotiation and conclusion of inter-

national agreements. This part does not, however, constitute a delegation by the

Secretary of State of the authority to engage in such activities. Further, it does not

affect any additional requirements of law governing the relationship between par-

ticular agencies and the Secretary of State in connection with international negotia-

tions and agreements, or any other requirements of law concerning the relationship

between particular agencies and the Congress. The term ‘‘agency’’ as used in this

part means each authority of the United States Government, whether or not it is

within or subject to review by another agency.

(b) Pursuant to the key legal requirements of the Act—full and timely disclosure

to the Congress of all concluded agreements and consultation by agencies with the

Secretary of State with respect to proposed agreements—every agency of the Gov-

ernment is required to comply with each of the provisions set out in this part in

implementation of the Act. Nevertheless, this part is intended as a framework of

measures and procedures which, it is recognized, cannot anticipate all circumstances

or situations that may arise. Deviation or derogation from the provisions of this part

will not affect the legal validity, under United States law or under international

law, of agreements concluded, will not give rise to a cause of action, and will not

affect any public or private rights established by such agreements.

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§181.2 Criteria.

(a) General.—The following criteria are to be applied in deciding whether any un-

dertaking, oral agreement, document, or set of documents, including an exchange of

notes or of correspondence, constitutes an international agreement within the mean-

ing of the Act, as well as within the meaning of 1 U.S.C. 112a, requiring the publi-

cation of international agreements. Each of the criteria except those in paragraph

(a) (5) of this section must be met in order for any given undertaking of the United

States to constitute an international agreement.

(1) Identity and intention of the parties.—A party to an international agreement

must be a state, a state agency, or an intergovernmental organization. The parties

must intend their undertaking to be legally binding, and not merely of political

or personal effect. Documents intended to have political or moral weight, but not

intended to be legally binding, are not international agreements. An example of

the latter is the Final Act of the Helsinki Conference on Cooperation and Security

in Europe. In addition, the parties must intend their undertaking to be governed

by international law, although this intent need not be manifested by a third-party

dispute settlement mechanism or any express reference to international law. In

the absence of any provision in the arrangement with respect to governing law,

it will be presumed to be governed by international law. This presumption may

be overcome by clear evidence, in the negotiating history of the agreement or oth-

erwise, that the parties intended the arrangement to be governed by another legal

system. Arrangements governed solely by the law of the United States, or one of

the states or jurisdictions thereof, or by the law of any foreign state, are not inter-

national agreements for these purposes. For example, a foreign military sales loan

agreement governed in its entirety by U.S. law is not an international agreement.

(2) Significance of the arrangement.—Minor or trivial undertakings, even if

couched in legal language and form, are not considered international agreements

within the meaning of the Act or of 1 U.S.C. 112a. In deciding what level of sig-

nificance must be reached before a particular arrangement becomes an inter-

national agreement, the entire context of the transaction and the expectations and

intent of the parties must be taken into account. It is often a matter of degree.

For example, a promise to sell one map to a foreign nation is not an international

agreement; a promise to exchange all maps of a particular region to be produced

over a period of years may be an international agreement. It remains a matter

of judgment based on all of the circumstances of the transaction. Determinations

are made pursuant to §181.3. Examples of arrangements that may constitute

international agreements are agreements that: (a) are of political significance; (b)

involve substantial grants of funds or loans by the United States or credits pay-

able to the United States; (c) constitute a substantial commitment of funds that

extends beyond a fiscal year or would be a basis for requesting new appropria-

tions; (d) involve continuing and/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, or the pooling

of data. However, individual research grants and contracts do not ordinarily con-

stitute international agreements.

(3) Specificity, including objective criteria for determining enforceability.—Inter-

national agreements require precision and specificity in the language setting forth

the undertakings of the parties. Undertakings couched in vague or very general

terms containing no objective criteria for determining enforceability or perform-

ance are not normally international agreements. Most frequently such terms re-

flect an intent not to be bound. For example, a promise to ‘‘help develop a more

viable world economic system’’ lacks the specificity essential to constitute a legally

binding international agreement. However, the intent of the parties is the key fac-

tor. Undertakings as general as those of, for example, Articles 55 and 56 of the

United Nations Charter have been held to create internationally binding obliga-

tions intended as such by the parties.

(4) Necessity for two or more parties.—While unilateral commitments on occa-

sion may be legally binding, they do not constitute international agreements. For

example, a statement by the President promising to send money to Country Y to

assist earthquake victims would not be an international agreement. It might be

an important undertaking, but not all undertakings in international relations are

in the form of international agreements. Care should be taken to examine wheth-

er a particular undertaking is truly unilateral in nature, or is part of a larger bi-

lateral or multilateral set of undertakings. Moreover, ‘‘consideration,’’ as that term

is used in domestic contract law, is not required for international agreements.

(5) Form.—Form as such is not normally an important factor, but it does de-

serve consideration. Documents which do not follow the customary form for inter-

national agreements, as to matters such as style, final clauses, signatures, or

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353

entry into force dates, may or may not be international agreements. Failure to use

the customary form may constitute evidence of a lack of intent to be legally bound

by the arrangement. If, however, the general content and context reveal an inten-

tion to enter into a legally binding relationship, a departure from customary form

will not preclude the arrangement from being an international agreement. More-

over, the title of the agreement will not be determinative. Decisions will be made

on the basis of the substance of the arrangement, rather than on its denomination

as an international agreement, a memorandum of understanding, exchange of

notes, exchange of letters, technical arrangement, protocol, note verbale, aide-me-

moire, agreed minute, or any other name.

(b) Agency-level agreements.—Agency-level agreements are international agree-

ments within the meaning of the Act and of 1 U.S.C. 112a if they satisfy the criteria

discussed in paragraph (a) of this section. The fact that an agreement is concluded

by and on behalf of a particular agency of the United States Government, rather

than the United States Government, does not mean that the agreement is not an

international agreement. Determinations are made on the basis of the substance of

the agency-level agreement in question.

teria discussed in paragraph (a) of this section, may be an international agreement,

depending upon how precisely it is anticipated and identified in the underlying

agreement it is designed to implement. If the terms of the implementing agreement

are closely anticipated and identified in the underlying agreement, only the underly-

ing agreement is considered an international agreement. For example, the underly-

ing agreement might call for the sale by the United States of 1000 tractors, and a

subsequent implementing agreement might require a first installment on this obli-

gation by the sale of 100 tractors of the brand X variety. In that case, the imple-

menting agreement is sufficiently identified in the underlying agreement, and would

not itself be considered an international agreement within the meaning of the Act

or of 1 U.S.C. 112a. Project annexes and other documents which provide technical

content for an umbrella agreement are not normally treated as international agree-

ments. However, if the underlying agreement is general in nature, and the imple-

menting agreement meets the specified criteria of paragraph (a) of this section, the

implementing agreement might well be an international agreement. For example,

if the underlying agreement calls for the conclusion of ‘‘agreements for agricultural

assistance,’’ but without further specificity, then a particular agricultural assistance

agreement subsequently concluded in ‘‘implementation’’ of that obligation, provided

it meets the criteria discussed in paragraph (a) of this section, would constitute an

international agreement independent of the underlying agreement.

(d) Extension and modifications of agreements.—If an undertaking constitutes an

international agreement within the meaning of the Act and of 1 U.S.C. 112a, then

a subsequent extension or modification of such an agreement would itself constitute

an international agreement within the meaning of the Act of 1 U.S.C. 112a.

(e) Oral agreements.—Any oral arrangement that meets the criteria discussed in

paragraphs (a) (1)–(4) of this section is an international agreement and, pursuant

to section (a) of the Act, must be reduced to writing by the agency that concluded

the oral arrangement. In such written form, the arrangement is subject to all the

requirements of the Act and of this part. Whenever a question arises whether an

oral arrangement constitutes an international agreement, the arrangement shall be

reduced to writing and the decision made in accordance with §181.3.

§181.3 Determinations.

(a) Whether any undertaking, document, or set of documents constitutes or would

constitute an international agreement within the meaning of the Act or of 1 U.S.C.

112a shall be determined by the Legal Adviser of the Department of State, a Deputy

Legal adviser, or in most cases the Assistant Legal Adviser for Treaty Affairs. Such

determinations shall be made either on a case-by-case basis, or on periodic consulta-

tion, as appropriate.

(b) Agencies whose responsibilities include the negotiation and conclusion of inter-

national agreements are responsible for transmitting to the Assistant Legal Adviser

for Treaty Affairs, for decision pursuant to paragraph (a) of this section, the texts

of any document or set of documents that might constitute an international agree-

ment. The transmittal shall be made prior to or simultaneously with the request

for consultations with the Secretary of State required by subsection (c) of the Act

and § 181.4 of this part.

numbers of agency-level and implementing arrangements at overseas posts, only a

small number of which might constitute international agreements within the mean-

ing of the Act and of 1 U.S.C. 112a, are required to transmit prior to their entry

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into force only the texts of the more important of such arrangements for decision

pursuant to paragraph (a) of this section. The texts of all arrangements that might

constitute international agreements shall, however, be transmitted to the Office of

the Assistant Legal Adviser for Treaty Affairs as soon as possible, and in no event

to arrive at that office later than 20 days after their signing for decision pursuant

to paragraph (a) of this section.

(d) Agencies to which paragraphs (b) and (c) of this section apply shall consult

periodically with the Assistant Legal Adviser for Treaty Affairs in order to deter-

mine which categories of arrangements for which they are responsible are likely to

be international agreements within the meaning of the Act and of 1 U.S.C. 112a.

§181.4 Consultations with the Secretary of State.

(a) The Secretary of State is responsible, on behalf of the President, for ensuring

that all proposed international agreements of the United States are fully consistent

with United States foreign policy objectives. Except as provided in §181.3(c) of this

part, no agency of the U.S. Government may conclude an international agreement,

whether entered into in the name of the U.S. Government or in the name of the

agency, without prior consultation with the Secretary of State or his designee.

(b) The Secretary of State (or his designee) gives his approval for any proposed

agreement negotiated pursuant to his authorization, and his opinion on any pro-

posed agreement negotiated by an agency which has separate authority to negotiate

such agreement. The approval or opinion of the Secretary of State or his designee

with respect to any proposed international agreement will be given pursuant to De-

partment of State procedures set out in Volume 11, Foreign Affairs Manual, Chap-

ter 700 (Circular 175 procedure). Officers of the Department of State shall be re-

sponsible for the preparation of all documents required by the Circular 175 proce-

dure.

proposed international agreement to be concluded in the name of the U.S. Govern-

ment will be given either by the Secretary of State or his designee. The approval

of, or opinion on a proposed international agreement to be concluded in the name

of a particular agency of the U.S. Government will be given by the interested assist-

ant secretary or secretaries of State, or their designees, unless such official(s) judge

that consultation with the Secretary, Deputy Secretary, or an Under Secretary is

necessary. The approval of, or opinion on a proposed international agreement will

normally be given within 20 days of receipt of the request for consultation and of

the information as required by §181.4(d)–(g).

(d) Any agency wishing to conclude an international agreement shall transmit to

the interested bureau or office in the Department of State, or to the Office of the

Legal Adviser, for consultation pursuant to this section, a draft text or summary of

the proposed agreement, a precise citation of the Constitutional, statutory, or treaty

authority for such agreement, and other background information as requested by

the Department of State. The transmittal of the draft text or summary and citation

of legal authority shall be made before negotiations are undertaken, or if that is not

feasible, as early as possible in the negotiating process. In any event such transmit-

tals must be made no later than 50 days prior to the anticipated date for concluding

the proposed agreement. If unusual circumstances prevent this 50-day requirement

from being met, the concerned agency shall use its best efforts to effect such trans-

mittal as early as possible prior to the anticipated date for concluding the proposed

agreement.

(e) If a proposed agreement embodies a commitment to furnish funds, goods, or

services that are beyond or in addition to those authorized in an approved budget,

the agency proposing the agreement shall state what arrangements have been

planned or carried out concerning consultation with the Office of Management and

Budget for such commitment. The Department of State should receive confirmation

that the relevant budget approved by the President provides or requests funds ade-

quate to fulfill the proposed commitment, or that the President has made a deter-

mination to seek the required funds.

(f) Consultation may encompass a specific class of agreements rather than a par-

ticular agreement where a series of agreements of the same general type is con-

templated; that is, where a number of agreements are to be negotiated according

to a more or less standard formula, such as, for example, Public Law 480 Agricul-

tural Commodities Agreements. Any agency wishing to conclude a particular agree-

ment within a specific class of agreements about which consultations have pre-

viously been held pursuant to this section shall transmit a draft text of the proposed

agreement to the Office of the Legal Adviser as early as possible but in no event

later than 20 days prior to the anticipated date for concluding the agreement.

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(g) The consultation requirement shall be deemed to be satisfied with respect to

proposed international agreements of the United States about which the Secretary

of State (or his designee) has been consulted in his capacity as a member of an

interagency committee or council established for the purpose of approving such pro-

posed agreements. Designees of the Secretary of State serving on any such inter-

agency committee or council are to provide as soon as possible to the interested of-

fices or bureaus of the Department of State and to the Office of the Legal Adviser

copies of draft texts or summaries of such proposed agreements and other back-

ground information as requested.

(h) Before an agreement containing a foreign language text may be signed or oth-

erwise concluded, a signed memorandum must be obtained from a responsible lan-

guage officer of the Department of State or of the U.S. Government agency con-

cerned certifying that the foreign language text and the English language text are

in conformity with each other and that both texts have the same meaning in all sub-

stantive respects. The signed memorandum is to be made available to the Depart-

ment of State upon request.

§181.5 Twenty-day rule for concluded agreements.

(a) Any agency, including the Department of State, that concludes an inter-

national agreement within the meaning of the Act and of 1 U.S.C. 112a, whether

entered into in the name of the U.S. Government or in the name of the agency, must

transmit the text of the concluded agreement to the office of the Assistant Legal Ad-

viser for Treaty Affairs as soon as possible and in no event to arrive at that office

later than 20 days after the agreement has been signed. The 20-day limit, which

is required by the Act, is essential for purposes of permitting the Department of

State to meet its obligation under the Act to transmit concluded agreements to the

Congress no later than 60 days after their entry into force.

(b) In any case of transmittal after the 20-day limit, the agency or Department

of State office concerned may be asked to provide to the Assistant Legal Adviser for

Treaty Affairs a statement describing the reasons for the late transmittal. Any such

statements will be used, as necessary, in the preparation of the annual report on

late transmittals, to be signed by the President and transmitted to the Congress,

as required by subsection (b) of the Act.

§181.6 Documentation and certification.

(a) Transmittals of concluded agreements to the Assistant Legal Adviser for Trea-

ty Affairs pursuant to §181.5 must include the signed or initialed original texts, to-

gether with all accompanying papers, such as agreed minutes, exchanges of notes,

or side letters. The texts transmitted must be accurate, legible, and complete, and

must include the texts of all languages in which the agreement was signed or initi-

ated. Names and identities of the individuals signing or initialing the agreements,

for the foreign government as well as for the United States, must, unless clearly

evident in the texts transmitted, be separately provided.

(b) Agreements from overseas posts should be transmitted to the Department of

State by priority airgram, marked for the attention of the Assistant Legal Adviser

for Treaty Affairs, with the following notation below the enclosure line: FAIM:

Please send attached original agreement to L/T on arrival.

copies must be transmitted in the same manner as original texts. A certified copy

must be an exact copy of the signed original.

(d) When an exchange of diplomatic notes between the United States and a for-

eign government constitutes an agreement or has the effect of extending, modifying,

or terminating an agreement to which the United States is a party, a properly cer-

tified copy of the note from the United States to the foreign government, and the

signed original of the note from the foreign government, must be transmitted. If,

in conjunction with the agreement signed, other notes related thereto are exchanged

(either at the same time, beforehand, or subsequently), properly certified copies of

the notes from the United States to the foreign government must be transmitted

with the signed originals of the notes from the foreign government.

(e) Copies may be certified either by a certification on the document itself, or by

a separate certification attached to the document. A certification on the document

itself is placed at the end of the document. It indicates, either typed or stamped,

that the document is a true copy of the original signed or initialed by (insert full

name of signing officer), and it is signed by the certifying officer. If a certification

is typed on a separate sheet of paper, it briefly describes the document certified and

states that it is a true copy of the original signed by (full name) and it is signed

by the certifying officer.

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356

Sec. 1(a) (5) of Public Law 104–14 (109 Stat. 186) provided that references to the Committee

on Foreign Affairs of the House of Representatives shall be treated as referring to the Commit-

tee on International Relations of the House of Representatives.

In original. Should read Senate Committee on Foreign Relations.

Sec. 181.8 was added at 61 F.R. 7071, February 16, 1996.

§181.7 Transmittal to the Congress.

(a) International agreements other than treaties shall be transmitted by the As-

sistant Legal Adviser for Treaty Affairs to the President of the Senate and the

Speaker of the House of Representatives as soon as practicable after the entry into

force of such agreements, but in no event later than 60 days thereafter.

(b) Classified agreements shall be transmitted by the Assistant Secretary of State

for Congressional Relations to the Senate Committee on Foreign Relations and to

the House Committee on Foreign Affairs.

dent of the Senate and to the Speaker of the House of Representatives background

information to accompany each agreement reported under the Act. Background

statements, while not expressly required by the Act, have been requested by the

Congress and have become an integral part of the reporting requirement. Each

background statement shall include information explaining the agreement, the nego-

tiations, the effect of the agreement, and a precise citation of legal authority. At the

request of the Assistant Legal Adviser for Treaty Affairs, each background state-

ment is to be prepared in time for transmittal with the agreement it accompanies

by the office most closely concerned with the agreement. Background statements for

classified agreements are to be transmitted by the Assistant Secretary of State for

Congressional Relations to the Senate Committee on Foreign Relations and to the

House Committee on Foreign Affairs.

(d) Pursuant to Section 12 of the Taiwan Relations Act (22 U.S.C. 3311), any

agreement entered into between the American Institute in Taiwan and the govern-

ing authorities on Taiwan, or any agreement entered into between the Institute and

an agency of the United States Government, shall be transmitted by the Assistant

Secretary of State for Congressional Relations to the President of the Senate and

to the Speaker of the House of Representatives as soon as practicable after the entry

into force of such agreements, but in no event later than 60 days thereafter. Classi-

fied agreements entered into by the Institute shall be transmitted by the Assistant

Secretary for Congressional Relations to the Senate Committee on Foreign Affairs.

§181.8 Publication.

(a) The following categories of international agreements will not be published in

United States Treaties and Other International Agreements:

(1) Bilateral agreements for the rescheduling of intergovernmental debt pay-

ments;

(2) Bilateral textile agreements concerning the importation of products contain-

ing specified textile fibers done under the Agricultural Act of 1956, as amended;

(3) Bilateral agreements between postal administrations governing technical ar-

rangements;

(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 sec-

tion that had not been published as of February 26, 1996.

other than those in paragraph (a) (9) of this section, but not published will be made

available upon request by the Department of State.

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(357)

APPENDIX 4.—DEPARTMENT OF STATE

CIRCULAR 175 PROCEDURES ON TREATIES

Foreign Affairs Manual, 11 FAM 700, Treaties and Other International

Agreements, TL:POL—36, Revised February 25, 1985

11 FAM 710

URPOSE AND

ISCLAIMER

11 FAM 711 P

URPOSE

(

STATE ONLY

)

a. The purpose of this chapter is to facilitate the application of orderly and uni-

form measures and procedures for the negotiation, signature, publication, and reg-

istration of treaties and other international agreements of the United States. It is

also designed to facilitate the maintenance of complete and accurate records on trea-

ties and agreements and the publication of authoritative information regarding

them.

b. The chapter is not a catalog of all the essential guidelines or information per-

taining to the making and application of international agreements. It is limited to

guidelines or information necessary for general guidance.

11 FAM 712 D

ISCLAIMER

(

STATE ONLY

)

This chapter is intended solely as a general outline of measures and procedures

ordinarily followed which, it is recognized, cannot anticipate all circumstances or sit-

uations that may arise. Deviation or derogation from the provisions of this chapter

will not invalidate actions taken by officers nor affect the validity of negotiations

engaged in or of treaties or other agreements concluded.

11 FAM 713 T

HROUGH

719 U

NASSIGNED

11 FAM 720

EGOTIATION AND

IGNATURE

11 FAM 720.1

CIRCULAR

175

PROCEDURE

This subchapter is a codification of the substance of Department Circular No. 175,

December 13, 1955, as amended, on the negotiation and signature of treaties and

other international agreements. It may be referred to for convenience and continuity

as the ‘‘Circular 175 Procedure.’’

11 FAM 720.2

GENERAL OBJECTIVES

The objectives are:

a. That the making of treaties and other international agreements for the United

States is carried out within constitutional and other appropriate limits;

b. That the objectives to be sought in the negotiation of particular treaties and

other international agreements are approved by the Secretary or an officer specifi-

cally authorized by him or her for that purpose;

c. That timely and appropriate consultation is had with congressional leaders and

committees on treaties and other international agreements;

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358

d. That where, in the opinion of the Secretary of State or a designee, the cir-

cumstances permit, the public be given an opportunity to comment on treaties and

other international agreements;

e. That firm positions departing from authorized positions are not undertaken

without the approval of the Legal Adviser and interested Assistant Secretaries or

their deputies;

f. That the final texts developed are approved by the Legal Adviser and the inter-

ested assistant secretaries or their deputies and, when required, brought a reason-

able time before signature to the attention of the Secretary or an officer specifically

designated by the Secretary for that purpose;

g. That authorization to sign the final text is obtained and appropriate arrange-

ments for signature are made; and

h. That there is compliance with the requirements of 1 U.S.C. 112b, as amended,

on the transmission of the texts of international agreements other than treaties to

the Congress (see 11 FAM 724); the law on the publication of treaties and other

international agreements (see 11 FAM 725); and treaty provisions on registration

(see 11 FAM 750.3–3).

11 FAM 721 E

XERCISE OF THE

NTERNATIONAL

GREEMENT

OWER

11 FAM 721.1

DETERMINATION OF TYPE OF AGREEMENT

The following considerations will be taken into account along with other relevant

factors in determining whether an international agreement shall be dealt with by

the United States as a treaty to be brought into force with the advice and consent

of the Senate or as an agreement to be brought into force on some other constitu-

tional basis.

11 FAM 721.2

CONSTITUTIONAL REQUIREMENTS

There are two procedures under the Constitution through which the United States

becomes a party to international agreement. Those procedures and the constitu-

tional parameters of each are:

a. Treaties

International agreements (regardless of their title, designation, or form) whose

entry into force with respect to the United States takes place only after the Senate

has given its advice and consent are ‘‘treaties.’’ The President, with the advice and

consent of two-thirds of the Senators present, may enter into an international agree-

ment on any subject genuinely of concern in foreign relations, so long as the agree-

ment does not contravene the United States Constitution; and

b. International Agreements Other Than Treaties

International agreements brought into force with respect to the United States on

a constitutional basis other than with the advice and consent of the Senate are

‘‘international agreements other than treaties.’’ (The term ‘‘executive agreement’’ is

appropriately reserved for agreements made solely on the basis of the constitutional

authority of the President.) There are three constitutional bases for international

agreements other than treaties as set forth below. An international agreement may

be concluded pursuant to one or more of these constitutional bases:

(1) Agreements Pursuant to Treaty.—The President may conclude an inter-

national agreement pursuant to a treaty brought into force with the advice and con-

sent of the Senate, the provisions of which constitute authorization for the agree-

ment by the Executive without subsequent action by the Congress;

(2) Agreements Pursuant to Legislation.—The President may conclude an

international agreement on the basis of existing legislation or subject to legislation

to be enacted by the Congress; and

(3) Agreements Pursuant to the Constitutional Authority of the Presi-

dent.—The President may conclude an international agreement on any subject

within his constitutional authority so long as the agreement is not inconsistent with

legislation enacted by the Congress in the exercise of its constitutional authority.

The constitutional sources of authority for the President to conclude international

agreements include:

(a) The President’s authority as Chief Executive to represent the nation in foreign

affairs;

(b) The President’s authority to receive ambassadors and other public ministers;

(d) The President’s authority to ‘‘take care that the laws be faithfully executed.’’

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359

11 FAM 721.3

CONSIDERATIONS FOR SELECTING AMONG CONSTITUTIONALLY

AUTHORIZED PROCEDURES

In determining a question as to the procedure which should be followed for any

particular international agreement, due consideration is given to the following fac-

tors along with those in 11 FAM 721.2:

a. The extent to which the agreement involves commitments or risks affecting the

nation as a whole;

b. Whether the agreement is intended to affect State laws;

c. Whether the agreement can be given effect without the enactment of subse-

quent legislation by the Congress;

d. Past U.S. practice as to similar agreements;

e. The preference of the Congress as to a particular type of agreement;

f. The degree of formality desired for an agreement;

g. 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

h. The general international practice as to similar agreements.

In determining whether any international agreement should be brought into force

as a treaty or as an international agreement other than a treaty, the utmost care

is to be exercised to avoid any invasion or compromise of the constitutional powers

of the Senate, the Congress as a whole, or the President.

11 FAM 721.4

QUESTIONS AS TO TYPE OF AGREEMENT TO BE USED

;

CONSULTATION

WITH CONGRESS

a. All legal memorandums accompanying Circular 175 requests (see 11 FAM

722.3, paragraph h) will discuss thoroughly the bases for the type of agreement rec-

ommended.

b. When there is any question whether an international agreement should be con-

cluded as a treaty or as an international agreement other than a treaty, the matter

is brought to the attention of the Legal Adviser of the Department. If the Legal Ad-

viser considers the question to be a serious one that may warrant congressional con-

sultation, a memorandum will be transmitted to the Assistant Secretary for Legisla-

tive and Intergovernmental Affairs and other officers concerned. Upon receiving

their views on the subject, the Legal Adviser shall, if the matter has not been re-

solved, transmit a memorandum thereon to the Secretary for a decision. Every prac-

ticable effort will be made to identify such questions at the earliest possible date

so that consultations may be completed in sufficient time to avoid last-minute con-

sideration.

c. Consultations on such questions will be held with congressional leaders and

committees as may be appropriate. Arrangements for such consultations shall be

made by the Assistant Secretary for Legislative and Intergovernmental Affairs and

shall be held with the assistance of the Office of the Legal Adviser and such other

offices as may be determined. Nothing in this section shall be taken as derogating

from the requirement of appropriate consultations with the Congress in accordance

with 11 FAM 723.1, paragraph e, in connection with the initiation of, and develop-

ments during negotiations for international agreements, particularly where the

agreements are of special interest to the Congress.

11 FAM 722 A

CTION

EQUIRED IN

EGOTIATION AND

IGNATURE OF

REATIES

AND

GREEMENTS

11 FAM 722.1

AUTHORIZATION REQUIRED TO UNDERTAKE NEGOTIATIONS

Negotiations of treaties, or other international agreements on matters of sub-

stance, or for their extension or revision, are not to be undertaken, nor any explor-

atory discussions undertaken with representatives of another government, until au-

thorized in writing by the Secretary or an officer specifically authorized by the Sec-

retary for that purpose. Notification of the termination of any treaty or other inter-

national agreement on matters of substance requires similar authorization.

11 FAM 722.2

SCOPE OF AUTHORIZATION

Approval of a request for authorization to negotiate a treaty or other international

agreement does not constitute advance approval of the text nor authorization to

agree upon a date for signature or to sign the treaty or agreement. Authorization

to agree upon a given date for, and to proceed with, signature must be specifically

requested in writing, as provided in 11 FAM 722.3. This applies to treaties and

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360

other agreements to be signed abroad as well as those to be signed at Washington.

Special instructions may be required, because of the special circumstances involved,

for multilateral conventions or agreements to be signed at international conferences.

11 FAM 722.3

REQUEST FOR AUTHORIZATION TO NEGOTIATE AND

OR SIGN ACTION

MEMORANDUM

a. A request for authorization to negotiate and/or sign a treaty or other inter-

national agreement takes the form of an action memorandum addressed to the Sec-

retary or other principal to whom such authority has been delegated, as appropriate,

and cleared with the Office of the Legal Adviser (including the Assistant Legal Ad-

viser for Treaty Affairs), the Office of the Assistant Secretary for Legislative and

Intergovernmental Affairs, other appropriate bureaus, and any other agency (such

as Defense, Commerce, etc.) which has primary responsibility or a substantial inter-

est in the subject matter. It is submitted through the Executive Secretariat.

b. The action memorandum may request one of the following: (1) authority to ne-

gotiate, (2) authority to sign, or (3) authority to negotiate and sign. The request in

each instance states that any substantive changes in the draft text will be cleared

with the Office of the Legal Adviser and other specified regional and/or functional

bureaus before definitive agreement is reached. Drafting offices should consult close-

ly with the Office of the Legal Adviser to insure that all legal requirements are met.

c. The action memorandum indicates what arrangements are planned as to: (1)

congressional consultation and (2) opportunity for public comment on the treaty or

agreement being negotiated, signed, or acceded to.

d. The action memorandum shall indicate: (1) whether a proposed treaty or agree-

ment embodies a commitment to furnish funds, goods, or services beyond or in addi-

tion to those authorized in an approved budget; and if so, (2) arrangements planned

or carried out concerning consultation with the Office of Management and Budget

(OMB) for such commitment.

e. The Department will not authorize such commitments without confirmation

that the relevant budget approved by the President requests or provides funds ade-

quate to fulfill the proposed commitment or that the President has made a deter-

mination to seek the required funds.

f. Where it appears that there may be obstacles to the immediate public disclosure

of the text upon its entry into force, the action memorandum shall include an expla-

nation thereof (see 11 FAM 723.2 and 11 FAM 723.3).

g. An action memorandum dealing with an agreement that has a potential for ad-

verse environmental impact should contain a statement indicating whether the

agreement will significantly affect the quality of the human environment.

h. The action memorandum is accompanied by: (1) the U.S. draft, if available, of

any agreement or other instrument intended to be negotiated; or (2) the text of any

agreement and related exchange of notes, agreed minutes, or other document to be

signed (with appropriate clearances, including the Assistant Legal Adviser for Trea-

ty affairs); and (3) a memorandum of law prepared in the Office of the Legal Ad-

viser.

i. These provisions shall apply whether a proposed international agreement is to

be concluded in the name of the U.S. Government or in the name of a particular

agency of the U.S. Government. However, in the latter case, the action memoran-

dum may be addressed to the interested Assistant Secretary or Secretaries of State,

or their designees in writing, unless such official(s) judge that consultation with the

Secretary, Deputy Secretary or an Under Secretary is necessary. (See 22 CFR

181.4.)

11 FAM 722.4

SEPARATE AUTHORIZATIONS

When authorization is sought for a particular treaty or other agreement, either

multilateral or bilateral, the action memorandum for this purpose outlines briefly

and clearly the principal features of the proposed treaty or other agreement, indi-

cates any special problems which may be encountered and, if possible, the con-

templated solutions of those problems.

11 FAM 722.5

BLANKET AUTHORIZATIONS

In general, blanket authorizations are appropriate only in those instances where,

in carrying out or giving effect to provisions of law or policy decisions, a series of

agreements of the same general type is contemplated; that is, a number of agree-

ments to be negotiated according to a more or less standard formula (for example,

Pub. L. 480 Agricultural Commodities Agreements; Educational Exchange Agree-

ments; Investment Guaranty Agreements; Weather Station Agreements, etc.) or a

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361

number of treaties to be negotiated according to a more or less standard formula

(for example, consular conventions, extradition treaties, etc.). Each request for blan-

ket authorization shall specify the office or officers to whom the authority is to be

delegated. The basic precepts under 11 FAM 722.3 and 11 FAM 722.4 apply equally

to requests for blanket authorizations. The specific terms of any blanket authoriza-

tion, i.e., that the text of any particular agreement shall be cleared by the Office

of the Legal Adviser and other interested bureaus before signature, shall be ob-

served in all cases.

11 FAM 722.6

CERTIFICATION OF FOREIGN LANGUAGE TEXT

a. Before any treaty or other agreement containing a foreign language text is laid

before the Secretary (or any person authorized by the Secretary) for signature, ei-

ther in the Department or at a post, a signed memorandum must be obtained from

a responsible language officer of the Department certifying that the foreign lan-

guage text and the English language text are in conformity with each other and that

both texts have the same meaning in all substantive respects. A similar certification

must be obtained for exchanges of notes that set forth the terms of an agreement

in two languages.

b. In exceptional circumstances the Department can authorize the certification to

be made at a post.

11 FAM 722.7

TRANSMISSION OF TEXTS TO THE SECRETARY

The texts of treaties and other international agreements must be completed and

approved in writing by all responsible officers concerned sufficiently in advance to

give the Secretary, or the person to whom authority to approve the text has been

delegated, adequate time before the date of signing to examine the text and dispose

of any questions that arise. Posts must transmit the texts to the Department as ex-

peditiously as feasible to assure adequate time for such consideration. Except as

otherwise specifically authorized by the Secretary, a complete text of a treaty or

other international agreement must be delivered to the Secretary or other person

authorized to approve the text, before any such text is agreed upon as final or any

date is agreed upon for its signature.

11 FAM 723 R

ESPONSIBILITY OF

FFICE OR

FFICER

ONDUCTING

EGOTIATIONS

11 FAM 723.1

CONDUCT OF NEGOTIATIONS

The office or officer responsible for any negotiations keeps in mind:

a. That during the negotiations no position is communicated to a foreign govern-

ment or to an international organization as a U.S. position that goes beyond any

existing authorization or instructions;

b. That no proposal is made or position is agreed to beyond the original authoriza-

tion without appropriate clearance (see 11 FAM 722.3, paragraph a);

c. That all significant policy-determining memorandums and instructions to the

field on the subject of the negotiations have appropriate clearance (see 11 FAM

722.3, paragraph a);

d. That the Secretary or other principal, as appropriate, is kept informed in writ-

ing of important policy decisions and developments, including any particularly sig-

nificantly departures from substantially standard drafts that have been evolved;

e. That with the advice and assistance of the Assistant Secretary for Legislative

and Intergovernmental Affairs, the appropriate congressional leaders and commit-

tees are advised of the intention to negotiate significant new international agree-

ments, consulted concerning such agreements, and kept informed of developments

affecting them, including especially whether any legislation is considered necessary

or desirable for the implementation of the new treaty or agreement. Where the pro-

posal for any especially important treaty or other international agreement is con-

templated, the Office of the Assistant Secretary for Legislative and Intergovern-

mental Affairs will be informed as early as possible by the office responsible for the

subjects;

f. That the interest of the public be taken into account and, where in the opinion

of the Secretary of State or his or her designee the circumstances permit, the public

be given an opportunity to comment;

g. That in no case, after accord has been reached on the substance and wording

of the texts to be signed, do the negotiators sign an agreement or exchange notes

constituting an agreement until a request under 11 FAM 722.3 for authorization to

sign has been approved and, if at a post abroad, until finally Instructed by the De-

partment to do so as stated in 11 FAM 730.3. If an agreement is to be signed in

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two languages, each language text must be cleared in full with the Language Serv-

ices Division or, if at a post abroad, with the Department before signature, as stated

in 11 FAM 722.6;

h. That due consideration is given also to the provisions of 11 FAM 723.2 through

11 FAM 723.9, 11 FAM 730.3, and 11 FAM 731 of this chapter; and

i. That in any case where any other department or agency is to play a primary

or significant role or has a major interest in negotiation of an international agree-

ment, the appropriate official or officials in such department or agency are informed

of the provisions of this subchapter.

11 FAM 723.2

AVOIDING OBSTACLES TO PUBLICATIONS AND REGISTRATION

The necessity of avoiding any commitment incompatible with the law requiring

publication (1 U.S.C. 112a) and with the treaty provisions requiring registration (see

11 FAM 750.3–3) should be borne in mind by U.S. negotiators. Although negotia-

tions may be conducted on a confidential basis, every practicable effort must be

made to assure that any definitive agreement or commitment entered into will be

devoid of any aspect which would prevent the publication and registration of the

agreement.

11 FAM 723.3

QUESTIONS ON IMMEDIATE PUBLIC DISCLOSURE

in any instance where it appears to the officer or office in the Department respon-

sible for the negotiations or to the U.S. representatives that the immediate public

disclosure upon its entry into force of an agreement under negotiations would be

prejudicial to the national security of the United States, the pertinent circumstances

shall be reported to the Secretary of State and his or her decision awaited before

any further action is taken. Where such circumstances are known before authoriza-

tion to negotiate or to sign is requested, they shall be included in the request for

authorization. All such reports and requests are to be cleared with the Office of the

Legal Adviser.

11 FAM 723.4

PUBLIC STATEMENTS

No public statement is to be made indicating that agreement on a text has been

reached, or that negotiations have been successfully completed, before authorization

is granted to sign the treaty or other agreement. If such authorization has been

granted subject to a condition that no substantive change in the proposed text is

made without appropriate clearance (see 11 FAM 722.3, paragraph a), no such pub-

lic statement is to be made until definitive agreement on the text has been reached

and such clearance has been received. Normally, such a public statement is made

only at the time a treaty or other agreement is actually signed, inasmuch as it re-

mains possible that last-minute changes will be made in the text. Any such state-

ment prior to that time must have the appropriate clearance, and the approval of

the Secretary or the Department principal who originally approved the action

memorandum request under ‘‘Circular 175 Procedure.’’

11 FAM 723.5

ENGLISH

LANGUAGE TEXT

Negotiators will assure that every bilateral treaty or other international agree-

ment to be signed for the United States contains an English-language text. If the

language of the other country concerned is one other than English, the text is done

in English and, if desired by the other country, in the language of that country. A

U.S. note that constitutes part of an international agreement effected by exchange

of notes is always in the English language. If it quotes a foreign government note,

the quotation is to be rendered in English translation. A U.S. note is not in any

language in addition to English, unless specifically authorized (with the clearance

of the Assistant Legal Adviser for Treaty Affairs). The note of the other government

concerned may be in whatever language that government desires.

11 FAM 723.6

TRANSMISSION OF SIGNED TEXTS TO ASSISTANT LEGAL ADVISER FOR

TREATY AFFAIRS

a. The officer responsible for the negotiation of a treaty or other agreement at any

post is responsible for insuring the most expeditious transmission of the signed

original text, together with all accompanying papers such as agreed minutes, ex-

changes of notes, plans, etc. (indicating full names of persons who signed), to the

Department for the attention of the Assistant Legal Adviser for Treaty Affairs; pro-

vided, that where originals are not available, accurate certified copies are obtained

and transmitted as in the case of the original. (See 11 FAM 723.7, 11 FAM 723.8,

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and 11 FAM 723.9.) The transmittal is by airgram, not by transmittal slip or oper-

ations memorandum.

b. Any officer in the Department having possession of or receiving from any source

a signed original or certified copy of a treaty or agreement or of a note or other doc-

ument constituting a part of a treaty or agreement must forward such documents

immediately to the Assistant Legal Adviser for Treaty Affairs.

11 FAM 723.7

TRANSMISSION OF CERTIFIED COPIES TO THE DEPARTMENT

When an exchange of diplomatic notes between the mission and a foreign govern-

ment constitutes an agreement or has the effect of extending, modifying, or termi-

nating an agreement to which the United States is a party, a properly certified copy

of the note from the mission to the foreign government, and the signed original of

the note from the foreign government are sent, as soon as practicable (indicating

full names of persons who signed) to the Department for attention of the Assistant

Legal Adviser for Treaty Affairs. The transmittal is by airgram, not by transmittal

slip or operations memorandum.

Likewise, if, in addition to the treaty or other agreement signed, notes related

thereto are exchanged (either at the same time, beforehand, or thereafter), a prop-

erly certified copy (copies) of the note(s) from the mission to the foreign government

are transmitted with the signed original(s) of the note(s) from the foreign govern-

ment.

In each instance, the mission retains for its files certified copies of the note ex-

changed. The U.S. note is prepared in accordance with the rules prescribed in 5

FAH–1, Correspondence Handbook. The note of the foreign government is prepared

in accordance with the style of the foreign ministry and usually in the language of

that country. Whenever practicable, arrangements are made for the notes to bear

the same date.

11 FAM 723.8

CERTIFICATION OF COPIES

If a copy of a note is a part of an international agreement, such copy is certified

by a duly commissioned and qualified Foreign Service officer either (a) by a certifi-

cation on the document itself, or (b) by a separate certification attached to the docu-

ment. A certification on the document itself is placed at the end of the document.

It indicates, either typed or rubber stamped, that the document is a true copy of

the original signed (or initialed) by (INSERT FULL NAME OF OFFICER WHO

SIGNED DOCUMENT), and it is signed by the certifying officer. If a certification

is typed on a separate sheet of paper, it briefly describes the document certified and

states that it is a true copy of the original signed (or initialed) by (FULL NAME),

and it is signed and dated by the certifying officer. The certification may be stapled

to the copy of the note.

11 FAM 723.9

PREPARATION OF COPIES FOR CERTIFICATION

For purposes of accuracy of the Department’s records and publication and reg-

istration, a certified copy must be an exact copy of the signed original. It must be

made either by typewriter (ribbon or carbon copy) or by facsimile reproduction on

white durable paper (not by the duplimat method) and must be CLEARLY LEG-

IBLE. In the case of notes, the copy shows the letterhead, the date and, if signed,

an indication of the signature or, if merely initialed, the initials which appear on

the original. It is suggested that, in the case of a note from the mission to the for-

eign government, the copy for certification and transmission to the Department be

made at the same time the original is prepared. If the copy is made at the same

time, the certificate prescribed in 11 FAM 723.8 may state that the document is a

true and correct copy of the signed original. If it is not possible to make a copy at

the same time the original is prepared, the certificate indicates that the document

is a true and correct copy of the copy on file in the mission. The word ‘‘(Copy)’’ is

not placed on the document which is being certified; the word ‘‘(Signed)’’ is not

placed before the indication of signatures. Moreover, a reference to the transmitting

airgram, such as ‘‘Enclosure 1 to Airgram No. 18 (ect.)’’, is not placed on the cer-

tified document. The identification of such a document as an enclosure to an

airgram may be typed on a separate slip of paper and attached to the document,

but in such a manner that it may be easily removed without defacing the document.

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11 FAM 724 T

RANSMISSION OF

NTERNATIONAL

GREEMENTS OTHER THAN

REATIES

ONGRESS

: C

OMPLIANCE WITH THE

ASE

-Z

ABLOCKI

All officers will be especially diligent in cooperating to assure compliance with

Pub. L. 92–403 ‘‘An Act to require that international agreements other than trea-

ties, hereafter entered into by the United States, be transmitted to the Congress

within sixty days after the execution thereof.’’ That Act, popularly known as the

Case-Zablocki Act, approved August 22, 1972 (86 Stat. 619; 1 U.S.C. 112b), provides

as follows:

The Secretary of State shall transmit to the Congress the text of any inter-

national agreement other than a treaty, to which the United States is a party

as soon as practicable after such agreement has entered into force with respect

to the United States but in no event later than sixty days thereafter. However,

any such agreement the immediate public disclosure of which would in the opin-

ion of the President, be prejudicial to the national security of the United States

shall not be so transmitted to the Congress but shall be transmitted to the

Committee on Foreign Relations of the Senate and the Committee on Foreign

Affairs of the House of Representatives under an appropriate injunction of se-

crecy to be removed only upon due notice from the President.

11 FAM 725 P

UBLICATION OF

REATIES AND OTHER

NTERNATIONAL

GREEMENTS OF

THE

NITED

TATES

The attention of all officers is directed to the requirements of the Act of Septem-

ber 23, 1950 (64 Stat. 979; 1 U.S.C. 112a), which provides as follows:

The Secretary of State shall cause to be compiled, edited, indexed, and pub-

lished, beginning as of 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. The said United States Treaties and Other International Agreements shall

be legal evidence of the treaties, international agreements other than treaties,

and proclamations by the President of such treaties and agreements, therein

contained, in all the courts of the United States, the several States, and the

Territories and insular possessions of the United States.

11 FAM 726

THROUGH

729

UNASSIGNED

11 FAM 730

UIDELINES FOR

ONCLUDING

NTERNATIONAL

GREEMENTS

11 FAM 730.1

METHOD OF CONCLUDING BILATERAL AND MULTILATERAL AGREEMENTS

An agreement may be concluded (entered into) by the process of bilateral negotia-

tions which result either in the signing of a single instrument in duplicate or in ex-

change of diplomatic notes, or by the process of multilateral negotiations, usually

at an international conference to which the governments concerned send official del-

egations for the purpose of formulating and signing an instrument of agreement.

11 FAM 730.2

BILATERAL TREATIES AND AGREEMENTS

11 FAM 730.2–1 Negotiation and Background Assistance

Whenever the negotiation of a new international agreement is under consider-

ation, the Department office or the post having primary responsibility informs the

Legal Adviser and may, if considered necessary, request background material and

advice regarding relevant provisions in existing treaties and agreements, the gen-

eral treaty relations of this Government with the government or governments con-

cerned, and other pertinent information.

11 FAM 730.2–2 Role of Office of the Legal Adviser

a. Legal Review of Draft Agreements.—As soon as tentative provisions for an

agreement are considered or drafted, the Office of the Legal Adviser is requested

to make available the services of an attorney-adviser to insure that the agreement

is properly drafted and agreed policy is expressed clearly and fully. The Office of

the Legal Adviser prepares a draft in the first instance upon the request of another

office.

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b. Legal Clearance Required.—Any draft of a proposed treaty or agreement,

or any outgoing correspondence regarding the negotiation, signature, and ratifica-

tion or approval, as well as the existence, status, and application, of any inter-

national agreement to which the United States is or may become a party, is cleared

with the Office of the Legal Adviser and with other appropriate bureaus or offices

and, as appropriate, with any other agency concerned with the reply.

11 FAM 730.3

INSTRUCTIONS TO NEGOTIATORS

When an agreement is to be concluded at a foreign capital, the Department des-

ignates the United States negotiator or negotiators, and the negotiator or nego-

tiators are given appropriate instructions. If the agreement to be negotiated is a

treaty which will be referred to the Senate, the Secretary of State may at some time

prior to or during the negotiations issue or request the President to issue or request

the President to issue a ‘‘full power’’ (see 11 FAM 732) constituting formal author-

ization for the United States negotiators to sign the agreement. Such a ‘‘full power’’

is not customary with respect to an international agreement other than a treaty.

The receipt or possession of a ‘‘full power’’ is never to be considered as a final au-

thorization to sign. That authorization is given by the Department by a written or

telegraphic instruction, and no signature is affixed in the absence of such instruc-

tion. If the proposal for an agreement originates with the United States, the U.S.

negotiators as a rule furnish a tentative draft of the proposed agreement for submis-

sion to the other government for its consideration. The negotiators submit to the De-

partment any modification of the draft or any counterproposal made by the other

government and await instructions from the Department. If the original proposal

emanates from a foreign government, the mission forwards the proposal to the De-

partment and awaits its instructions.

11 FAM 730.4

PREPARATION OF TEXTS FOR SIGNATURE

If an agreement is to be signed at a post abroad as a single instrument (in dupli-

cate), the engrossing (preparation of the documents to be signed) is customarily done

in the foreign ministry on paper supplied by it, along with a binding and ribbons

to tie the pages in place. However, the mission may lend assistance if the foreign

ministry so desires. There is no universal standard as to the kind or size of paper

which must be used (each foreign ministry has its own ‘‘treaty paper’’), and the texts

may be engrossed either by typing or by printing. For every bilateral agreement

there must be two originals, one for each government. Each original must embody

the full text of the agreement in all the languages in which the agreement is to be

signed, and must be exactly the same as the other original subject only to the prin-

ciple of the ‘‘alternat.’’

In the case of an agreement effected by exchange of notes, the U.S. notes are pre-

pared in English and in accordance with 5 FAM 220 through 224 and the rules pre-

scribed in 5 FAH–1, Correspondence Handbook. The note of the foreign government

is prepared in accordance with the style of the foreign ministry and usually in the

language of that country. Whenever practicable, arrangements are made for the

notes to bear the same date.

11 FAM 730.5

ARRANGEMENT OF TEXTS AND PRINCIPLE OF THE ALTERNAT

11 FAM 730.5–1 Arrangement of Texts

When English and a language other than English are both used, the texts in the

two languages are placed (a) in ‘‘tandem’’ fashion, that is, with one text following

the other (the tandem procedure is the most widely used as it is the most expedi-

tious), or (b) in parallel, vertical columns on the same page, the columns being ap-

proximately of equal width, or (c) on opposite facing pages of the document the en-

tire width of the type or printed space on the page.

If the two languages are placed ‘‘tandem’’ fashion, the English text is placed first

in the U.S. original, and conversely in the foreign government’s original.

If parallel columns are used, the English text is placed in the left column of each

page in the original to be retained by the United States, and the foreign text ap-

pears in the right column. In the other original, to be retained by the foreign gov-

ernment, the foreign text appears in the left column, and the English text in the

right column.

If the two languages are placed on opposite facing pages of the document, the

English text occupies the left-hand page and the foreign text the right-hand page

in the U.S. original, and conversely in the foreign government’s original. If either

the ‘‘tandem’’ or the ‘‘opposite facing page’’ style is used, the concluding part (usually

beginning ‘‘IN WITNESS WHEREOF,’’ ‘‘DONE,’’ etc.) should appear engrossed in

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parallel columns on the page on which the signatures will appear, so that only one

set of signatures is required for each separately bound document (see 11 FAM 730

Exhibit 730.5–1, page 1). If parallel signature columns are not feasible, the conclud-

ing paragraphs can be placed ‘‘tandem’’ fashion on the page on which the signatures

appear (see 11 FAM 730 Exhibit 730.5–1, page 2).

If an oriental text is one which, from the occidental viewpoint, reads from back

to front, it may be possible to join the two texts in a single binding so that the sig-

natures appear, roughly speaking, in the center of the document. If this is not fea-

sible, the negotiators should seek instructions from the Department.

11 FAM 730.5–2 Arrangement of Names and Signatures; Use of Titles

In the original to be retained by the United States, the United States is named

first in both the English and foreign texts, wherever the names of the countries

occur together conjunctively or disjunctively; and the signature of the pleni-

potentiary of the United States appears on the left and that of the foreign pleni-

potentiary on the right of the original to be retained by the United States. Con-

versely, throughout both of the language texts of the original to be retained by the

foreign government, that government is named first and its plenipotentiary’s signa-

ture appears to the left of the signature of the U.S. plenipotentiary. The position

of full sentences, paragraphs, or subparagraphs in the text is never transposed in

the alternat procedure.

The general practice and preference of the Department of State is not to use titles

along with signatures, especially where the President or the Secretary of State

signs. However, if preferred by the other party or parties concerned, titles may be

typed BELOW where each will sign (with ample space allowed for the signature).

11 FAM 731 C

ONFORMITY OF

EXTS

After the documents have been engrossed on the basis of agreed texts, and before

the signing of the agreement, the negotiators or other responsible officers on each

side make sure that the texts in both originals of the engrossed agreement are in

exact conformity with each other and with the texts in the drafts agreed to, and

especially that where a foreign language is included that text and the English text

are in conformity in all substantive respects. Prior to engrossing it should have been

determined that the foreign-language text is essentially (that is, as a matter of sub-

stance) in accord with the English text, and that it has received the clearance of

the Department as required in 11 FAM 722.6.

11 FAM 732 E

XCHANGE OR

XHIBITION OF

ULL

OWERS

Each representative who is to sign a treaty is furnished a full power signed by

the head of state, head of government, or minister for foreign affairs. More than one

representative should be named in a single instrument of full power. On occasion,

formal full powers may be (but customarily are NOT in U.S. practice) issued for the

signing of certain agreements other than treaties. When issued, the full power is

formal evidence of the authority of the representative to sign on behalf of the rep-

resentative’s government. It names the representative, with title, and gives a clear

indication of the particular instrument of agreement which the representative is en-

titled to sign. Full powers for representatives of the United States are prepared by

the Office of the Assistant Legal Adviser for Treaty Affairs, and generally are signed

by the Secretary or Acting Secretary of State. On occasion, full powers are signed

by the President.

If the agreement itself requires the exchange of full powers, they are exchanged.

If not, they may be either exchanged or exhibited by the representatives on the occa-

sion of signing the agreement, as may be preferred by the foreign representative.

If a full power is required, the U.S. representative shall NOT proceed to sign the

treaty until the full power is in hand, or the Department specially instructs other-

wise. If exchanged, the original full power of the foreign representative is forwarded

to the Department with the U.S. original of the signed agreement. If the representa-

tives retain the original of the respective full powers, each representative should

supply the other representative with an offset copy or a certified copy of the full

power.

11 FAM 733 S

IGNATURE AND

EALING

When the engrossing of a treaty or other international agreement which is to be

signed as a single instrument has been completed, mutually convenient arrange-

ments for its signature are made by the host government. In the case of treaties,

the signatures of the representatives may be accompanied by their respective seals,

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367

ribbons being fastened in the seals and binding the documents. The same procedure

may be followed for other agreements signed as single instruments. It is not essen-

tial that seals be affixed, unless the agreement specifically so requires (the pref-

erence of the Department of State is NOT to use seals). The representative’s per-

sonal seal, if available, is used when seals accompany the signatures, except that

if the other government concerned prefers official seals, the seal of the mission may

be used.

(NOTE. A personal seal may consist of a signet ring with initial(s) or family crest,

written initials, etc.)

11 FAM 734 E

XCHANGE OF

ATIFICATIONS

11 FAM 734.1

TIME AND PLACE OF EXCHANGE

It is customary for a treaty to contain a simple provision to the effect that the

instruments of ratification shall be exchanged as soon as possible at a designated

capital, and that the treaty shall enter into force on the date of such exchange or

at the expiration of a specified number of days or months following the date of ex-

change. (As all treaties signed on the part of the United States are subject to ratifi-

cation by and with the advice and consent of the Senate, and as the time required

for action on any particular treaty cannot be foreseen, it is preferable that provision

is made in the treaty that the instruments of ratification are to be exchanged ‘‘as

soon as possible’’ rather than within a specified period.)

11 FAM 734.2

EFFECTING THE EXCHANGE

In exchanging instruments of ratification the representative of the United States

hands to the representative of the foreign government a duplicate original of the

President’s instrument of ratification. In return, the representative of the foreign

government hands to the representative of the United States the instrument of rati-

fication executed by the head or the chief executive of the foreign government. A

protocol, sometimes called ‘‘Protocol of Exchange of Ratifications’’ or proce

s-verbal,

attesting the exchange is signed by the two representatives when the exchange is

made. No full power is required for this purpose. The protocol of exchange is signed

in duplicate originals, one for each government, and the principle of the alternat is

observed as in the treaty. Before making the exchange and signing the proce

s-verbal

or protocol of exchange the diplomatic representative of the United States must be

satisfied that the ratification of the foreign government is an unqualified ratifica-

tion, or subject only to such reservations or understandings as have been agreed to

by the two governments.

11 FAM 734.3

NOTIFICATION OF DATE OF EXCHANGE

In all cases, but particularly in those in which the treaty enters into force on the

day of the exchange, it is essential that the mission notify the Department by tele-

gram when arrangements have been completed for the exchange, and also when the

exchange actually takes place. By the first pouch after the exchange takes place, if

possible, the mission forwards to the Department the instrument of ratification of

the foreign government and the U.S. Government’s original of the signed proce

verbal or protocol of exchange. The Department then will take such steps as may

be necessary to have the proclamation of the treaty executed by the President.

[11 FAM 730

EXHIBIT

730.5–1

OMITTED

]

11 FAM 735

THROUGH

739

UNASSIGNED

11 FAM 740

ULTILATERAL

REATIES AND

GREEMENTS

11 FAM 740.1

GENERAL PROCEDURES

The procedures for the making of multilateral agreements are in many respects

the same as those for the making of bilateral agreements; for example, the general

requirements in regard to full powers, ratification, proclamation, and publication.

This subchapter covers those procedures which are at variance with bilateral proce-

dures.

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11 FAM 740.2

NEGOTIATION

11 FAM 740.2–1 Function of International Conference

The international conference is the device usually employed for the negotiation of

multilateral agreements. The greater the number of countries involved, the greater

the necessity for such a conference. If only three or four countries are involved, it

may be convenient to carry on the preliminary negotiations through correspondence

and have a joint meeting of plenipotentiaries to complete the negotiations and to

sign the document.

11 FAM 740.2–2 Invitation

Traditionally, the international conference was convened by one government’s ex-

tending to other interested governments an invitation (acceptance usually assured

beforehand) to participate, the host government bearing most, if not all, of the ex-

pense incident to the physical aspects of the conference. This is still often the prac-

tice, but increasing numbers of conferences have been convened under the auspices,

and at the call of international organizations.

11 FAM 740.2–3 Statement of Purpose

When a call is made or invitations are extended for a conference for the formula-

tion of a multilateral agreement, it is customary for a precise statement of purpose

to accompany the call or the invitations. Sometimes, the invitation is also accom-

panied by a draft agreement to be used as a basis for negotiations. If the conference

is called under the auspices of an international organization, the precise statement

of purpose or the draft agreement may be prepared in preliminary sessions of the

organization or by the secretariat of the organization.

11 FAM 740.2–4 Instructions to Negotiators

The U.S. delegation to a conference may be comprised of one or more representa-

tives. As a rule, the U.S. delegation is furnished written instructions by the Depart-

ment prior to the conference in the form of a position paper for the U.S. delegation

cleared with the Secretary or an officer specifically authorized by him or her and

other appropriate Department officers for that purpose, under the procedures de-

scribed in 11 FAM 722.3. The Office of the Legal Adviser in all instances reviews

drafts of international conventions to be considered in meetings of an international

organization of which the United States is a member; when necessary, it also pro-

vides legal assistance at international conferences and meetings.

11 FAM 740.2–5 Final Acts of Conference

The ‘‘Final Act’’ of a conference must not contain international commitments. A

Final Act must be limited to such matters as a statement or summary of the pro-

ceedings of the conference, the names of the states that participated, the organiza-

tion of the conference and the committees established, resolutions adopted, the

drafts of international agreements formulated for consideration by governments con-

cerned, and the like. If an international agreement is to be opened for signature at

the close of the conference, a text thereof may be annexed to the Final Act but must

not be incorporated in the body thereof; the text to be signed must be prepared and

bound separately for that purpose. Where a Final Act appears to embody inter-

national commitments, the U.S. representative reports the same to the Department

and awaits specific instruments before taking any further action.

11 FAM 741 O

FFICIAL AND

ORKING

ANGUAGES

a. General Procedures

The working languages of the conference and the official languages of the con-

ference documents are determined by the conference. A conference does not nec-

essarily adopt all of the same languages for both purposes. It is customary and pref-

erable for all the officials’ languages in which the final document is prepared for

signature to be designated as having equal authenticity. It is possible, however, for

the conference to determine, because of special circumstances, that in the event of

dispute one of the languages is to prevail and to include in the text of the agreement

a provision to that effect. Before a U.S. delegation concurs in any such proposal, it

must request instructions from the Department.

b. English Language Text

Negotiators will use every practicable effort to assure that an English-language

text is part of the authentic text of any multilateral treaty negotiated for the United

States. Where any question exists on this subject, the negotiators should seek fur-

ther instructions.

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369

11 FAM 742 E

NGROSSING

11 FAM 742.1

LANGUAGE OR LANGUAGES USED IN TEXTS

The multilateral agreement drawn up at an international conference is engrossed

for signature in the official language or language adopted by the conference. (See

11 FAM 741.) The engrossing ordinarily will be done by the conference secretariat.

11 FAM 742.2

PRINCIPLE OF THE ALTERNAT

The principle of the alternat (see 11 FAM 730.5) does not apply in the case of

a multilateral agreement, except in the remote case when an agreement between

three or four governments is prepared for signature in the language of all the sig-

natories and each of those governments is to receive a signed original of the agree-

ment. Customarily, a multilateral agreement is prepared for signature in a single

original, comprising all the official languages. That original is placed in the custody

of a depositary (either a government or an international organization) which fur-

nishes certified copies to all governments concerned.

11 FAM 742.2–1 Arrangement of Texts

The arrangement of multilateral agreement texts varies, depending largely on the

number of languages used. As in the case of bilateral agreements, however, the

basic alternatives in the case of multilateral agreements are ‘‘tandem,’’ parallel col-

umns, or facing pages, as follows:

a. Tandem

If an agreement is to be signed in two languages, and especially if signed in three

or more languages, the texts may be arranged in tandem style, that is, one complete

text following the other. This allows readily for any number of official texts; the tan-

dem style precedent of the Charter of the United Nations is followed for the prepa-

ration of agreements formulated under the auspices of the United Nations. It is de-

sirable, whenever practicable, that the concluding part of each text be placed with

the concluding part of each of the other texts in parallel columns on the page on

which the first of the signatures appears, although the tandem arrangement de-

scribed at the end of 11 FAM 742.2–1c (below) can be used.

b. Parallel Columns

If an agreement is to be signed in only two languages, the traditionally preferred

method of arrangement of the texts has been parallel, vertical columns. This method

may be used also if only three languages are used, but the three columns are nec-

essarily so narrow that the method has been rarely used in such cases. When there

are four official languages, however, it is possible to use the parallel column method

by placing two of the language texts on a left-hand page and the other two language

texts on the facing right-hand page; this method has been used often and to good

advantage in various inter-American agreements with English, Spanish, French,

and Portuguese. If any of the languages is oriental, the parallel column method may

be inexpedient and one of the other methods may be necessary.

c. Facing Pages

If an agreement is to be signed in only two languages, and circumstances make

it necessary or desirable, the facing page method may be used for engrossing the

texts for signature, so that one of the language texts will be on a left-hand page

and the other will be on the facing right-hand page. When this method is used, it

is desirable that at least the concluding part (usually beginning ‘‘IN WITNESS

WHEREOF,’’ ‘‘DONE,’’ etc.) be engrossed in parallel columns on the page at the end

of the texts in both languages so that only one set of signatures is required. If par-

allel columns are not feasible, the concluding paragraphs can be placed tandem

fashion (one language text after another) on the page at the end of the texts in both

languages.

11 FAM 742.2–2 Arrangement of Names and Signatures

The arrangement of names and signatures, although it may seem a minor matter,

sometimes presents difficulties in the case of multilateral agreements. There may

be variations of arrangements, depending on particular factors, but the arrangement

most generally used is alphabetical according to the names of the countries con-

cerned. An alphabetical listing, however, presents the further question, even when

there are only two languages, of what language is to be used in determining the

arrangement. It is a common practice to use the language of the host government

or for an agreement formulated under the auspices of an international organization,

to follow the precedents established by that organization. It is possible, in the event

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370

that agreement could not be reached regarding the arrangement of names of coun-

tries and signatures of plenipotentiaries, to have a drawing of lots, a device seldom

used. In any event, the question is one to be determined by the conference.

11 FAM 742.3

CONFORMITY OF TEXTS

It is the primary responsibility of the delegations, acting in conference, to deter-

mine the conformity of the agreement texts which are to be signed. However, the

conference secretariat has a responsibility for checking the texts carefully to insure

that, when put in final form for signature, the texts are in essential conformity.

11 FAM 743 F

ULL

OWERS

In the case of a multilateral agreement drawn up at an international conference,

this Government customarily (almost invariably, in the case of a treaty) issues to

one or more of its representatives at the conference an instrument of full power au-

thorizing signature of the agreement on behalf of the United States. In some in-

stances, issuance of the full power is deferred until it is relatively certain that the

agreement formulated is to be signed for the United States. (See 11 FAM 732.) Ordi-

narily, that full power is presented by the representatives to the secretary general

of the conference upon arrival of the delegation at the conference site. It may be

submitted in advance of arrival, but usually that is not necessary. When the con-

ference has formally convened, it usually appoints a credentials committee, to which

all full powers and other evidence of authorization are submitted for examination.

The full powers and related documents are retained by the credentials committee

or the secretary general until the close of the conference. At the close of the con-

ference, the full powers, related documents, and the signed original of the agree-

ment are turned over to the government or the international organization des-

ignated in the agreement as the depositary authority, to be placed in its archives.

11 FAM 744 S

IGNATURE AND

EALING