Exiting Congressional-Executive Agreements

Commentators have argued that, even if the president has the unilateral authority to terminate Article II treaties concluded with the Senate’s advice and consent, the president lacks the unilateral authority to terminate “congressional-executive agreements” concluded with majority congressional approval, such as the North American Free Trade Agreement (NAFTA). This Article challenges that claim. If one accepts a presidential authority to terminate Article II treaties, this Article contends, there is no persuasive reason to conclude differently with respect to congressional-executive agreements. Congressional-executive agreements have become largely interchangeable with Article II treaties as a matter of domestic law and practice. For example, either instrument can be used to address matters relating to international commerce and trade. Moreover, while presidents cannot unilaterally terminate statutes, congressional-executive agreements are not mere statutes. They are, like Article II treaties, binding international instruments that can be concluded by the United States only through presidential action. These agreements also typically contain withdrawal clauses similar to those contained in Article II treaties, which presidents have long invoked unilaterally, and Congress has never indicated that presidents have less withdrawal authority for such agreements. Indeed, in its trade legislation, Congress appears to have accepted that presidents may invoke such clauses unilaterally

Self-Execution and Treaty Duality

The Supremacy Clause of the U.S. Constitution states that, along with the Constitution and laws of the United States, treaties made by the United States are part of the supreme Law of the Land. At least since the Supreme Court\u27s 1829 decision in Foster v. Neilson, however, it has been understood that treaty provisions are enforceable in U.S. courts only if they are self-executing. The legitimacy and implications of this self-execution requirement have generated substantial controversy and uncertainty among both courts and commentators. This Article attempts to clear up some of the conceptual confusion relating to the self-execution doctrine and, in the process, better explain the contemporary practice of the courts and political branches relating to treaty enforcement. To that end, the Article makes three claims. First, the Supremacy Clause does not by itself tell us the extent to which treaties should be judicially enforceable. Second, the relevant intent in discerning self-execution is the intent of the U.S. treatymakers (that is, the President and Senate), not the collective intent of the various parties to the treaty. Third, even if treaties and statutes have an equivalent status in the U.S. legal system in the abstract, there are important structural and functional differences between them that are relevant to judicial enforceability. These three claims are interconnected in that each of them reflects the fact that treaties have a dual nature, operating both within the domain of international politics as well as within the domain of law, a feature that is in turn relevant to the scope of their domestic judicial enforceability. The three claims are also complementary, in that each of them is best understood along with the other two, and together they present a relatively coherent explanation for the precedent and practice in the area. The Article concludes by discussing how the Supreme Court\u27s recent decision in Medellin v. Texas, despite certain ambiguities, is generally consistent with the three claims

Foreign Officials and Sovereign Immunity in U.S. Courts

The Foreign Sovereign Immunities Act (FSIA) provides that foreign states shall be immune from the jurisdiction of U.S. courts unless the suit falls within a specified statutory exception to immunity. There is currently a conflict among the federal circuit courts over whether suits against individual foreign officials are covered by the FSIA. If such suits are not covered by the FSIA, additional questions are raised concerning a possible common law immunity for foreign officials. This Insight describes both the conflict and the additional questions

U.S. War Powers and the Potential Benefits of Comparativism

There is no issue of foreign relations law more important than the allocation of authority over the use of military force. This issue is especially important for the United States given the frequency with which it is involved in military activities abroad. Yet there is significant uncertainty and debate in the United States over this issue — in particular, over whether and to what extent military actions must be authorized by Congress. Because U.S. courts in the modern era have generally declined to review the legality of military actions, disputes over this issue have had to be resolved, as a practical matter, through the political process. For those who believe that it is important to have legislative involvement in decisions to use force, the political process has not proven to be satisfactory: presidents have often used military force without obtaining congressional approval, and Congress generally has done little to resist such presidential unilateralism. The United States is not the only country to struggle with regulating the domestic authority to use military force. This issue of foreign relations law is common to constitutional democracies, and nations vary substantially in how they have addressed the issue. Whether and to what extent such comparative materials should inform the interpretation or revision of U.S. law presents a complicated set of questions that are affected in part by one’s legal methodology and also by how the comparative materials are being invoked. This Chapter begins by describing the exercise of war powers authority in the United States, both before and after World War II, as well as some of the limitations on congressional and judicial checks on presidential uses of military force. It then considers the potential value of studying the war powers law and practice of other countries, as well some of the reasons to be cautious about relying on such comparative materials

The United States, Israel, and Unlawful Combatants

This essay considers how members of a terrorist organization should be categorized under international law when the organization is engaged in an armed conflict with a nation. The proper categorization can have significant implications for the nation’s authority under both international and domestic law to subject members of a terrorist organization to military targeting and detention. As a result of judicial decisions, Israel ostensibly follows a two category approach, pursuant to which anyone who is not a lawful combatant, including a member of a terrorist organization, is a civilian. The United States, by contrast, currently follows a three category approach, whereby members of a terrorist organization can be considered “unlawful combatants” and thus treated as legally distinct from civilians. Although the two category approach may seem at first glance to be the most protective for civil liberties, it is not clear that this is the case. If a conflict with a terrorist organization is pushed into the civilian category, it is very likely that this category will be stretched in order to accommodate the security needs of the nation. The net result may be a reduction in protection for true non-combatants. While the three category approach is less anchored in existing treaties than the two category approach, it allows for a more realistic description of how members of a terrorist organization operate. Moreover, depending on how it is defined, the third category could contain significant substantive and procedural protections that are similar to those available under the two category approach

The United States and Human Rights Treaties: Race Relations, the Cold War, and Constitutionalism

The United States prides itself on being a champion of human rights and pressures other countries to improve their human rights practices, and yet appears less willing than other nations to embrace international human rights treaties. Many commentators attribute this phenomenon to the particular historical context that existed in the late 1940s and early 1950s when human rights treaties were first being developed. These commentators especially emphasize the race relations of the time, noting that some conservatives resisted the developing human rights regime because they saw it as an effort by the federal government to extend its authority to address racial segregation and discrimination in the South. As this essay explains, the guarded and qualified U.S. relationship with human rights treaties stems not only from a particular moment in history but also is a product of more enduring, and less obviously problematic, features of the U.S. constitutional system

Treaty Signature

This chapter is a contribution to The Oxford Guide to Treaties (Duncan Hollis, ed., Oxford University Press, forthcoming 2012). Under international law, in order for a State to become a party to a treaty, it must express its consent to be bound by the treaty. Such consent can be expressed in a variety of ways, including through signature of the treaty by a proper representative of the State. Under modern treaty practice, however, States often express their consent to be bound by a separate act of ratification that is carried out after signature. When a treaty is subject to discretionary ratification after signature, the signature is referred to as a \u27simple signature,\u27 whereas a signature that indicates consent to be bound is referred to as a \u27definitive signature\u27. Part I of the chapter considers why States often prefer simple signature subject to ratification in lieu of other methods of joining a treaty. Part II discusses the international legal consequences of a simple signature. Part III reviews the process by which a State can terminate its signatory obligations. The chapter concludes with a brief consideration of the strategic issues raised by the ability of States to decide not to ratify a treaty after signature

Unratified Treaties, Domestic Politics, and the U.S. Constitution

Under contemporary treaty practice, a nation\u27s signature of a treaty typically does not make the nation a party to the treaty. Rather, nations become parties to treaties through an act of ratification or accession, which sometimes occurs long after signature. Nevertheless, Article 18 of the Vienna Convention on the Law of Treaties, which many commentators regard as reflecting customary international law, provides that when a nation signs a treaty it is obligated to refrain from actions that would defeat the object and purpose of the treaty until such time as it makes clear its intent not to become a party to the treaty. Some commentators further claim that this object and purpose obligation means that a nation that has signed a treaty is prohibited either from violating the treaty altogether or from violating the treaty\u27s core or important provisions. Attaching legal obligations to the signing of a treaty, however, poses a constitutional issue for the United States because the U.S. Constitution divides the treaty power between the President and Senate, whereas only the President and his agents are involved in the signing of treaties. This constitutional issue has broad significance because, for a variety of political and other reasons, the United States often signs but fails to ratify treaties. The constitutional issue is not eliminated by the president\u27s authority to conclude sole executive agreements, since both constitutional structure and historical practice suggest that this authority is significantly narrower than the power of the President and Senate to jointly conclude treaties. The drafting history of Article 18, however, offers a partial solution to this difficulty, since it indicates that the object and purpose obligation was intended to prohibit only actions that would substantially undermine the parties\u27 ability to comply with or benefit from a treaty after ratification, an obligation that has little relevance to the treaties for which signing obligations would be most constitutionally problematic

A State Preferences Account of Customary International Law Adjudication

The standard account today of customary international law (CIL) is that it arises from the widespread and consistent practice of states followed out of a sense of legal obligation. Although commonly recited, this account is plagued by evidentiary, normative, and conceptual difficulties, and it has been subjected to increasing criticism in recent years. This paper posits a different account of CIL, considered from the perspective of international adjudication. A fundamental problem with much of the theorizing about CIL, the paper contends, is that it fails to identify which decisionmaker it has in mind. Instead, the discussion proceeds as if CIL existed in the abstract without any particular human entity to interpret and apply it. The application of CIL by an international adjudicator is best understood, this chapter contends, as an effort to determine the preferences of the relevant community of states concerning the norms that should apply in the absence of a controlling treaty. Unlike the standard view of CIL, this state preferences account recognizes an element of judgment and creativity in determining the content of CIL, somewhat akin to the judicial development of Anglo-American common law. Understanding the adjudication of CIL in this way, the paper contends, avoids many of the difficulties surrounding the standard account of CIL

Clear Statement Rules and Executive War Powers

This article is based on a presentation at the Annual Federalist Society National Student Symposium on Law and Public Policy that explored the theme of separation of powers in American constitutionalism. The scope of the President’s independent war powers is notoriously unclear, and courts are understandably reluctant to issue constitutional rulings that might deprive the federal government as a whole of the flexibility needed to respond to crises. As a result, courts often look for signs that Congress has either supported or opposed the President’s actions and rest their decisions on statutory grounds. There have been both liberal and conservative claims about the potential role of a clear statement requirement in the context of executive war powers. The author concludes that what this analysis ultimately suggests is that deciding issues of executive war powers requires contextual and pragmatic judgment rather than resort to abstract classifications, whether they are liberal or conservative in character, something that Justice Jackson recognized in his justifiably famous \u27Youngstown\u27 concurrence