Curtailing tax treaty overrides: A call to action

University of Pittsburgh Law Review

Volumn 62, Issue 4, 2001, Pages 677-713

  Infanti, Anthony C ^a  

^a NONE

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EID: 0347142203     PISSN: 00419915     EISSN: None     Source Type: Journal    
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References (304)

1. OLIVER WENDELL HOLMES, The Path of the Law, in COLLECTED LEGAL PAPERS 167, 187 (1920).
2. HARRY G. GOUREVITCH, TAX TREATIES: THE LEGISLATIVE OVERRIDE PROBLEM, CONG. RESEARCH SERV. REP. NO. 93-353 S (1993), available at LEXIS 93 TNI 172-15.
3. 524 U.S. 417 (1998).
4. International Double Taxation: Hearing on H.R. 10,165 Before the House Comm. on Ways and Means, 71st Cong. 4 (1930) (statement of A. W. Mellon, Secretary of the Treasury), reprinted in STAFF OF JOINT COMM. ON INTERNAL REVENUE TAXATION, 87TH CONG., 1 LEGISLATIVE HISTORY OF UNITED STATES TAX CONVENTIONS 18 (Comm. Print 1962) [hereinafter Hearing on International Double Taxation].
5. International Double Taxation: Hearing on H.R. 10,165 Before the House Comm. on Ways and Means, 71st Cong. 4 (1930) (statement of A. W. Mellon, Secretary of the Treasury), reprinted in STAFF OF JOINT COMM. ON INTERNAL REVENUE TAXATION, 87TH CONG., 1 LEGISLATIVE HISTORY OF UNITED STATES TAX CONVENTIONS 18 (Comm. Print 1962) [hereinafter Hearing on International Double Taxation].
6. International Double Taxation: Hearing on H.R. 10,165 Before the House Comm. on Ways and Means, 71st Cong. 4 (1930) (statement of A. W. Mellon, Secretary of the Treasury), reprinted in STAFF OF JOINT COMM. ON INTERNAL REVENUE TAXATION, 87TH CONG., 1 LEGISLATIVE HISTORY OF UNITED STATES TAX CONVENTIONS 18 (Comm. Print 1962) [hereinafter Hearing on International Double Taxation].
7. Double taxation occurs when the same income is subject to tax in two different countries. For example, one country may assert taxing jurisdiction over certain income on the basis of the residence of the taxpayer who received it while another country may assert taxing jurisdiction over the same income on the basis of its source. See AM. LAW INST., FEDERAL INCOME TAX PROJECT: INTERNATIONAL ASPECTS OF UNITED STATES INCOME TAXATION II: PROPOSALS ON UNITED STATES INCOME TAX TREATIES 5 (1992).
8. Hearing on International Double Taxation, supra note 4, at 4, reprinted in STAFF OF JOINT COMM. ON INTERNAL REVENUE TAXATION, 87TH CONG., 1 LEGISLATIVE HISTORY OF UNITED STATES TAX CONVENTIONS 18 (Comm. Print 1962). The alternative considered was the enactment of a tax regime under which non-U.S. persons would be exempt from tax on all income except income from (1) a business, trade, or profession carried on in the United States through a permanent establishment; (2) compensation for personal services rendered in the United States; and (3) income derived from real property located in the United States, rentals and royalties therefrom, gains from the sale or other disposition thereof, and interest on obligations (other than those of a corporation), secured by such property. Id. at 3-4, reprinted in STAFF OF JOINT COMM. ON INTERNAL REVENUE TAXATION, 87TH CONG., 1 LEGISLATIVE HISTORY OF UNITED STATES TAX CONVENTIONS 17-18 (Comm. Print 1962). Application of this regime was conditioned on the enactment of a reciprocal regime by the non-U.S. person's country of residence. See infra note 62 for a discussion of a similar, more recent proposal.
9. Hearing on International Double Taxation, supra note 4, at 4, reprinted in STAFF OF JOINT COMM. ON INTERNAL REVENUE TAXATION, 87TH CONG., 1 LEGISLATIVE HISTORY OF UNITED STATES TAX CONVENTIONS 18 (Comm. Print 1962). The alternative considered was the enactment of a tax regime under which non-U.S. persons would be exempt from tax on all income except income from (1) a business, trade, or profession carried on in the United States through a permanent establishment; (2) compensation for personal services rendered in the United States; and (3) income derived from real property located in the United States, rentals and royalties therefrom, gains from the sale or other disposition thereof, and interest on obligations (other than those of a corporation), secured by such property. Id. at 3-4, reprinted in STAFF OF JOINT COMM. ON INTERNAL REVENUE TAXATION, 87TH CONG., 1 LEGISLATIVE HISTORY OF UNITED STATES TAX CONVENTIONS 17-18 (Comm. Print 1962). Application of this regime was conditioned on the enactment of a reciprocal regime by the non-U.S. person's country of residence. See infra note 62 for a discussion of a similar, more recent proposal.
10. Hearing on International Double Taxation, supra note 4, at 4, reprinted in STAFF OF JOINT COMM. ON INTERNAL REVENUE TAXATION, 87TH CONG., 1 LEGISLATIVE HISTORY OF UNITED STATES TAX CONVENTIONS 18 (Comm. Print 1962). The alternative considered was the enactment of a tax regime under which non-U.S. persons would be exempt from tax on all income except income from (1) a business, trade, or profession carried on in the United States through a permanent establishment; (2) compensation for personal services rendered in the United States; and (3) income derived from real property located in the United States, rentals and royalties therefrom, gains from the sale or other disposition thereof, and interest on obligations (other than those of a corporation), secured by such property. Id. at 3-4, reprinted in STAFF OF JOINT COMM. ON INTERNAL REVENUE TAXATION, 87TH CONG., 1 LEGISLATIVE HISTORY OF UNITED STATES TAX CONVENTIONS 17-18 (Comm. Print 1962). Application of this regime was conditioned on the enactment of a reciprocal regime by the non-U.S. person's country of residence. See infra note 62 for a discussion of a similar, more recent proposal.
11. Ke Chin Wang, International Double Taxation of Income: Relief Through International Agreement 1921-1945, 59 HARV. L. REV. 73, 81-102 (1945).
12. Id. at 102-07; Hearing on International Double Taxation, supra note 4, at 4, reprinted in STAFF OF JOINT COMM. ON INTERNAL REVENUE TAXATION, 87TH CONG., 1 LEGISLATIVE HISTORY OF UNITED STATES TAX CONVENTIONS 18 (Comm. Print 1962).
13. Id. at 102-07; Hearing on International Double Taxation, supra note 4, at 4, reprinted in STAFF OF JOINT COMM. ON INTERNAL REVENUE TAXATION, 87TH CONG., 1 LEGISLATIVE HISTORY OF UNITED STATES TAX CONVENTIONS 18 (Comm. Print 1962).
14. Convention Concerning Double Taxation, Apr. 27, 1932, U.S.-Fr., 49 Stat. 3145.
15. Andre Fogarasi et al., Current Status of U.S. Tax Treaties, 30 TAX MGM'T INT'L J. 252 (2001) (listing the countries). An income tax treaty with Slovenia has already been approved by the Senate, and merely awaits the exchange of instruments of ratification before it enters into force. Id. The Department of the Treasury recently announced that the United States has also reached agreement with Bangladesh on the text of an income tax treaty. Press Release, U.S. Dep't of Treasury (May 3, 2001), available at LEXIS 2001 WTD 88-27.
16. Fogarasi et al., supra note 10. I have included in this category Sri Lanka, with which the United States concluded an income tax treaty in 1985. This treaty was not ratified due to the existence of open issues relating to bank secrecy. The Department of the Treasury has also been considering whether negotiations with Sri Lanka need to be re-opened to take into account the impact of the Tax Reform Act of 1986 on the terms of the treaty. Id.
17. Tax Treaties: Hearing on Various Tax Treaties Before the S. Comm. on Foreign Relations, 97th Cong. 7-8 (1982) (statement of John E. Chapoton, Assistant Secretary of the Treasury, Tax Policy). The importance of the global tax treaty network has been underscored by the Organisation for Economic Co-operation and Development, which has stated that [d]ouble taxation agreements (tax treaties) are an essential element in facilitating economic relations between States and encouraging flows of capital and labor. They form a firm and reliable basis for tax relations between States. They limit and regulate the taxing jurisdiction of the States entering into them so as to ensure the orderly application of the domestic tax laws of what are often quite different systems. Their importance is underlined by the large numbers that are currently in force and the fact that international organizations and the business community repeatedly recommend the enlargement and improvement of the treaty network. COMM. ON FISCAL AFFAIRS, ORG. FOR ECON. CO-OPERATION & DEV., TAX TREATY OVERRIDES ¶ 1 (1990) (footnote omitted), available at LEXIS 90 TNI 7-13 [hereinafter OECD REPORT].
18. Tax Treaties: Hearing on Various Tax Treaties Before the S. Comm. on Foreign Relations, 97th Cong. 7-8 (1982) (statement of John E. Chapoton, Assistant Secretary of the Treasury, Tax Policy). The importance of the global tax treaty network has been underscored by the Organisation for Economic Co-operation and Development, which has stated that [d]ouble taxation agreements (tax treaties) are an essential element in facilitating economic relations between States and encouraging flows of capital and labor. They form a firm and reliable basis for tax relations between States. They limit and regulate the taxing jurisdiction of the States entering into them so as to ensure the orderly application of the domestic tax laws of what are often quite different systems. Their importance is underlined by the large numbers that are currently in force and the fact that international organizations and the business community repeatedly recommend the enlargement and improvement of the treaty network. COMM. ON FISCAL AFFAIRS, ORG. FOR ECON. CO-OPERATION & DEV., TAX TREATY OVERRIDES ¶ 1 (1990) (footnote omitted), available at LEXIS 90 TNI 7-13 [hereinafter OECD REPORT].
19. Tax Treaties: Hearing on Various Tax Treaties Before the S. Comm. on Foreign Relations, 97th Cong. 7-8 (1982) (statement of John E. Chapoton, Assistant Secretary of the Treasury, Tax Policy). The importance of the global tax treaty network has been underscored by the Organisation for Economic Co-operation and Development, which has stated that [d]ouble taxation agreements (tax treaties) are an essential element in facilitating economic relations between States and encouraging flows of capital and labor. They form a firm and reliable basis for tax relations between States. They limit and regulate the taxing jurisdiction of the States entering into them so as to ensure the orderly application of the domestic tax laws of what are often quite different systems. Their importance is underlined by the large numbers that are currently in force and the fact that international organizations and the business community repeatedly recommend the enlargement and improvement of the treaty network. COMM. ON FISCAL AFFAIRS, ORG. FOR ECON. CO-OPERATION & DEV., TAX TREATY OVERRIDES ¶ 1 (1990) (footnote omitted), available at LEXIS 90 TNI 7-13 [hereinafter OECD REPORT].
20. S. EXEC. REP. NO. 87-11, app. at 25 (1961) (statement of Edwin M. Martin, Assistant Secretary of State for Economic Affairs), reprinted in 4 LEGISLATIVE HISTORY OF UNITED STATES TAX CONVENTIONS at Canada 93B (Sidney I. Roberts ed., 1993).
21. GOUREVITCH, supra note 2, available at LEXIS 93 TNI 172-15; U.S. MODEL INCOME TAX CONVENTION art. 26 (1996), reprinted in 1 Tax Treaties ¶ 1022-A, at 1426-O to 1426-P (Warren, Gorham & Lamont 1996); U.S. MODEL ESTATE, GIFT, AND GENERATION-SKIPPING TRANSFER TAX CONVENTION art. 12 (1980), reprinted in 1 Tax Treaties ¶ 1020, at 1396-97 (Warren, Gorham & Lamont 1996). The United States has also entered into exchange of information agreements with a number of countries that are not otherwise part of our tax treaty network. See Fogarasi et al., supra note 10.
22. GOUREVITCH, supra note 2, available at LEXIS 93 TNI 172-15; U.S. MODEL INCOME TAX CONVENTION art. 26 (1996), reprinted in 1 Tax Treaties ¶ 1022-A, at 1426-O to 1426-P (Warren, Gorham & Lamont 1996); U.S. MODEL ESTATE, GIFT, AND GENERATION-SKIPPING TRANSFER TAX CONVENTION art. 12 (1980), reprinted in 1 Tax Treaties ¶ 1020, at 1396-97 (Warren, Gorham & Lamont 1996). The United States has also entered into exchange of information agreements with a number of countries that are not otherwise part of our tax treaty network. See Fogarasi et al., supra note 10.
23. GOUREVITCH, supra note 2, available at LEXIS 93 TNI 172-15; U.S. MODEL INCOME TAX CONVENTION art. 26 (1996), reprinted in 1 Tax Treaties ¶ 1022-A, at 1426-O to 1426-P (Warren, Gorham & Lamont 1996); U.S. MODEL ESTATE, GIFT, AND GENERATION-SKIPPING TRANSFER TAX CONVENTION art. 12 (1980), reprinted in 1 Tax Treaties ¶ 1020, at 1396-97 (Warren, Gorham & Lamont 1996). The United States has also entered into exchange of information agreements with a number of countries that are not otherwise part of our tax treaty network. See Fogarasi et al., supra note 10.
24. GOUREVITCH, supra note 2, available at LEXIS 93 TNI 172-15; U.S. MODEL INCOME TAX CONVENTION art. 26 (1996), reprinted in 1 Tax Treaties ¶ 1022-A, at 1426-O to 1426-P (Warren, Gorham & Lamont 1996); U.S. MODEL ESTATE, GIFT, AND GENERATION-SKIPPING TRANSFER TAX CONVENTION art. 12 (1980), reprinted in 1 Tax Treaties ¶ 1020, at 1396-97 (Warren, Gorham & Lamont 1996). The United States has also entered into exchange of information agreements with a number of countries that are not otherwise part of our tax treaty network. See Fogarasi et al., supra note 10.
25. GOUREVITCH, supra note 2, available at LEXIS 93 TNI 172-15; U.S. MODEL INCOME TAX CONVENTION art. 26 (1996), reprinted in 1 Tax Treaties ¶ 1022-A, at 1426-O to 1426-P (Warren, Gorham & Lamont 1996); U.S. MODEL ESTATE, GIFT, AND GENERATION-SKIPPING TRANSFER TAX CONVENTION art. 12 (1980), reprinted in 1 Tax Treaties ¶ 1020, at 1396-97 (Warren, Gorham & Lamont 1996). The United States has also entered into exchange of information agreements with a number of countries that are not otherwise part of our tax treaty network. See Fogarasi et al., supra note 10.
26. GOUREVITCH, supra note 2, available at LEXIS 93 TNI 172-15; U.S. MODEL INCOME TAX CONVENTION art. 26 (1996), reprinted in 1 Tax Treaties ¶ 1022-A, at 1426-O to 1426-P (Warren, Gorham & Lamont 1996); U.S. MODEL ESTATE, GIFT, AND GENERATION-SKIPPING TRANSFER TAX CONVENTION art. 12 (1980), reprinted in 1 Tax Treaties ¶ 1020, at 1396-97 (Warren, Gorham & Lamont 1996). The United States has also entered into exchange of information agreements with a number of countries that are not otherwise part of our tax treaty network. See Fogarasi et al., supra note 10.
27. When I speak of "legislative overrides," I mean legislation that is intended by Congress "to have effects in clear contradiction to international treaty obligations." OECD REPORT, supra note 12, ¶ 5, available at LEXIS 90 TNI 7-13. Thus, for example, I am not including within the ambit of this term legislation enacted by Congress that changes the definition of a term not otherwise defined in a treaty, because U.S. tax treaties normally provide that any term not defined in the treaty will have the meaning ascribed to it by the laws of the country whose tax is being applied (thereby vesting in Congress the power to define, as well as the prerogative to change the definition of, such a term). Id. ¶ 4(b), available at LEXIS 90 TNI 7-13; U.S. MODEL INCOME TAX CONVENTION art. 3, para. 2 (1996), reprinted in 1 Tax Treaties ¶ 1022-A, at 1426-C (Warren, Gorham & Lamont 1996); U.S. MODEL ESTATE, GIFT, AND GENERATION-SKIPPING TRANSFER TAX CONVENTION art. 3, para. 2 (1980), reprinted in 1 Tax Treaties ¶ 1020, at 1392 (Warren, Gorham & Lamont 1996). But see Anthony C. Infanti, The Proposed Domestic Reverse Hybrid Entity Regulations: Can the Treasury Department Override Treaties?, 30 TAX MGM'T INT'L J. 307, 310 (2001).
28. When I speak of "legislative overrides," I mean legislation that is intended by Congress "to have effects in clear contradiction to international treaty obligations." OECD REPORT, supra note 12, ¶ 5, available at LEXIS 90 TNI 7-13. Thus, for example, I am not including within the ambit of this term legislation enacted by Congress that changes the definition of a term not otherwise defined in a treaty, because U.S. tax treaties normally provide that any term not defined in the treaty will have the meaning ascribed to it by the laws of the country whose tax is being applied (thereby vesting in Congress the power to define, as well as the prerogative to change the definition of, such a term). Id. ¶ 4(b), available at LEXIS 90 TNI 7-13; U.S. MODEL INCOME TAX CONVENTION art. 3, para. 2 (1996), reprinted in 1 Tax Treaties ¶ 1022-A, at 1426-C (Warren, Gorham & Lamont 1996); U.S. MODEL ESTATE, GIFT, AND GENERATION-SKIPPING TRANSFER TAX CONVENTION art. 3, para. 2 (1980), reprinted in 1 Tax Treaties ¶ 1020, at 1392 (Warren, Gorham & Lamont 1996). But see Anthony C. Infanti, The Proposed Domestic Reverse Hybrid Entity Regulations: Can the Treasury Department Override Treaties?, 30 TAX MGM'T INT'L J. 307, 310 (2001).
29. When I speak of "legislative overrides," I mean legislation that is intended by Congress "to have effects in clear contradiction to international treaty obligations." OECD REPORT, supra note 12, ¶ 5, available at LEXIS 90 TNI 7-13. Thus, for example, I am not including within the ambit of this term legislation enacted by Congress that changes the definition of a term not otherwise defined in a treaty, because U.S. tax treaties normally provide that any term not defined in the treaty will have the meaning ascribed to it by the laws of the country whose tax is being applied (thereby vesting in Congress the power to define, as well as the prerogative to change the definition of, such a term). Id. ¶ 4(b), available at LEXIS 90 TNI 7-13; U.S. MODEL INCOME TAX CONVENTION art. 3, para. 2 (1996), reprinted in 1 Tax Treaties ¶ 1022-A, at 1426-C (Warren, Gorham & Lamont 1996); U.S. MODEL ESTATE, GIFT, AND GENERATION-SKIPPING TRANSFER TAX CONVENTION art. 3, para. 2 (1980), reprinted in 1 Tax Treaties ¶ 1020, at 1392 (Warren, Gorham & Lamont 1996). But see Anthony C. Infanti, The Proposed Domestic Reverse Hybrid Entity Regulations: Can the Treasury Department Override Treaties?, 30 TAX MGM'T INT'L J. 307, 310 (2001).
30. When I speak of "legislative overrides," I mean legislation that is intended by Congress "to have effects in clear contradiction to international treaty obligations." OECD REPORT, supra note 12, ¶ 5, available at LEXIS 90 TNI 7-13. Thus, for example, I am not including within the ambit of this term legislation enacted by Congress that changes the definition of a term not otherwise defined in a treaty, because U.S. tax treaties normally provide that any term not defined in the treaty will have the meaning ascribed to it by the laws of the country whose tax is being applied (thereby vesting in Congress the power to define, as well as the prerogative to change the definition of, such a term). Id. ¶ 4(b), available at LEXIS 90 TNI 7-13; U.S. MODEL INCOME TAX CONVENTION art. 3, para. 2 (1996), reprinted in 1 Tax Treaties ¶ 1022-A, at 1426-C (Warren, Gorham & Lamont 1996); U.S. MODEL ESTATE, GIFT, AND GENERATION-SKIPPING TRANSFER TAX CONVENTION art. 3, para. 2 (1980), reprinted in 1 Tax Treaties ¶ 1020, at 1392 (Warren, Gorham & Lamont 1996). But see Anthony C. Infanti, The Proposed Domestic Reverse Hybrid Entity Regulations: Can the Treasury Department Override Treaties?, 30 TAX MGM'T INT'L J. 307, 310 (2001).
31. When I speak of "legislative overrides," I mean legislation that is intended by Congress "to have effects in clear contradiction to international treaty obligations." OECD REPORT, supra note 12, ¶ 5, available at LEXIS 90 TNI 7-13. Thus, for example, I am not including within the ambit of this term legislation enacted by Congress that changes the definition of a term not otherwise defined in a treaty, because U.S. tax treaties normally provide that any term not defined in the treaty will have the meaning ascribed to it by the laws of the country whose tax is being applied (thereby vesting in Congress the power to define, as well as the prerogative to change the definition of, such a term). Id. ¶ 4(b), available at LEXIS 90 TNI 7-13; U.S. MODEL INCOME TAX CONVENTION art. 3, para. 2 (1996), reprinted in 1 Tax Treaties ¶ 1022-A, at 1426-C (Warren, Gorham & Lamont 1996); U.S. MODEL ESTATE, GIFT, AND GENERATION-SKIPPING TRANSFER TAX CONVENTION art. 3, para. 2 (1980), reprinted in 1 Tax Treaties ¶ 1020, at 1392 (Warren, Gorham & Lamont 1996). But see Anthony C. Infanti, The Proposed Domestic Reverse Hybrid Entity Regulations: Can the Treasury Department Override Treaties?, 30 TAX MGM'T INT'L J. 307, 310 (2001).
32. When I speak of "legislative overrides," I mean legislation that is intended by Congress "to have effects in clear contradiction to international treaty obligations." OECD REPORT, supra note 12, ¶ 5, available at LEXIS 90 TNI 7-13. Thus, for example, I am not including within the ambit of this term legislation enacted by Congress that changes the definition of a term not otherwise defined in a treaty, because U.S. tax treaties normally provide that any term not defined in the treaty will have the meaning ascribed to it by the laws of the country whose tax is being applied (thereby vesting in Congress the power to define, as well as the prerogative to change the definition of, such a term). Id. ¶ 4(b), available at LEXIS 90 TNI 7-13; U.S. MODEL INCOME TAX CONVENTION art. 3, para. 2 (1996), reprinted in 1 Tax Treaties ¶ 1022-A, at 1426-C (Warren, Gorham & Lamont 1996); U.S. MODEL ESTATE, GIFT, AND GENERATION-SKIPPING TRANSFER TAX CONVENTION art. 3, para. 2 (1980), reprinted in 1 Tax Treaties ¶ 1020, at 1392 (Warren, Gorham & Lamont 1996). But see Anthony C. Infanti, The Proposed Domestic Reverse Hybrid Entity Regulations: Can the Treasury Department Override Treaties?, 30 TAX MGM'T INT'L J. 307, 310 (2001).
33. Revenue Act of 1962, Pub. L. No. 87-834, § 31,76 Stat. 961, 1069 (1962) (generally providing that the Act would override all existing tax treaties). In fact, the Department of the Treasury determined that there were "no conflicts between provisions of the bill and provisions of tax treaties, with one minor exception relating to the ... Greek Estate Tax Treaty," which the Department of the Treasury indicated it would attempt to renegotiate before July 1, 1964. H.R. CONF. REP. NO. 87-2508, at 48 (1962), reprinted in 1962 U.S.C.C.A.N. 3732, 3770.
34. See GOUREVITCH, supra note 2, available at LEXIS 93 TNI 172-15 ("Since about 1980 Congress has enacted tax legislation almost yearly. With increasing frequency such legislation has overridden provisions in U.S. bilateral income tax treaties with other countries."); OECD REPORT, supra note 12, ¶ 2, available at LEXIS 90 TNI 7-13 ("The certainty that tax treaties bring to international tax matters has, in the past few years, been called into question, and to some extent undermined, by the tendency in certain States for domestic legislation to be passed or proposed which may override provisions of tax treaties."); Treaty Overrides: OECD Committee on Fiscal Affairs Report on Tax Treaty Overrides, 2 TAX NOTES INT'L 25, 25 (1990) (indicating that, even though the OECD Report "never mentions the United States, the [report] was almost certainly written in response to the recent treaty override actions, and threatened actions, of the U.S. Congress").
35. See GOUREVITCH, supra note 2, available at LEXIS 93 TNI 172-15 ("Since about 1980 Congress has enacted tax legislation almost yearly. With increasing frequency such legislation has overridden provisions in U.S. bilateral income tax treaties with other countries."); OECD REPORT, supra note 12, ¶ 2, available at LEXIS 90 TNI 7-13 ("The certainty that tax treaties bring to international tax matters has, in the past few years, been called into question, and to some extent undermined, by the tendency in certain States for domestic legislation to be passed or proposed which may override provisions of tax treaties."); Treaty Overrides: OECD Committee on Fiscal Affairs Report on Tax Treaty Overrides, 2 TAX NOTES INT'L 25, 25 (1990) (indicating that, even though the OECD Report "never mentions the United States, the [report] was almost certainly written in response to the recent treaty override actions, and threatened actions, of the U.S. Congress").
36. See GOUREVITCH, supra note 2, available at LEXIS 93 TNI 172-15 ("Since about 1980 Congress has enacted tax legislation almost yearly. With increasing frequency such legislation has overridden provisions in U.S. bilateral income tax treaties with other countries."); OECD REPORT, supra note 12, ¶ 2, available at LEXIS 90 TNI 7-13 ("The certainty that tax treaties bring to international tax matters has, in the past few years, been called into question, and to some extent undermined, by the tendency in certain States for domestic legislation to be passed or proposed which may override provisions of tax treaties."); Treaty Overrides: OECD Committee on Fiscal Affairs Report on Tax Treaty Overrides, 2 TAX NOTES INT'L 25, 25 (1990) (indicating that, even though the OECD Report "never mentions the United States, the [report] was almost certainly written in response to the recent treaty override actions, and threatened actions, of the U.S. Congress").
37. See, e.g., I.R.C. § 269B(d) (2001).
38. Pub. L. No. 94-12, 89 Stat. 26, 54 (1975). See Rev. Rul. 80-223, 1980-2 C.B. 217.
39. Pub. L. No. 94-455, 90 Stat. 1520, 1620 (1976). See Rev. Rul. 80-201, 1980-2 C.B. 221.
40. Pub. L. No. 96-499, 94 Stat. 2599, 2690-91 (1980).
41. Pub. L. No. 98-369, 98 Stat. 494, 669 (1984).
42. Pub. L. No. 99-514, 100 Stat. 2085, 2576 (1986). See Richard L. Doernberg, Legislative Override of Income Tax Treaties: The Branch Profits Tax and Congressional Arrogation of Authority, 42 TAX LAW. 173 (1989) (indicating that the branch profits tax violates the nondiscrimination provisions in many income tax treaties by limiting their application in situations where the United States believes that "treaty shopping" may be occurring).
43. Pub. L. No. 99-514, 100 Stat. 2085, 2822-23 (1986).
44. Pub. L. No. 100-647, 102 Stat. 3342, 3531 (1988).
45. Pub. L. No. 101-239, 103 Stat. 2106, 2339 (1989). See Richard L. Doemberg, Overriding Tax Treaties: The U.S. Perspective, 9 EMORY INT'L L. REV. 71, 92-105 (1995) (arguing that the earnings stripping rules violate nondiscrimination provisions in many income tax treaties).
46. Pub. L. No. 101-239, 103 Stat. 2106, 2359-61 (1989). 5ee H.R. REP. NO. 101-247, at 1301-02 (1989), reprinted in 1989 U.S.C.C.A.N. 1906, 2771-72 (arguing that the information reporting requirements do not violate the nondiscrimination provisions found in many income tax treaties, but stating that, if the reporting requirements are found to violate the nondiscrimination provisions of a treaty, the reporting requirements will override inconsistent treaty provisions). But see Sanford H. Goldberg & Peter A. Glicklich, Treaty-Based Nondiscrimination: Now You See It Now You Don't, 1 FLA. TAX REV. 51, 78 (1992) (indicating that the reporting provisions may, in fact, violate the nondiscrimination provisions in many income tax treaties).
47. Pub. L. No. 101-239, 103 Stat. 2106, 2418 (1989). See H.R. CONF. REP. NO. 101-386, at 668-70 (1989), reprinted in 1989 U.S.C.C.A.N. 1906, 3271-73.
48. Pub. L. No. 103-66, 107 Stat. 312, 508 (1993). See Timothy S. Guenther, Tax Treaties and Overrides: The Multiple-Party Financing Dilemma, 16 VA. TAX REV. 645, 668-70 (1997) (arguing that regulations relating to the characterization of multiple-party financing arrangements, promulgated under the authority of this section, override treaty obligations); Linda E. Carlisle & Geoffrey B. Lanning, Tax Treatment of Substitute Payments Under Securities Lending and Sale Repurchase Transactions, 15 J. TAX'N INV. 246 (1998) (arguing that regulations relating to the source and character of substitute dividend and interest payments, promulgated under the authority of this section, override treaty obligations).
49. Pub. L. No. 103-66, 107 Stat. 312, 508 (1993). See Timothy S. Guenther, Tax Treaties and Overrides: The Multiple-Party Financing Dilemma, 16 VA. TAX REV. 645, 668-70 (1997) (arguing that regulations relating to the characterization of multiple-party financing arrangements, promulgated under the authority of this section, override treaty obligations); Linda E. Carlisle & Geoffrey B. Lanning, Tax Treatment of Substitute Payments Under Securities Lending and Sale Repurchase Transactions, 15 J. TAX'N INV. 246 (1998) (arguing that regulations relating to the source and character of substitute dividend and interest payments, promulgated under the authority of this section, override treaty obligations).
50. Pub. L. No. 104-191, 110 Stat. 1936, 2093 (1996). See H.R. CONF. REP. NO. 104-736, at 329, 338 (1996), reprinted in 1996 U.S.C.C.A.N. 1990, 2142, 2151 (evincing an explicit intent to override tax treaties); Notice 97-19, 1997-1 C.B. 394, 402 (same).
51. Pub. L. No. 105-34, 111 Stat. 788, 943 (1997). See Robert Critchfield et al., Pass-Through Entities, Double Tax Conventions, and Treaty Overrides, 82 TAX NOTES 873, 887-89 (1999) (arguing that the portion of this section codified at I.R.C. § 894(c)(1) overrides at least one income tax treaty); Peter H. Blessing, Final § 894(c)(2) Regulations, 29 TAX MGM'T INT'L J. 499 (2000) (indicating that the portion of this section codified at I.R.C. § 894(c)(2) was intended to override income tax treaties).
52. Pub. L. No. 105-34, 111 Stat. 788, 943 (1997). See Robert Critchfield et al., Pass-Through Entities, Double Tax Conventions, and Treaty Overrides, 82 TAX NOTES 873, 887-89 (1999) (arguing that the portion of this section codified at I.R.C. § 894(c)(1) overrides at least one income tax treaty); Peter H. Blessing, Final § 894(c)(2) Regulations, 29 TAX MGM'T INT'L J. 499 (2000) (indicating that the portion of this section codified at I.R.C. § 894(c)(2) was intended to override income tax treaties).
53. I.R.C. § 894(a) (1985) (emphasis added).
54. H.R. CONF. REP. NO. 100-1104, at 12 (1988), reprinted in 1988 U.S.C.C.A.N. 5048, 5072.
55. Technical and Miscellaneous Revenue Act of 1988, Pub. L. No. 100-647, § 1012(aa)(6), 102 Stat. 3342, 3533 (1988).
56. I.R.C. § 894(a)(1) (2001) (emphasis added). It appears that, prior to 1988, the only provision in the Internal Revenue Code governing the interaction between treaties and the estate and gift taxes was § 7852(d), which provided that no provision of the code would "apply where its application would be contrary to any treaty obligation of the United States in effect on" August 16, 1954. I.R.C. § 7852(d) (1985). RICHARD B. STEPHENS ET AL., FEDERAL ESTATE AND GIFT TAXATION ¶ 7.02[5] (5th ed. 1983).
57. I.R.C. § 7852(d) (2001). Current § 894(a)(2) contains a cross-reference to § 7852(d). I.R.C. § 894(a)(2) (2001).
58. I.R.C. § 7852(d) (2001).
59. Whitney v. Robertson, 124 U.S. 190, 194 (1888).
60. U.S. CONST. art. VI, cl. 2 (providing that the "Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land"). Income tax conventions are "treaties" in the constitutional sense. Samann v. Commissioner, 313 F.2d 461, 463 (4th Cir. 1963); Am. Trust Co. v. Smyth, 247 F.2d 149, 153 (9th Cir. 1957), overruled on other grounds by Maximov v. United States, 373 U.S. 49 (1963).
61. Whitney, 124 U.S. at 194. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 115 cmt. a (1987). For a discussion of the evolution of the rationale for the later-in-time rule, see David Sachs, Is the 19th Century Doctrine of Treaty Override Good Law for Modern Day Tax Treaties?, 47 TAX LAW. 867, 867-70 (1994), and Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 VA. L. REV. 1071, 1104-1110 (1985). Commentators have questioned the logical underpinning of the later-in-time rule, which, if carried to its natural conclusion, would also put statutes and the Constitution on equal footing under the Supremacy Clause because "no superior efficacy is given to either over the other." Whitney, 124 U.S. at 194. See supra notes 38-39 and accompanying text; Sachs, supra; Doernberg, supra note 26, at 79-80; Louis Henkin, Treaties in a Constitutional Democracy, 10 MICH. J. INT'L L. 406, 425-26 (1989); COMMS. ON U.S. ACTIVITIES OF FOREIGN TAXPAYERS AND FOREIGN ACTIVITIES OF U.S. TAXPAYERS, N.Y. STATE BAR ASS'N, LEGISLATIVE OVERRIDES OF TAX TREATIES (1987), reprinted in New York State Bar Association Tax Section Opposes Treaty Override Provisions in the Technical Corrections Bill, 37 TAX NOTES 931, 932 n.5 (1987) [hereinafter NYSBA REPORT]; Lobel, supra, at 1104.
62. Whitney, 124 U.S. at 194. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 115 cmt. a (1987). For a discussion of the evolution of the rationale for the later-in-time rule, see David Sachs, Is the 19th Century Doctrine of Treaty Override Good Law for Modern Day Tax Treaties?, 47 TAX LAW. 867, 867-70 (1994), and Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 VA. L. REV. 1071, 1104-1110 (1985). Commentators have questioned the logical underpinning of the later-in-time rule, which, if carried to its natural conclusion, would also put statutes and the Constitution on equal footing under the Supremacy Clause because "no superior efficacy is given to either over the other." Whitney, 124 U.S. at 194. See supra notes 38-39 and accompanying text; Sachs, supra; Doernberg, supra note 26, at 79-80; Louis Henkin, Treaties in a Constitutional Democracy, 10 MICH. J. INT'L L. 406, 425-26 (1989); COMMS. ON U.S. ACTIVITIES OF FOREIGN TAXPAYERS AND FOREIGN ACTIVITIES OF U.S. TAXPAYERS, N.Y. STATE BAR ASS'N, LEGISLATIVE OVERRIDES OF TAX TREATIES (1987), reprinted in New York State Bar Association Tax Section Opposes Treaty Override Provisions in the Technical Corrections Bill, 37 TAX NOTES 931, 932 n.5 (1987) [hereinafter NYSBA REPORT]; Lobel, supra, at 1104.
63. Whitney, 124 U.S. at 194. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 115 cmt. a (1987). For a discussion of the evolution of the rationale for the later-in-time rule, see David Sachs, Is the 19th Century Doctrine of Treaty Override Good Law for Modern Day Tax Treaties?, 47 TAX LAW. 867, 867-70 (1994), and Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 VA. L. REV. 1071, 1104-1110 (1985). Commentators have questioned the logical underpinning of the later-in-time rule, which, if carried to its natural conclusion, would also put statutes and the Constitution on equal footing under the Supremacy Clause because "no superior efficacy is given to either over the other." Whitney, 124 U.S. at 194. See supra notes 38-39 and accompanying text; Sachs, supra; Doernberg, supra note 26, at 79-80; Louis Henkin, Treaties in a Constitutional Democracy, 10 MICH. J. INT'L L. 406, 425-26 (1989); COMMS. ON U.S. ACTIVITIES OF FOREIGN TAXPAYERS AND FOREIGN ACTIVITIES OF U.S. TAXPAYERS, N.Y. STATE BAR ASS'N, LEGISLATIVE OVERRIDES OF TAX TREATIES (1987), reprinted in New York State Bar Association Tax Section Opposes Treaty Override Provisions in the Technical Corrections Bill, 37 TAX NOTES 931, 932 n.5 (1987) [hereinafter NYSBA REPORT]; Lobel, supra, at 1104.
64. Whitney, 124 U.S. at 194. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 115 cmt. a (1987). For a discussion of the evolution of the rationale for the later-in-time rule, see David Sachs, Is the 19th Century Doctrine of Treaty Override Good Law for Modern Day Tax Treaties?, 47 TAX LAW. 867, 867-70 (1994), and Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 VA. L. REV. 1071, 1104-1110 (1985). Commentators have questioned the logical underpinning of the later-in-time rule, which, if carried to its natural conclusion, would also put statutes and the Constitution on equal footing under the Supremacy Clause because "no superior efficacy is given to either over the other." Whitney, 124 U.S. at 194. See supra notes 38-39 and accompanying text; Sachs, supra; Doernberg, supra note 26, at 79-80; Louis Henkin, Treaties in a Constitutional Democracy, 10 MICH. J. INT'L L. 406, 425-26 (1989); COMMS. ON U.S. ACTIVITIES OF FOREIGN TAXPAYERS AND FOREIGN ACTIVITIES OF U.S. TAXPAYERS, N.Y. STATE BAR ASS'N, LEGISLATIVE OVERRIDES OF TAX TREATIES (1987), reprinted in New York State Bar Association Tax Section Opposes Treaty Override Provisions in the Technical Corrections Bill, 37 TAX NOTES 931, 932 n.5 (1987) [hereinafter NYSBA REPORT]; Lobel, supra, at 1104.
65. Whitney, 124 U.S. at 194. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 115 cmt. a (1987). For a discussion of the evolution of the rationale for the later-in-time rule, see David Sachs, Is the 19th Century Doctrine of Treaty Override Good Law for Modern Day Tax Treaties?, 47 TAX LAW. 867, 867-70 (1994), and Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 VA. L. REV. 1071, 1104-1110 (1985). Commentators have questioned the logical underpinning of the later-in-time rule, which, if carried to its natural conclusion, would also put statutes and the Constitution on equal footing under the Supremacy Clause because "no superior efficacy is given to either over the other." Whitney, 124 U.S. at 194. See supra notes 38-39 and accompanying text; Sachs, supra; Doernberg, supra note 26, at 79-80; Louis Henkin, Treaties in a Constitutional Democracy, 10 MICH. J. INT'L L. 406, 425-26 (1989); COMMS. ON U.S. ACTIVITIES OF FOREIGN TAXPAYERS AND FOREIGN ACTIVITIES OF U.S. TAXPAYERS, N.Y. STATE BAR ASS'N, LEGISLATIVE OVERRIDES OF TAX TREATIES (1987), reprinted in New York State Bar Association Tax Section Opposes Treaty Override Provisions in the Technical Corrections Bill, 37 TAX NOTES 931, 932 n.5 (1987) [hereinafter NYSBA REPORT]; Lobel, supra, at 1104.
66. Whitney, 124 U.S. at 194. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 115 cmt. a (1987). For a discussion of the evolution of the rationale for the later-in-time rule, see David Sachs, Is the 19th Century Doctrine of Treaty Override Good Law for Modern Day Tax Treaties?, 47 TAX LAW. 867, 867-70 (1994), and Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 VA. L. REV. 1071, 1104-1110 (1985). Commentators have questioned the logical underpinning of the later-in-time rule, which, if carried to its natural conclusion, would also put statutes and the Constitution on equal footing under the Supremacy Clause because "no superior efficacy is given to either over the other." Whitney, 124 U.S. at 194. See supra notes 38-39 and accompanying text; Sachs, supra; Doernberg, supra note 26, at 79-80; Louis Henkin, Treaties in a Constitutional Democracy, 10 MICH. J. INT'L L. 406, 425-26 (1989); COMMS. ON U.S. ACTIVITIES OF FOREIGN TAXPAYERS AND FOREIGN ACTIVITIES OF U.S. TAXPAYERS, N.Y. STATE BAR ASS'N, LEGISLATIVE OVERRIDES OF TAX TREATIES (1987), reprinted in New York State Bar Association Tax Section Opposes Treaty Override Provisions in the Technical Corrections Bill, 37 TAX NOTES 931, 932 n.5 (1987) [hereinafter NYSBA REPORT]; Lobel, supra, at 1104.
67. Whitney, 124 U.S. at 194. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 115 cmt. a (1987). For a discussion of the evolution of the rationale for the later-in-time rule, see David Sachs, Is the 19th Century Doctrine of Treaty Override Good Law for Modern Day Tax Treaties?, 47 TAX LAW. 867, 867-70 (1994), and Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 VA. L. REV. 1071, 1104-1110 (1985). Commentators have questioned the logical underpinning of the later-in-time rule, which, if carried to its natural conclusion, would also put statutes and the Constitution on equal footing under the Supremacy Clause because "no superior efficacy is given to either over the other." Whitney, 124 U.S. at 194. See supra notes 38-39 and accompanying text; Sachs, supra; Doernberg, supra note 26, at 79-80; Louis Henkin, Treaties in a Constitutional Democracy, 10 MICH. J. INT'L L. 406, 425-26 (1989); COMMS. ON U.S. ACTIVITIES OF FOREIGN TAXPAYERS AND FOREIGN ACTIVITIES OF U.S. TAXPAYERS, N.Y. STATE BAR ASS'N, LEGISLATIVE OVERRIDES OF TAX TREATIES (1987), reprinted in New York State Bar Association Tax Section Opposes Treaty Override Provisions in the Technical Corrections Bill, 37 TAX NOTES 931, 932 n.5 (1987) [hereinafter NYSBA REPORT]; Lobel, supra, at 1104.
68. Whitney, 124 U.S. at 194. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 115 cmt. a (1987). For a discussion of the evolution of the rationale for the later-in-time rule, see David Sachs, Is the 19th Century Doctrine of Treaty Override Good Law for Modern Day Tax Treaties?, 47 TAX LAW. 867, 867-70 (1994), and Jules Lobel, The Limits of Constitutional Power: Conflicts Between Foreign Policy and International Law, 71 VA. L. REV. 1071, 1104-1110 (1985). Commentators have questioned the logical underpinning of the later-in-time rule, which, if carried to its natural conclusion, would also put statutes and the Constitution on equal footing under the Supremacy Clause because "no superior efficacy is given to either over the other." Whitney, 124 U.S. at 194. See supra notes 38-39 and accompanying text; Sachs, supra; Doernberg, supra note 26, at 79-80; Louis Henkin, Treaties in a Constitutional Democracy, 10 MICH. J. INT'L L. 406, 425-26 (1989); COMMS. ON U.S. ACTIVITIES OF FOREIGN TAXPAYERS AND FOREIGN ACTIVITIES OF U.S. TAXPAYERS, N.Y. STATE BAR ASS'N, LEGISLATIVE OVERRIDES OF TAX TREATIES (1987), reprinted in New York State Bar Association Tax Section Opposes Treaty Override Provisions in the Technical Corrections Bill, 37 TAX NOTES 931, 932 n.5 (1987) [hereinafter NYSBA REPORT]; Lobel, supra, at 1104.
69. Taylor v. Morton, 23 F. Cas. 784 (C.C.D. Mass. 1855)(No. 13,799), aff'd, 67 U.S. (2 Black) 481 (1862). See The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 621 (1870).
70. See The Chinese Exclusion Case, 130 U.S. 581, 585-86 (1889); Whitney, 124 U.S. at 193-94; The Head Money Cases, 112 U.S. 580, 599 (1884).
71. See The Chinese Exclusion Case, 130 U.S. 581, 585-86 (1889); Whitney, 124 U.S. at 193-94; The Head Money Cases, 112 U.S. 580, 599 (1884).
72. Sachs, supra note 40, at 870.
73. Cook v. United States, 288 U.S. 102, 120 (1933).
74. Trans World Airlines v. Franklin Mint Corp., 466 U.S. 243, 252, reh'g denied, 467 U.S. 1231 (1984). See also McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21-22 (1963); Blanco v. United States, 775 F.2d 53, 61 (2d Cir. 1985); Torres v. Immigration & Naturalization Serv., 602 F.2d 190, 195 (7th Cir. 1979); United States v. White, 508 F.2d 453, 456 (8th Cir. 1974); Ungo v. Beachie, 311 F.2d 905, 907 (9th Cir.), cert. denied, 373 U.S. 911 (1963).
75. S. REP. NO. 100-445, at 326 (1988), reprinted in 1988 U.S.C.C.A.N. 4515, 4837.
76. Doernberg, supra note 26, at 78-79; H. David Rosenbloom, Toward a New Tax Treaty Policy for a New Decade, 9 AM. J. TAX POL'Y 77, 79 (1991). See also THE FEDERALIST NO. 48, at 332 (James Madison) (Jacob E. Cooke ed., 1961) (acknowledging that "power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it").
77. Doernberg, supra note 26, at 78-79; H. David Rosenbloom, Toward a New Tax Treaty Policy for a New Decade, 9 AM. J. TAX POL'Y 77, 79 (1991). See also THE FEDERALIST NO. 48, at 332 (James Madison) (Jacob E. Cooke ed., 1961) (acknowledging that "power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it").
78. Doernberg, supra note 26, at 78-79; H. David Rosenbloom, Toward a New Tax Treaty Policy for a New Decade, 9 AM. J. TAX POL'Y 77, 79 (1991). See also THE FEDERALIST NO. 48, at 332 (James Madison) (Jacob E. Cooke ed., 1961) (acknowledging that "power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it").
79. U.S. CONST. art. II, § 2, cl. 2 [hereinafter Treaty Clause].
80. See Louis HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 131 (1972); 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1517, at 370 (1833).
81. See Louis HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 131 (1972); 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1517, at 370 (1833).
82. HENKIN, supra note 49, at 130-31. See also United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936) ("[T]he President alone has the power to speak or listen as a representative of the nation. He makes treaties with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is powerless to invade it.").
83. The House of Representatives does, however, play a role in implementing a treaty when the treaty is "non-self-executing." HENKIN, supra note 49, at 156-62. Chief Justice Marshall described the difference between a self-executing and a non-self-executing treaty as follows: A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially, so far as its operation is infraterritorial; but is carried into execution by the sovereign power of the respective parties to the instrument. In the United States, a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract - when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the Court. Foster v. Neilson, 27 U.S. (2 Pet.) 253, 313-14 (1829). By their terms, tax treaties are generally self-executing; in other words, they are intended to operate "without the aid of any legislative provision." Id. at 314. See Lidas, Inc. v. United States, 83 A.F.T.R.2d (RIA) 99-1112, 99-1115 (C.D. Cal. 1999), aff'd, 238 F.2d 1076 (9th Cir.), cert. denied, 121 S. Ct. 2245 (2001); AM. LAW INST., supra note 5, at 22; S. EXEC. REP. NO. 103-20, at 89 n. 74 (1993). Thus, the House of Representatives normally plays no role in either the making or implementation of tax treaties.
84. The House of Representatives does, however, play a role in implementing a treaty when the treaty is "non-self-executing." HENKIN, supra note 49, at 156-62. Chief Justice Marshall described the difference between a self-executing and a non-self-executing treaty as follows: A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially, so far as its operation is infraterritorial; but is carried into execution by the sovereign power of the respective parties to the instrument. In the United States, a different principle is established. Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract - when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract, before it can become a rule for the Court. Foster v. Neilson, 27 U.S. (2 Pet.) 253, 313-14 (1829). By their terms, tax treaties are generally self- executing; in other words, they are intended to operate "without the aid of any legislative provision." Id. at 314. See Lidas, Inc. v. United States, 83 A.F.T.R.2d (RIA) 99-1112, 99-1115 (C.D. Cal. 1999), aff'd, 238 F.2d 1076 (9th Cir.), cert. denied, 121 S. Ct. 2245 (2001); AM. LAW INST., supra note 5, at 22; S. EXEC. REP. NO. 103-20, at 89 n. 74 (1993). Thus, the House of Representatives normally plays no role in either the making or implementation of tax treaties.
85. THE FEDERALIST NO. 75, at 504 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (the treaty power "partake[s] more of the legislative than of the executive character, though it does not seem strictly to fall within the definition of either of them").
86. U.S. CONST. art. VI, cl. 2.
87. S. REP. NO. 100-445, at 323 (1988), reprinted in 1988 U.S.C.C.A.N. 4515, 4835.
88. See Vienna Convention on the Law of Treaties, May 23, 1969, art. 26, 8 I.L.M. 679, 690 ("Every treaty in force is binding upon the parties to it and must be performed by them in good faith.") [hereinafter Vienna Convention]; id. art. 39, 8 I.L.M. at 694 ("A treaty may be amended by agreement between the parties."); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 115(1)(b) (1986) ("That a rule of international law or a provision of an international agreement is superseded as domestic law does not relieve the United States of its international obligation or of the consequences of a violation of that obligation."); AM. LAW INST., supra note 5, at 73 ("That a statute may be effective to supersede a prior treaty as a matter of U.S. internal law does not relieve the United States of its obligations under the treaty. By failing to honor its international obligation, the United States violates the established international law principle pacta sunt servanda." (footnotes omitted)); 1 OPPENHEIM'S INTERNATIONAL LAW: PEACE § 624, at 1254 (Robert Jennings & Arthur Watts eds., 9th ed. 1992) ("A treaty may be amended by a further treaty between the parties[,] ... by an oral agreement, or by a tacit agreement evidenced by the subsequent practice of the parties."). The United States has signed, but not ratified, the Vienna Convention on the Law of Treaties. Nevertheless, those provisions of the convention that constitute the codification of customary international law (as opposed to the progressive development of international law) are binding on the United States. See The Paquete Habana, 175 U.S. 677, 700 (1900). Articles 26 and 39 of the Vienna Convention, cited above, do no more than codify customary international law. Article 26 "reproduces, in lapidary language, the basic principle pacta sunt servanda, designated by the [International Law] Commission as 'the fundamental principle of the law of treaties.'" IAN SINCLAIR, THE VIENNA CONVENTION ON THE LAW OF TREATIES 83 (2d ed. 1984) (quoting Report of the International Law Commission on the Work of Its Eighteenth Session, [1966] 2 Y.B. INT'L L. COMM'N 211, U.N. Doc. A/6309/Rev. 1). Article 39 codifies the general rule of customary international law "that a treaty may not be revised without the consent of all the parties." Id. at 106; EDWIN C. HOYT, THE UNANIMITY RULE IN THE REVISION OF TREATIES 1 (1959). Thus, articles 26 and 39 of the Vienna Convention are binding on the United States. One should not, however, be deceived into believing that mutual agreement of the parties is the only means of extrication from a treaty. A party to a treaty may terminate the treaty (or suspend its operation) in whole or in part if the other party materially breaches the treaty. Vienna Convention, supra, art. 60, 8 I.L.M. at 701. In addition, impossibility of performance or a fundamental change of circumstances (clausula rebus sic stantibus) may justify the termination (or the suspension of the operation) of a treaty. Id. arts. 61-62, 8 I.L.M. at 702.
89. See Vienna Convention on the Law of Treaties, May 23, 1969, art. 26, 8 I.L.M. 679, 690 ("Every treaty in force is binding upon the parties to it and must be performed by them in good faith.") [hereinafter Vienna Convention]; id. art. 39, 8 I.L.M. at 694 ("A treaty may be amended by agreement between the parties."); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 115(1)(b) (1986) ("That a rule of international law or a provision of an international agreement is superseded as domestic law does not relieve the United States of its international obligation or of the consequences of a violation of that obligation."); AM. LAW INST., supra note 5, at 73 ("That a statute may be effective to supersede a prior treaty as a matter of U.S. internal law does not relieve the United States of its obligations under the treaty. By failing to honor its international obligation, the United States violates the established international law principle pacta sunt servanda." (footnotes omitted)); 1 OPPENHEIM'S INTERNATIONAL LAW: PEACE § 624, at 1254 (Robert Jennings & Arthur Watts eds., 9th ed. 1992) ("A treaty may be amended by a further treaty between the parties[,] ... by an oral agreement, or by a tacit agreement evidenced by the subsequent practice of the parties."). The United States has signed, but not ratified, the Vienna Convention on the Law of Treaties. Nevertheless, those provisions of the convention that constitute the codification of customary international law (as opposed to the progressive development of international law) are binding on the United States. See The Paquete Habana, 175 U.S. 677, 700 (1900). Articles 26 and 39 of the Vienna Convention, cited above, do no more than codify customary international law. Article 26 "reproduces, in lapidary language, the basic principle pacta sunt servanda, designated by the [International Law] Commission as 'the fundamental principle of the law of treaties.'" IAN SINCLAIR, THE VIENNA CONVENTION ON THE LAW OF TREATIES 83 (2d ed. 1984) (quoting Report of the International Law Commission on the Work of Its Eighteenth Session, [1966] 2 Y.B. INT'L L. COMM'N 211, U.N. Doc. A/6309/Rev. 1). Article 39 codifies the general rule of customary international law "that a treaty may not be revised without the consent of all the parties." Id. at 106; EDWIN C. HOYT, THE UNANIMITY RULE IN THE REVISION OF TREATIES 1 (1959). Thus, articles 26 and 39 of the Vienna Convention are binding on the United States. One should not, however, be deceived into believing that mutual agreement of the parties is the only means of extrication from a treaty. A party to a treaty may terminate the treaty (or suspend its operation) in whole or in part if the other party materially breaches the treaty. Vienna Convention, supra, art. 60, 8 I.L.M. at 701. In addition, impossibility of performance or a fundamental change of circumstances (clausula rebus sic stantibus) may justify the termination (or the suspension of the operation) of a treaty. Id. arts. 61-62, 8 I.L.M. at 702.
90. See Vienna Convention on the Law of Treaties, May 23, 1969, art. 26, 8 I.L.M. 679, 690 ("Every treaty in force is binding upon the parties to it and must be performed by them in good faith.") [hereinafter Vienna Convention]; id. art. 39, 8 I.L.M. at 694 ("A treaty may be amended by agreement between the parties."); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 115(1)(b) (1986) ("That a rule of international law or a provision of an international agreement is superseded as domestic law does not relieve the United States of its international obligation or of the consequences of a violation of that obligation."); AM. LAW INST., supra note 5, at 73 ("That a statute may be effective to supersede a prior treaty as a matter of U.S. internal law does not relieve the United States of its obligations under the treaty. By failing to honor its international obligation, the United States violates the established international law principle pacta sunt servanda." (footnotes omitted)); 1 OPPENHEIM'S INTERNATIONAL LAW: PEACE § 624, at 1254 (Robert Jennings & Arthur Watts eds., 9th ed. 1992) ("A treaty may be amended by a further treaty between the parties[,] ... by an oral agreement, or by a tacit agreement evidenced by the subsequent practice of the parties."). The United States has signed, but not ratified, the Vienna
91. See Vienna Convention on the Law of Treaties, May 23, 1969, art. 26, 8 I.L.M. 679, 690 ("Every treaty in force is binding upon the parties to it and must be performed by them in good faith.") [hereinafter Vienna Convention]; id. art. 39, 8 I.L.M. at 694 ("A treaty may be amended by agreement between the parties."); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 115(1)(b) (1986) ("That a rule of international law or a provision of an international agreement is superseded as domestic law does not relieve the United States of its international obligation or of the consequences of a violation of that obligation."); AM. LAW INST., supra note 5, at 73 ("That a statute may be effective to supersede a prior treaty as a matter of U.S. internal law does not relieve the United States of its obligations under the treaty. By failing to honor its international obligation, the United States violates the established international law principle pacta sunt servanda." (footnotes omitted)); 1 OPPENHEIM'S INTERNATIONAL LAW: PEACE § 624, at 1254 (Robert Jennings & Arthur Watts eds., 9th ed. 1992) ("A treaty may be amended by a further treaty between the parties[,] ... by an oral agreement, or by a tacit agreement evidenced by the subsequent practice of the parties."). The United States has signed, but not ratified, the Vienna Convention on the Law of Treaties. Nevertheless, those provisions of the convention that constitute the codification of customary international law (as opposed to the progressive development of international law) are binding on the United States. See The Paquete Habana, 175 U.S. 677, 700 (1900). Articles 26 and 39 of the Vienna Convention, cited above, do no more than codify customary international law. Article 26 "reproduces, in lapidary language, the basic principle pacta sunt servanda, designated by the [International Law] Commission as 'the fundamental principle of the law of treaties.'" IAN SINCLAIR, THE VIENNA CONVENTION ON THE LAW OF TREATIES 83 (2d ed. 1984) (quoting Report of the International Law Commission on the Work of Its Eighteenth Session, [1966] 2 Y.B. INT'L L. COMM'N 211, U.N. Doc. A/6309/Rev. 1). Article 39 codifies the general rule of customary international law "that a treaty may not be revised without the consent of all the parties." Id. at 106; EDWIN C. HOYT, THE UNANIMITY RULE IN THE REVISION OF TREATIES 1 (1959). Thus, articles 26 and 39 of the Vienna Convention are binding on the United States. One should not, however, be deceived into believing that mutual agreement of the parties is the only means of extrication from a treaty. A party to a treaty may terminate the treaty (or suspend its operation) in whole or in part if the other party materially breaches the treaty. Vienna Convention, supra, art. 60, 8 I.L.M. at 701. In addition, impossibility of performance or a fundamental change of circumstances (clausula rebus sic stantibus) may justify the termination (or the suspension of the operation) of a treaty. Id. arts. 61-62, 8 I.L.M. at 702.
92. See Vienna Convention on the Law of Treaties, May 23, 1969, art. 26, 8 I.L.M. 679, 690 ("Every treaty in force is binding upon the parties to it and must be performed by them in good faith.") [hereinafter Vienna Convention]; id. art. 39, 8 I.L.M. at 694 ("A treaty may be amended by agreement between the parties."); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 115(1)(b) (1986) ("That a rule of international law or a provision of an international agreement is superseded as domestic law does not relieve the United States of its international obligation or of the consequences of a violation of that obligation."); AM. LAW INST., supra note 5, at 73 ("That a statute may be effective to supersede a prior treaty as a matter of U.S. internal law does not relieve the United States of its obligations under the treaty. By failing to honor its international obligation, the United States violates the established international law principle pacta sunt servanda." (footnotes omitted)); 1 OPPENHEIM'S INTERNATIONAL LAW: PEACE § 624, at 1254 (Robert Jennings & Arthur Watts eds., 9th ed. 1992) ("A treaty may be amended by a further treaty between the parties[,] ... by an oral agreement, or by a tacit agreement evidenced by the subsequent practice of the parties."). The United States has signed, but not ratified, the Vienna Convention on the Law of Treaties. Nevertheless, those provisions of the convention that constitute the codification of customary international law (as opposed to the progressive development of international law) are binding on the United States. See The Paquete Habana, 175 U.S. 677, 700 (1900). Articles 26 and 39 of the Vienna Convention, cited above, do no more than codify customary international law. Article 26 "reproduces, in lapidary language, the basic principle pacta sunt servanda, designated by the [International Law] Commission as 'the fundamental principle of the law of treaties.'" IAN SINCLAIR, THE VIENNA CONVENTION ON THE LAW OF TREATIES 83 (2d ed. 1984) (quoting Report of the International Law Commission on the Work of Its Eighteenth Session, [1966] 2 Y.B. INT'L L. COMM'N 211, U.N. Doc. A/6309/Rev. 1). Article 39 codifies the general rule of customary international law "that a treaty may not be revised without the consent of all the parties." Id. at 106; EDWIN C. HOYT, THE UNANIMITY RULE IN THE REVISION OF TREATIES 1 (1959). Thus, articles 26 and 39 of the Vienna Convention are binding on the United States. One should not, however, be deceived into believing that mutual agreement of the parties is the only means of extrication from a treaty. A party to a treaty may terminate the treaty (or suspend its operation) in whole or in part if the other party materially breaches the treaty. Vienna Convention, supra, art. 60, 8 I.L.M. at 701. In addition, impossibility of performance or a fundamental change of circumstances (clausula rebus sic stantibus) may justify the termination (or the suspension of the operation) of a treaty. Id. arts. 61-62, 8 I.L.M. at 702.
93. See Vienna Convention on the Law of Treaties, May 23, 1969, art. 26, 8 I.L.M. 679, 690 ("Every treaty in force is binding upon the parties to it and must be performed by them in good faith.") [hereinafter Vienna Convention]; id. art. 39, 8 I.L.M. at 694 ("A treaty may be amended by agreement between the parties."); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 115(1)(b) (1986) ("That a rule of international law or a provision of an international agreement is superseded as domestic law does not relieve the United States of its international obligation or of the consequences of a violation of that obligation."); AM. LAW INST., supra note 5, at 73 ("That a statute may be effective to supersede a prior treaty as a matter of U.S. internal law does not relieve the United States of its obligations under the treaty. By failing to honor its international obligation, the United States violates the established international law principle pacta sunt servanda." (footnotes omitted)); 1 OPPENHEIM'S INTERNATIONAL LAW: PEACE § 624, at 1254 (Robert Jennings & Arthur Watts eds., 9th ed. 1992) ("A treaty may be amended by a further treaty between the parties[,] ... by an oral agreement, or by a tacit agreement evidenced by the subsequent practice of the parties."). The United States has signed, but not ratified, the Vienna Convention on the Law of Treaties. Nevertheless, those provisions of the convention that constitute the codification of customary international law (as opposed to the progressive development of international law) are binding on the United States. See The Paquete Habana, 175 U.S. 677, 700 (1900). Articles 26 and 39 of the Vienna Convention, cited above, do no more than codify customary international law. Article 26 "reproduces, in lapidary language, the basic principle pacta sunt servanda, designated by the [International Law] Commission as 'the fundamental principle of the law of treaties.'" IAN SINCLAIR, THE VIENNA CONVENTION ON THE LAW OF TREATIES 83 (2d ed. 1984) (quoting Report of the International Law Commission on the Work of Its Eighteenth Session, [1966] 2 Y.B. INT'L L. COMM'N 211, U.N. Doc. A/6309/Rev. 1). Article 39 codifies the general rule of customary international law "that a treaty may not be revised without the consent of all the parties." Id. at 106; EDWIN C. HOYT, THE UNANIMITY RULE IN THE REVISION OF TREATIES 1 (1959). Thus, articles 26 and 39 of the Vienna Convention are binding on the United States. One should not, however, be deceived into believing that mutual agreement of the parties is the only means of extrication from a treaty. A party to a treaty may terminate the treaty (or suspend its operation) in whole or in part if the other party materially breaches the treaty. Vienna Convention, supra, art. 60, 8 I.L.M. at 701. In addition, impossibility of performance or a fundamental change of circumstances (clausula rebus sic stantibus) may justify the termination (or the suspension of the operation) of a treaty. Id. arts. 61-62, 8 I.L.M. at 702.
94. See Vienna Convention on the Law of Treaties, May 23, 1969, art. 26, 8 I.L.M. 679, 690 ("Every treaty in force is binding upon the parties to it and must be performed by them in good faith.") [hereinafter Vienna Convention]; id. art. 39, 8 I.L.M. at 694 ("A treaty may be amended by agreement between the parties."); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 115(1)(b) (1986) ("That a rule of international law or a provision of an international agreement is superseded as domestic law does not relieve the United States of its international obligation or of the consequences of a violation of that obligation."); AM. LAW INST., supra note 5, at 73 ("That a statute may be effective to supersede a prior treaty as a matter of U.S. internal law does not relieve the United States of its obligations under the treaty. By failing to honor its international obligation, the United States violates the established international law principle pacta sunt servanda." (footnotes omitted)); 1 OPPENHEIM'S INTERNATIONAL LAW: PEACE § 624, at 1254 (Robert Jennings & Arthur Watts eds., 9th ed. 1992) ("A treaty may be amended by a further treaty between the parties[,] ... by an oral agreement, or by a tacit agreement evidenced by the subsequent practice of the parties."). The United States has signed, but not ratified, the Vienna Convention on the Law of Treaties. Nevertheless, those provisions of the convention that constitute the codification of customary international law (as opposed to the progressive development of international law) are binding on the United States. See The Paquete Habana, 175 U.S. 677, 700 (1900). Articles 26 and 39 of the Vienna Convention, cited above, do no more than codify customary international law. Article 26 "reproduces, in lapidary language, the basic principle pacta sunt servanda, designated by the [International Law] Commission as 'the fundamental principle of the law of treaties.'" IAN SINCLAIR, THE VIENNA CONVENTION ON THE LAW OF TREATIES 83 (2d ed. 1984) (quoting Report of the International Law Commission on the Work of Its Eighteenth Session, [1966] 2 Y.B. INT'L L. COMM'N 211, U.N. Doc. A/6309/Rev. 1). Article 39 codifies the general rule of customary international law "that a treaty may not be revised without the consent of all the parties." Id. at 106; EDWIN C. HOYT, THE UNANIMITY RULE IN THE REVISION OF TREATIES 1 (1959). Thus, articles 26 and 39 of the Vienna Convention are binding on the United States. One should not, however, be deceived into believing that mutual agreement of the parties is the only means of extrication from a treaty. A party to a treaty may terminate the treaty (or suspend its operation) in whole or in part if the other party materially breaches the treaty. Vienna Convention, supra, art. 60, 8 I.L.M. at 701. In addition, impossibility of performance or a fundamental change of circumstances (clausula rebus sic stantibus) may justify the termination (or the suspension of the operation) of a treaty. Id. arts. 61-62, 8 I.L.M. at 702.
95. See Vienna Convention on the Law of Treaties, May 23, 1969, art. 26, 8 I.L.M. 679, 690 ("Every treaty in force is binding upon the parties to it and must be performed by them in good faith.") [hereinafter Vienna Convention]; id. art. 39, 8 I.L.M. at 694 ("A treaty may be amended by agreement between the parties."); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 115(1)(b) (1986) ("That a rule of international law or a provision of an international agreement is superseded as domestic law does not relieve the United States of its international obligation or of the consequences of a violation of that obligation."); AM. LAW INST., supra note 5, at 73 ("That a statute may be effective to supersede a prior treaty as a matter of U.S. internal law does not relieve the United States of its obligations under the treaty. By failing to honor its international obligation, the United States violates the established international law principle pacta sunt servanda." (footnotes omitted)); 1 OPPENHEIM'S INTERNATIONAL LAW: PEACE § 624, at 1254 (Robert Jennings & Arthur Watts eds., 9th ed. 1992) ("A treaty may be amended by a further treaty between the parties[,] ... by an oral agreement, or by a tacit agreement evidenced by the subsequent practice of the parties."). The United States has signed, but not ratified, the Vienna Convention on the Law of Treaties. Nevertheless, those provisions of the convention that constitute the codification of customary international law (as opposed to the progressive development of international law) are binding on the United States. See The Paquete Habana, 175 U.S. 677, 700 (1900). Articles 26 and 39 of the Vienna Convention, cited above, do no more than codify customary international law. Article 26 "reproduces, in lapidary language, the basic principle pacta sunt servanda, designated by the [International Law] Commission as 'the fundamental principle of the law of treaties.'" IAN SINCLAIR, THE VIENNA CONVENTION ON THE LAW OF TREATIES 83 (2d ed. 1984) (quoting Report of the International Law Commission on the Work of Its Eighteenth Session, [1966] 2 Y.B. INT'L L. COMM'N 211, U.N. Doc. A/6309/Rev. 1). Article 39 codifies the general rule of customary international law "that a treaty may not be revised without the consent of all the parties." Id. at 106; EDWIN C. HOYT, THE UNANIMITY RULE IN THE REVISION OF TREATIES 1 (1959). Thus, articles 26 and 39 of the Vienna Convention are binding on the United States. One should not, however, be deceived into believing that mutual agreement of the parties is the only means of extrication from a treaty. A party to a treaty may terminate the treaty (or suspend its operation) in whole or in part if the other party materially breaches the treaty. Vienna Convention, supra, art. 60, 8 I.L.M. at 701. In addition, impossibility of performance or a fundamental change of circumstances (clausula rebus sic stantibus) may justify the termination (or the suspension of the operation) of a treaty. Id. arts. 61-62, 8 I.L.M. at 702.
96. See Vienna Convention on the Law of Treaties, May 23, 1969, art. 26, 8 I.L.M. 679, 690 ("Every treaty in force is binding upon the parties to it and must be performed by them in good faith.") [hereinafter Vienna Convention]; id. art. 39, 8 I.L.M. at 694 ("A treaty may be amended by agreement between the parties."); RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 115(1)(b) (1986) ("That a rule of international law or a provision of an international agreement is superseded as domestic law does not relieve the United States of its international obligation or of the consequences of a violation of that obligation."); AM. LAW INST., supra note 5, at 73 ("That a statute may be effective to supersede a prior treaty as a matter of U.S. internal law does not relieve the United States of its obligations under the treaty. By failing to honor its international obligation, the United States violates the established international law principle pacta sunt servanda." (footnotes omitted)); 1 OPPENHEIM'S INTERNATIONAL LAW: PEACE § 624, at 1254 (Robert Jennings & Arthur Watts eds., 9th ed. 1992) ("A treaty may be amended by a further treaty between the parties[,] ... by an oral agreement, or by a tacit agreement evidenced by the subsequent practice of the parties."). The United States has signed, but not ratified, the Vienna Convention on the Law of Treaties. Nevertheless, those provisions of the convention that constitute the codification of customary international law (as opposed to the progressive development of international law) are binding on the United States. See The Paquete Habana, 175 U.S. 677, 700 (1900). Articles 26 and 39 of the Vienna Convention, cited above, do no more than codify customary international law. Article 26 "reproduces, in lapidary language, the basic principle pacta sunt servanda, designated by the [International Law] Commission as 'the fundamental principle of the law of treaties.'" IAN SINCLAIR, THE VIENNA CONVENTION ON THE LAW OF TREATIES 83 (2d ed. 1984) (quoting Report of the International Law Commission on the Work of Its Eighteenth Session, [1966] 2 Y.B. INT'L L. COMM'N 211, U.N. Doc. A/6309/Rev. 1). Article 39 codifies the general rule of customary international law "that a treaty may not be revised without the consent of all the parties." Id. at 106; EDWIN C. HOYT, THE UNANIMITY RULE IN THE REVISION OF TREATIES 1 (1959). Thus, articles 26 and 39 of the Vienna Convention are binding on the United States. One should not, however, be deceived into believing that mutual agreement of the parties is the only means of extrication from a treaty. A party to a treaty may terminate the treaty (or suspend its operation) in whole or in part if the other party materially breaches the treaty. Vienna Convention, supra, art. 60, 8 I.L.M. at 701. In addition, impossibility of performance or a fundamental change of circumstances (clausula rebus sic stantibus) may justify the termination (or the suspension of the operation) of a treaty. Id. arts. 61-62, 8 I.L.M. at 702.
97. Professor Verzijl made the following remarks concerning the importance of the basic principle pacta sunt servanda [agreements must be kept], which is codified in article 26 of the Vienna Convention: Without its operation and general acceptance as an axiom of inter-state intercourse no true and effective international law is indeed conceivable: when and where, and to the extent to which, that foundation-stone of the international system crumbles, the entire legal order is doomed to collapse, as experience has only too often demonstrated. This self-evident truth is the incontrovertible corollary of the fact that, whereas a municipal legal order is erected on the command "You shall", the international legal system rests on the undertaking "We shall". Whenever those "We" break faith, their legal order also necessarily breaks down. 1 J.H. W. VERZUL, INTERNATIONAL LAW IN HISTORICAL PERSPECTIVE 244 (1968). See also PHILLIP C. JESSUP, A MODERN LAW OF NATIONS 2, 154 (1948) (arguing for a "basic recognition of the interest which the whole international society has in the observance of its law"); J.L. BRIERLY, THE LAW OF NATIONS 331 (Humphrey Waldock ed., 6th ed. 1963) ("It is a truism to say that no international interest is more vital than the observance of good faith between states, and the 'sanctity' of treaties is a necessary corollary.").
98. Professor Verzijl made the following remarks concerning the importance of the basic principle pacta sunt servanda [agreements must be kept], which is codified in article 26 of the Vienna Convention: Without its operation and general acceptance as an axiom of inter-state intercourse no true and effective international law is indeed conceivable: when and where, and to the extent to which, that foundation-stone of the international system crumbles, the entire legal order is doomed to collapse, as experience has only too often demonstrated. This self-evident truth is the incontrovertible corollary of the fact that, whereas a municipal legal order is erected on the command "You shall", the international legal system rests on the undertaking "We shall". Whenever those "We" break faith, their legal order also necessarily breaks down. 1 J.H. W. VERZUL, INTERNATIONAL LAW IN HISTORICAL PERSPECTIVE 244 (1968). See also PHILLIP C. JESSUP, A MODERN LAW OF NATIONS 2, 154 (1948) (arguing for a "basic recognition of the interest which the whole international society has in the observance of its law"); J.L. BRIERLY, THE LAW OF NATIONS 331 (Humphrey Waldock ed., 6th ed. 1963) ("It is a truism to say that no international interest is more vital than the observance of good faith between states, and the 'sanctity' of treaties is a necessary corollary.").
99. Professor Verzijl made the following remarks concerning the importance of the basic principle pacta sunt servanda [agreements must be kept], which is codified in article 26 of the Vienna Convention: Without its operation and general acceptance as an axiom of inter-state intercourse no true and effective international law is indeed conceivable: when and where, and to the extent to which, that foundation-stone of the international system crumbles, the entire legal order is doomed to collapse, as experience has only too often demonstrated. This self-evident truth is the incontrovertible corollary of the fact that, whereas a municipal legal order is erected on the command "You shall", the international legal system rests on the undertaking "We shall". Whenever those "We" break faith, their legal order also necessarily breaks down. 1 J.H. W. VERZUL, INTERNATIONAL LAW IN HISTORICAL PERSPECTIVE 244 (1968). See also PHILLIP C. JESSUP, A MODERN LAW OF NATIONS 2, 154 (1948) (arguing for a "basic recognition of the interest which the whole international society has in the observance of its law"); J.L. BRIERLY, THE LAW OF NATIONS 331 (Humphrey Waldock ed., 6th ed. 1963) ("It is a truism to say that no international interest is more vital than the observance of good faith between states, and the 'sanctity' of treaties is a necessary corollary.").
100. John Turro, OECD Ambassadors Protest Rostenkowski Foreign Tax Bill, 5 TAX NOTES INT'L 289 (1992); Letter from Emmanuel de Margerie, Ambassador of France to the United States, to James A. Baker III, Secretary of the Treasury (July 16, 1987), reprinted in EEC Group of Six Addresses 1986 Act's Treaty Override Provisions, 36 TAX NOTES 437 (1987) ("The violation of a double tax treaty by unilateral action of one contracting party undermines the basis of trust existing between the two countries involved....").
101. John Turro, OECD Ambassadors Protest Rostenkowski Foreign Tax Bill, 5 TAX NOTES INT'L 289 (1992); Letter from Emmanuel de Margerie, Ambassador of France to the United States, to James A. Baker III, Secretary of the Treasury (July 16, 1987), reprinted in EEC Group of Six Addresses 1986 Act's Treaty Override Provisions, 36 TAX NOTES 437 (1987) ("The violation of a double tax treaty by unilateral action of one contracting party undermines the basis of trust existing between the two countries involved....").
102. See, e.g., Convention for the Avoidance of Double Taxation with Respect to Taxes on Income and the Prevention of Fraud or Fiscal Evasion, Aug. 25, 1999, U.S.-Italy, Protocol, art. 7, para. 1, S. TREATY DOC. NO. 106-11, at 53 (1999) (as of this writing, this treaty has not entered into force); Convention for the Avoidance of Double Taxation with Respect to Taxes on Income, Oct. 2, 1996, U.S.- Switz., art. 28, para. 5, S. TREATY DOC. NO. 105-8, at 91-92 (1997); Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital, Mar. 28, 1984, U.S.-Can., Protocol, art. 17, para. 7, S. TREATY DOC. NO. 104-4, at 19 (1995); Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, Jan. 26, 1993, U.S.-Isr., Protocol, art. V, para. 4, S. TREATY DOC. NO. 103-16, at 8-9 (1993); Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, Sept. 18, 1992, U.S.-Mex., Protocol, para. 20, S. TREATY DOC. NO. 103-7, at 70 (1993); Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, Dec. 18, 1992, U.S.-Neth., Exchange of Notes, S. TREATY DOC. NO. 103-6, at xxi-xxiv (1993).
103. See, e.g., Convention for the Avoidance of Double Taxation with Respect to Taxes on Income and the Prevention of Fraud or Fiscal Evasion, Aug. 25, 1999, U.S.-Italy, Protocol, art. 7, para. 1, S. TREATY DOC. NO. 106-11, at 53 (1999) (as of this writing, this treaty has not entered into force); Convention for the Avoidance of Double Taxation with Respect to Taxes on Income, Oct. 2, 1996, U.S.-Switz., art. 28, para. 5, S. TREATY DOC. NO. 105-8, at 91-92 (1997); Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital, Mar. 28, 1984, U.S.-Can., Protocol, art. 17, para. 7, S. TREATY DOC. NO. 104-4, at 19 (1995); Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, Jan. 26, 1993, U.S.-Isr., Protocol, art. V, para. 4, S. TREATY DOC. NO. 103-16, at 8-9 (1993); Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, Sept. 18, 1992, U.S.-Mex., Protocol, para. 20, S. TREATY DOC. NO. 103-7, at 70 (1993); Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, Dec. 18, 1992, U.S.-Neth., Exchange of Notes, S. TREATY DOC. NO. 103-6, at xxi-xxiv (1993).
104. See, e.g., Convention for the Avoidance of Double Taxation with Respect to Taxes on Income and the Prevention of Fraud or Fiscal Evasion, Aug. 25, 1999, U.S.-Italy, Protocol, art. 7, para. 1, S. TREATY DOC. NO. 106-11, at 53 (1999) (as of this writing, this treaty has not entered into force); Convention for the Avoidance of Double Taxation with Respect to Taxes on Income, Oct. 2, 1996, U.S.- Switz., art. 28, para. 5, S. TREATY DOC. NO. 105-8, at 91-92 (1997); Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital, Mar. 28, 1984, U.S.-Can., Protocol, art. 17, para. 7, S. TREATY DOC. NO. 104-4, at 19 (1995); Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, Jan. 26, 1993, U.S.-Isr., Protocol, art. V, para. 4, S. TREATY DOC. NO. 103-16, at 8-9 (1993); Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, Sept. 18, 1992, U.S.-Mex., Protocol, para. 20, S. TREATY DOC. NO. 103-7, at 70 (1993); Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, Dec. 18, 1992, U.S.-Neth., Exchange of Notes, S. TREATY DOC. NO. 103-6, at xxi-xxiv (1993).
105. See, e.g., Convention for the Avoidance of Double Taxation with Respect to Taxes on Income and the Prevention of Fraud or Fiscal Evasion, Aug. 25, 1999, U.S.-Italy, Protocol, art. 7, para. 1, S. TREATY DOC. NO. 106-11, at 53 (1999) (as of this writing, this treaty has not entered into force); Convention for the Avoidance of Double Taxation with Respect to Taxes on Income, Oct. 2, 1996, U.S.- Switz., art. 28, para. 5, S. TREATY DOC. NO. 105-8, at 91-92 (1997); Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital, Mar. 28, 1984, U.S.-Can., Protocol, art. 17, para. 7, S. TREATY DOC. NO. 104-4, at 19 (1995); Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, Jan. 26, 1993, U.S.-Isr., Protocol, art. V, para. 4, S. TREATY DOC. NO. 103-16, at 8-9 (1993); Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, Sept. 18, 1992, U.S.-Mex., Protocol, para. 20, S. TREATY DOC. NO. 103-7, at 70 (1993); Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, Dec. 18, 1992, U.S.-Neth., Exchange of Notes, S. TREATY DOC. NO. 103-6, at xxi-xxiv (1993).
106. See, e.g., Convention for the Avoidance of Double Taxation with Respect to Taxes on Income and the Prevention of Fraud or Fiscal Evasion, Aug. 25, 1999, U.S.-Italy, Protocol, art. 7, para. 1, S. TREATY DOC. NO. 106-11, at 53 (1999) (as of this writing, this treaty has not entered into force); Convention for the Avoidance of Double Taxation with Respect to Taxes on Income, Oct. 2, 1996, U.S.- Switz., art. 28, para. 5, S. TREATY DOC. NO. 105-8, at 91-92 (1997); Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital, Mar. 28, 1984, U.S.-Can., Protocol, art. 17, para. 7, S. TREATY DOC. NO. 104-4, at 19 (1995); Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, Jan. 26, 1993, U.S.-Isr., Protocol, art. V, para. 4, S. TREATY DOC. NO. 103-16, at 8-9 (1993); Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, Sept. 18, 1992, U.S.-Mex., Protocol, para. 20, S. TREATY DOC. NO. 103-7, at 70 (1993); Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, Dec. 18, 1992, U.S.-Neth., Exchange of Notes, S. TREATY DOC. NO. 103-6, at xxi-xxiv (1993).
107. See, e.g., Convention for the Avoidance of Double Taxation with Respect to Taxes on Income and the Prevention of Fraud or Fiscal Evasion, Aug. 25, 1999, U.S.-Italy, Protocol, art. 7, para. 1, S. TREATY DOC. NO. 106-11, at 53 (1999) (as of this writing, this treaty has not entered into force); Convention for the Avoidance of Double Taxation with Respect to Taxes on Income, Oct. 2, 1996, U.S.- Switz., art. 28, para. 5, S. TREATY DOC. NO. 105-8, at 91-92 (1997); Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital, Mar. 28, 1984, U.S.-Can., Protocol, art. 17, para. 7, S. TREATY DOC. NO. 104-4, at 19 (1995); Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, Jan. 26, 1993, U.S.-Isr., Protocol, art. V, para. 4, S. TREATY DOC. NO. 103-16, at 8-9 (1993); Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, Sept. 18, 1992, U.S.-Mex., Protocol, para. 20, S. TREATY DOC. NO. 103-7, at 70 (1993); Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, Dec. 18, 1992, U.S.-Neth., Exchange of Notes, S. TREATY DOC. NO. 103-6, at xxi-xxiv (1993).
108. Pending Bilateral Tax Treaties and OECD Tax Convention: Hearing Before the S. Comm. on Foreign Relations, 101st Cong. 13 (1990) (statement of Kenneth W. Gideon, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Richard E. Andersen, Senate Hearings Focus on Policies Toward Developing Nations and Treaty Overrides, 1 J. INT'L TAX'N 189, 191 (1990) ("Successive presidential administrations have vigorously opposed this legislative trend, on the theory that unilateral treaty overrides impede the negotiation of binding treaties with trading partners and run the risk of retaliatory action against U.S. investors.").
109. Pending Bilateral Tax Treaties and OECD Tax Convention: Hearing Before the S. Comm. on Foreign Relations, 101st Cong. 13 (1990) (statement of Kenneth W. Gideon, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Richard E. Andersen, Senate Hearings Focus on Policies Toward Developing Nations and Treaty Overrides, 1 J. INT'L TAX'N 189, 191 (1990) ("Successive presidential administrations have vigorously opposed this legislative trend, on the theory that unilateral treaty overrides impede the negotiation of binding treaties with trading partners and run the risk of retaliatory action against U.S. investors.").
110. See, e.g., Tax Treatment of Expatriated Citizens: Hearing Before the S. Comm. on Fin., 104th Cong. 5-6 (1995) (statement of Leslie B. Samuels, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Tax Conventions with: The Russian Federation, Treaty Doc. 102-39; United Mexican States, Treaty Doc. 103-7; The Czech Republic, Treaty Doc. 103-17; The Slovak Republic, Treaty Doc. 103-18; and The Netherlands, Treaty Doc. 103-6. Protocols Amending Tax Conventions with: Israel, Treaty Doc. 103-16; The Netherlands, Treaty Doc. 103-19; and Barbados, Treaty Doc. 102-41: Hearing Before the S. Comm. on Foreign Relations, 103d Cong. 9-10, 20 (1993) (statement of Leslie B. Samuels, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Pending Bilateral Tax Treaties and OECD Tax Convention: Hearing Before the S. Comm. on Foreign Relations, 101st Cong. 13 (1990) (statement of Kenneth W. Gideon, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Andersen, supra note 59, at 191; International Taxes: Congress Shows Willingness to Override Treaty Provisions, Treasury Official Says, Daily Tax Rep. (BNA) at G-1 (Jan. 29, 1990); Interview by Eric R. Fox with Philip D. Morrison, International Tax Counsel, U.S. Department of the Treasury (Feb. 27, 1990), reprinted in One Treaty at a Time, Says International Tax Counsel, 1 J. INT'L TAX'N 40 (1990); Tax Treaties: Treasury Official Warns of Effects of Treaty Overrides, Daily Tax Rep. (BNA) at G-3 (Nov. 1, 1990); The Technical Corrections Act of 1987: Hearing Before the Subcomm. on Taxation and Debt Mgmt. of the S. Comm. on Fin., 100th Cong. 16-21 (1988) (statement of O. Donaldson Chapoton, Deputy Assistant Secretary for Tax Policy, U.S. Department of the Treasury);
111. See, e.g., Tax Treatment of Expatriated Citizens: Hearing Before the S. Comm. on Fin., 104th Cong. 5-6 (1995) (statement of Leslie B. Samuels, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Tax Conventions with: The Russian Federation, Treaty Doc. 102-39; United Mexican States, Treaty Doc. 103-7; The Czech Republic, Treaty Doc. 103-17; The Slovak Republic, Treaty Doc. 103-18; and The Netherlands, Treaty Doc. 103-6. Protocols Amending Tax Conventions with: Israel, Treaty Doc. 103-16; The Netherlands, Treaty Doc. 103-19; and Barbados, Treaty Doc. 102-41: Hearing Before the S. Comm. on Foreign Relations, 103d Cong. 9-10, 20 (1993) (statement of Leslie B. Samuels, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Pending Bilateral Tax Treaties and OECD Tax Convention: Hearing Before the S. Comm. on Foreign Relations, 101st Cong. 13 (1990) (statement of Kenneth W. Gideon, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Andersen, supra note 59, at 191; International Taxes: Congress Shows Willingness to Override Treaty Provisions, Treasury Official Says, Daily Tax Rep. (BNA) at G-1 (Jan. 29, 1990); Interview by Eric R. Fox with Philip D. Morrison, International Tax Counsel, U.S. Department of the Treasury (Feb. 27, 1990), reprinted in One Treaty at a Time, Says International Tax Counsel, 1 J. INT'L TAX'N 40 (1990); Tax Treaties: Treasury Official Warns of Effects of Treaty Overrides, Daily Tax Rep. (BNA) at G-3 (Nov. 1, 1990); The Technical Corrections Act of 1987: Hearing Before the Subcomm. on Taxation and Debt Mgmt. of the S. Comm. on Fin., 100th Cong. 16-21 (1988) (statement of O. Donaldson Chapoton, Deputy Assistant Secretary for Tax Policy, U.S. Department of the Treasury);
112. See, e.g., Tax Treatment of Expatriated Citizens: Hearing Before the S. Comm. on Fin., 104th Cong. 5-6 (1995) (statement of Leslie B. Samuels, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Tax Conventions with: The Russian Federation, Treaty Doc. 102-39; United Mexican States, Treaty Doc. 103-7; The Czech Republic, Treaty Doc. 103-17; The Slovak Republic, Treaty Doc. 103-18; and The Netherlands, Treaty Doc. 103-6. Protocols Amending Tax Conventions with: Israel, Treaty Doc. 103-16; The Netherlands, Treaty Doc. 103-19; and Barbados, Treaty Doc. 102-41: Hearing Before the S. Comm. on Foreign Relations, 103d Cong. 9-10, 20 (1993) (statement of Leslie B. Samuels, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Pending Bilateral Tax Treaties and OECD Tax Convention: Hearing Before the S. Comm. on Foreign Relations, 101st Cong. 13 (1990) (statement of Kenneth W. Gideon, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Andersen, supra note 59, at 191; International Taxes: Congress Shows Willingness to Override Treaty Provisions, Treasury Official Says, Daily Tax Rep. (BNA) at G-1 (Jan. 29, 1990); Interview by Eric R. Fox with Philip D. Morrison, International Tax Counsel, U.S. Department of the Treasury (Feb. 27, 1990), reprinted in One Treaty at a Time, Says International Tax Counsel, 1 J. INT'L TAX'N 40 (1990); Tax Treaties: Treasury Official Warns of Effects of Treaty Overrides, Daily Tax Rep. (BNA) at G-3 (Nov. 1, 1990); The Technical Corrections Act of 1987: Hearing Before the Subcomm. on Taxation and Debt Mgmt. of the S. Comm. on Fin., 100th Cong. 16-21 (1988) (statement of O. Donaldson Chapoton, Deputy Assistant Secretary for Tax Policy, U.S. Department of the Treasury);
113. See, e.g., Tax Treatment of Expatriated Citizens: Hearing Before the S. Comm. on Fin., 104th Cong. 5-6 (1995) (statement of Leslie B. Samuels, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Tax Conventions with: The Russian Federation, Treaty Doc. 102-39; United Mexican States, Treaty Doc. 103-7; The Czech Republic, Treaty Doc. 103-17; The Slovak Republic, Treaty Doc. 103-18; and The Netherlands, Treaty Doc. 103-6. Protocols Amending Tax Conventions with: Israel, Treaty Doc. 103-16; The Netherlands, Treaty Doc. 103-19; and Barbados, Treaty Doc. 102-41: Hearing Before the S. Comm. on Foreign Relations, 103d Cong. 9-10, 20 (1993) (statement of Leslie B. Samuels, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Pending Bilateral Tax Treaties and OECD Tax Convention: Hearing Before the S. Comm. on Foreign Relations, 101st Cong. 13 (1990) (statement of Kenneth W. Gideon, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Andersen, supra note 59, at 191; International Taxes: Congress Shows Willingness to Override Treaty Provisions, Treasury Official Says, Daily Tax Rep. (BNA) at G-1 (Jan. 29, 1990); Interview by Eric R. Fox with Philip D. Morrison, International Tax Counsel, U.S. Department of the Treasury (Feb. 27, 1990), reprinted in One Treaty at a Time, Says International Tax Counsel, 1 J. INT'L TAX'N 40 (1990); Tax Treaties: Treasury Official Warns of Effects of Treaty Overrides, Daily Tax Rep. (BNA) at G-3 (Nov. 1, 1990); The Technical Corrections Act of 1987: Hearing Before the Subcomm. on Taxation and Debt Mgmt. of the S. Comm. on Fin., 100th Cong. 16-21 (1988) (statement of O. Donaldson Chapoton, Deputy Assistant Secretary for Tax Policy, U.S. Department of the Treasury);
114. See, e.g., Tax Treatment of Expatriated Citizens: Hearing Before the S. Comm. on Fin., 104th Cong. 5-6 (1995) (statement of Leslie B. Samuels, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Tax Conventions with: The Russian Federation, Treaty Doc. 102-39; United Mexican States, Treaty Doc. 103-7; The Czech Republic, Treaty Doc. 103-17; The Slovak Republic, Treaty Doc. 103-18; and The Netherlands, Treaty Doc. 103-6. Protocols Amending Tax Conventions with: Israel, Treaty Doc. 103-16; The Netherlands, Treaty Doc. 103-19; and Barbados, Treaty Doc. 102-41: Hearing Before the S. Comm. on Foreign Relations, 103d Cong. 9-10, 20 (1993) (statement of Leslie B. Samuels, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Pending Bilateral Tax Treaties and OECD Tax Convention: Hearing Before the S. Comm. on Foreign Relations, 101st Cong. 13 (1990) (statement of Kenneth W. Gideon, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Andersen, supra note 59, at 191; International Taxes: Congress Shows Willingness to Override Treaty Provisions, Treasury Official Says, Daily Tax Rep. (BNA) at G-1 (Jan. 29, 1990); Interview by Eric R. Fox with Philip D. Morrison, International Tax Counsel, U.S. Department of the Treasury (Feb. 27, 1990), reprinted in One Treaty at a Time, Says International Tax Counsel, 1 J. INT'L TAX'N 40 (1990); Tax Treaties: Treasury Official Warns of Effects of Treaty Overrides, Daily Tax Rep. (BNA) at G-3 (Nov. 1, 1990); The Technical Corrections Act of 1987: Hearing Before the Subcomm. on Taxation and Debt Mgmt. of the S. Comm. on Fin., 100th Cong. 16-21 (1988) (statement of O. Donaldson Chapoton, Deputy Assistant Secretary for Tax Policy, U.S. Department of the Treasury);
115. See, e.g., Tax Treatment of Expatriated Citizens: Hearing Before the S. Comm. on Fin., 104th Cong. 5-6 (1995) (statement of Leslie B. Samuels, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Tax Conventions with: The Russian Federation, Treaty Doc. 102-39; United Mexican States, Treaty Doc. 103-7; The Czech Republic, Treaty Doc. 103-17; The Slovak Republic, Treaty Doc. 103-18; and The Netherlands, Treaty Doc. 103-6. Protocols Amending Tax Conventions with: Israel, Treaty Doc. 103-16; The Netherlands, Treaty Doc. 103-19; and Barbados, Treaty Doc. 102-41: Hearing Before the S. Comm. on Foreign Relations, 103d Cong. 9-10, 20 (1993) (statement of Leslie B. Samuels, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Pending Bilateral Tax Treaties and OECD Tax Convention: Hearing Before the S. Comm. on Foreign Relations, 101st Cong. 13 (1990) (statement of Kenneth W. Gideon, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Andersen, supra note 59, at 191; International Taxes: Congress Shows Willingness to Override Treaty Provisions, Treasury Official Says, Daily Tax Rep. (BNA) at G-1 (Jan. 29, 1990); Interview by Eric R. Fox with Philip D. Morrison, International Tax Counsel, U.S. Department of the Treasury (Feb. 27, 1990), reprinted in One Treaty at a Time, Says International Tax Counsel, 1 J. INT'L TAX'N 40 (1990); Tax Treaties: Treasury Official Warns of Effects of Treaty Overrides, Daily Tax Rep. (BNA) at G-3 (Nov. 1, 1990); The Technical Corrections Act of 1987: Hearing Before the Subcomm. on Taxation and Debt Mgmt. of the S. Comm. on Fin., 100th Cong. 16-21 (1988) (statement of O. Donaldson Chapoton, Deputy Assistant Secretary for Tax Policy, U.S. Department of the Treasury);
116. See, e.g., Tax Treatment of Expatriated Citizens: Hearing Before the S. Comm. on Fin., 104th Cong. 5-6 (1995) (statement of Leslie B. Samuels, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Tax Conventions with: The Russian Federation, Treaty Doc. 102-39; United Mexican States, Treaty Doc. 103-7; The Czech Republic, Treaty Doc. 103-17; The Slovak Republic, Treaty Doc. 103-18; and The Netherlands, Treaty Doc. 103-6. Protocols Amending Tax Conventions with: Israel, Treaty Doc. 103-16; The Netherlands, Treaty Doc. 103-19; and Barbados, Treaty Doc. 102-41: Hearing Before the S. Comm. on Foreign Relations, 103d Cong. 9-10, 20 (1993) (statement of Leslie B. Samuels, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Pending Bilateral Tax Treaties and OECD Tax Convention: Hearing Before the S. Comm. on Foreign Relations, 101st Cong. 13 (1990) (statement of Kenneth W. Gideon, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Andersen, supra note 59, at 191; International Taxes: Congress Shows Willingness to Override Treaty Provisions, Treasury Official Says, Daily Tax Rep. (BNA) at G-1 (Jan. 29, 1990); Interview by Eric R. Fox with Philip D. Morrison, International Tax Counsel, U.S. Department of the Treasury (Feb. 27, 1990), reprinted in One Treaty at a Time, Says International Tax Counsel, 1 J. INT'L TAX'N 40 (1990); Tax Treaties: Treasury Official Warns of Effects of Treaty Overrides, Daily Tax Rep. (BNA) at G-3 (Nov. 1, 1990); The Technical Corrections Act of 1987: Hearing Before the Subcomm. on Taxation and Debt Mgmt. of the S. Comm. on Fin., 100th Cong. 16-21 (1988) (statement of O. Donaldson Chapoton, Deputy Assistant Secretary for Tax Policy, U.S. Department of the Treasury);
117. See, e.g., Tax Treatment of Expatriated Citizens: Hearing Before the S. Comm. on Fin., 104th Cong. 5-6 (1995) (statement of Leslie B. Samuels, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Tax Conventions with: The Russian Federation, Treaty Doc. 102-39; United Mexican States, Treaty Doc. 103-7; The Czech Republic, Treaty Doc. 103-17; The Slovak Republic, Treaty Doc. 103-18; and The Netherlands, Treaty Doc. 103-6. Protocols Amending Tax Conventions with: Israel, Treaty Doc. 103-16; The Netherlands, Treaty Doc. 103-19; and Barbados, Treaty Doc. 102-41: Hearing Before the S. Comm. on Foreign Relations, 103d Cong. 9-10, 20 (1993) (statement of Leslie B. Samuels, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Pending Bilateral Tax Treaties and OECD Tax Convention: Hearing Before the S. Comm. on Foreign Relations, 101st Cong. 13 (1990) (statement of Kenneth W. Gideon, Assistant Secretary for Tax Policy, U.S. Department of the Treasury); Andersen, supra note 59, at 191; International Taxes: Congress Shows Willingness to Override Treaty Provisions, Treasury Official Says, Daily Tax Rep. (BNA) at G-1 (Jan. 29, 1990); Interview by Eric R. Fox with Philip D. Morrison, International Tax Counsel, U.S. Department of the Treasury (Feb. 27, 1990), reprinted in One Treaty at a Time, Says International Tax Counsel, 1 J. INT'L TAX'N 40 (1990); Tax Treaties: Treasury Official Warns of Effects of Treaty Overrides, Daily Tax Rep. (BNA) at G-3 (Nov. 1, 1990); The Technical Corrections Act of 1987: Hearing Before the Subcomm. on Taxation and Debt Mgmt. of the S. Comm. on Fin., 100th Cong. 16-21 (1988) (statement of O. Donaldson Chapoton, Deputy Assistant Secretary for Tax Policy, U.S. Department of the Treasury);
118. Interview with Stephen E. Shay, International Tax Counsel, U.S. Department of the Treasury (Aug. 20, 1987), available at LEXIS 87 TNI 34-3; Letter from James A. Baker III, Secretary of the Treasury, to Dan Rostenkowski, Chairman, U.S. House Committee on Ways and Means (July 31, 1986), reprinted in Daily Tax Rep. (BNA) at G-8 (Aug. 1, 1986);
119. Letter from James A. Baker III, Secretary of the Treasury, to Robert Packwood, Chairman, U.S. Senate Committee on Finance (Apr. 7, 1986), reprinted in Daily Tax Rep. (BNA) at J-1 (Apr. 16, 1986).
120. But see Infanti, supra note 15, at 307.
121. See, e.g., Hans Gattermann, U.S. Tax Treaty Overrides Are Unacceptable, 12 TAX NOTES INT'L 1238 (1990);
122. Foreign Investment: Embassy Officials Criticize Unilateral U.S. Tax Treaty Overrides, Daily Tax Rep. (BNA) at G-4 (June 22, 1990);
123. OECD REPORT, supra note 12, ¶¶ 34-39, available at LEXIS 90 TNI 7-13; Letter from Ambassador of Federal Republic of Germany to Claiborne Pell, Chairman, U.S. Senate Committee on Foreign Relations (Apr. 18, 1988), available at LEXIS 88 TNI 17-20; Letter from Emmanuel de Margerie to James A. Baker III, supra note 57,
124. reprinted in EEC Group of Six Addresses 1986 Act's Treaty Override Provisions, 36 TAX NOTES 437 (1987); Tax Treaties: Dutch Minister Warns Against Unilaterality in Trade Bill, Moves to Override Treaties, Daily Tax Rep. (BNA) at G-7 (Nov. 6, 1987).
125. See, e.g., Philip F. Postlewaite & David S. Makarski, The A.L.I. Tax Treaty Study - A Critique and a Modest Proposal, 52 TAX LAW. 731, 740, 749-50 (1999); Critchfield et al., supra note 31, at 889; Guenther, supra note 29, at 680; AM. LAW INST., supra note 5, at 78; Rosenbloom, supra note 47, at 82; Doernberg, supra note 23, at 210; NYSBA REPORT, supra note 40, reprinted in New York State Bar Association Tax Section Opposes Treaty Override Provisions in the Technical Corrections Bill, 37 TAX NOTES 931, 937 (1987). In at least one instance, commentators have proposed eliminating income tax treaties as a means of solving the legislative override problem. See Postlewaite & Makarski, supra, at 800-40. These commentators have instead advocated the codification of the 1996 U.S. Model Income Tax Convention in place of the current international tax regime in the Internal Revenue Code. Id. While the codification of certain treaty provisions may be advisable as a policy matter, the soundness of a wholesale elimination of the U.S. tax treaty network in favor of this codified regime is subject to question. See Rosenbloom, supra note 47, at 80. Among other things, this codified regime would eliminate (i) the discretion that the United States currently exercises in targeting the application of treaty provisions (and the most beneficial treaty rates of tax) to the residents of certain countries and (ii) the benefits that U.S. citizens and residents receive from concessions obtained by the U.S. Department of the Treasury during treaty negotiations. It is also worth noting that a codified regime was considered, and rejected, by the United States as an alternative to tax treaties in the early 1930s. See supra notes 4-9 and accompanying text.
126. See, e.g., Philip F. Postlewaite & David S. Makarski, The A.L.I. Tax Treaty Study - A Critique and a Modest Proposal, 52 TAX LAW. 731, 740, 749-50 (1999); Critchfield et al., supra note 31, at 889; Guenther, supra note 29, at 680; AM. LAW INST., supra note 5, at 78; Rosenbloom, supra note 47, at 82; Doernberg, supra note 23, at 210; NYSBA REPORT, supra note 40, reprinted in New York State Bar Association Tax Section Opposes Treaty Override Provisions in the Technical Corrections Bill, 37 TAX NOTES 931, 937 (1987). In at least one instance, commentators have proposed eliminating income tax treaties as a means of solving the legislative override problem. See Postlewaite & Makarski, supra, at 800-40. These commentators have instead advocated the codification of the 1996 U.S. Model Income Tax Convention in place of the current international tax regime in the Internal Revenue Code. Id. While the codification of certain treaty provisions may be advisable as a policy matter, the soundness of a wholesale elimination of the U.S. tax treaty network in favor of this codified regime is subject to question. See Rosenbloom, supra note 47, at 80. Among other things, this codified regime would eliminate (i) the discretion that the United States currently exercises in targeting the application of treaty provisions (and the most beneficial treaty rates of tax) to the residents of certain countries and (ii) the benefits that U.S. citizens and residents receive from concessions obtained by the U.S. Department of the Treasury during treaty negotiations. It is also worth noting that a codified regime was considered, and rejected, by the United States as an alternative to tax treaties in the early 1930s. See supra notes 4-9 and accompanying text.
127. See, e.g., Philip F. Postlewaite & David S. Makarski, The A.L.I. Tax Treaty Study - A Critique and a Modest Proposal, 52 TAX LAW. 731, 740, 749-50 (1999); Critchfield et al., supra note 31, at 889; Guenther, supra note 29, at 680; AM. LAW INST., supra note 5, at 78; Rosenbloom, supra note 47, at 82; Doernberg, supra note 23, at 210; NYSBA REPORT, supra note 40, reprinted in New York State Bar Association Tax Section Opposes Treaty Override Provisions in the Technical Corrections Bill, 37 TAX NOTES 931, 937 (1987). In at least one instance, commentators have proposed eliminating income tax treaties as a means of solving the legislative override problem. See Postlewaite & Makarski, supra, at 800-40. These commentators have instead advocated the codification of the 1996 U.S. Model Income Tax Convention in place of the current international tax regime in the Internal Revenue Code. Id. While the codification of certain treaty provisions may be advisable as a policy matter, the soundness of a wholesale elimination of the U.S. tax treaty network in favor of this codified regime is subject to question. See Rosenbloom, supra note 47, at 80. Among other things, this codified regime would eliminate (i) the discretion that the United States currently exercises in targeting the application of treaty provisions (and the most beneficial treaty rates of tax) to the residents of certain countries and (ii) the benefits that U.S. citizens and residents receive from concessions obtained by the U.S. Department of the Treasury during treaty negotiations. It is also worth noting that a codified regime was considered, and rejected, by the United States as an alternative to tax treaties in the early 1930s. See supra notes 4-9 and accompanying text.
128. See, e.g., Philip F. Postlewaite & David S. Makarski, The A.L.I. Tax Treaty Study - A Critique and a Modest Proposal, 52 TAX LAW. 731, 740, 749-50 (1999); Critchfield et al., supra note 31, at 889; Guenther, supra note 29, at 680; AM. LAW INST., supra note 5, at 78; Rosenbloom, supra note 47, at 82; Doernberg, supra note 23, at 210; NYSBA REPORT, supra note 40, reprinted in New York State Bar Association Tax Section Opposes Treaty Override Provisions in the Technical Corrections Bill, 37 TAX NOTES 931, 937 (1987). In at least one instance, commentators have proposed eliminating income tax treaties as a means of solving the legislative override problem. See Postlewaite & Makarski, supra, at 800-40. These commentators have instead advocated the codification of the 1996 U.S. Model Income Tax Convention in place of the current international tax regime in the Internal Revenue Code. Id. While the codification of certain treaty provisions may be advisable as a policy matter, the soundness of a wholesale elimination of the U.S. tax treaty network in favor of this codified regime is subject to question. See Rosenbloom, supra note 47, at 80. Among other things, this codified regime would eliminate (i) the discretion that the United States currently exercises in targeting the application of treaty provisions (and the most beneficial treaty rates of tax) to the residents of certain countries and (ii) the benefits that U.S. citizens and residents receive from concessions obtained by the U.S. Department of the Treasury during treaty negotiations. It is also worth noting that a codified regime was considered, and rejected, by the United States as an alternative to tax treaties in the early 1930s. See supra notes 4-9 and accompanying text.
129. See, e.g., Philip F. Postlewaite & David S. Makarski, The A.L.I. Tax Treaty Study - A Critique and a Modest Proposal, 52 TAX LAW. 731, 740, 749-50 (1999); Critchfield et al., supra note 31, at 889; Guenther, supra note 29, at 680; AM. LAW INST., supra note 5, at 78; Rosenbloom, supra note 47, at 82; Doernberg, supra note 23, at 210; NYSBA REPORT, supra note 40, reprinted in New York State Bar Association Tax Section Opposes Treaty Override Provisions in the Technical Corrections Bill, 37 TAX NOTES 931, 937 (1987). In at least one instance, commentators have proposed eliminating income tax treaties as a means of solving the legislative override problem. See Postlewaite & Makarski, supra, at 800-40. These commentators have instead advocated the codification of the 1996 U.S. Model Income Tax Convention in place of the current international tax regime in the Internal Revenue Code. Id. While the codification of certain treaty provisions may be advisable as a policy matter, the soundness of a wholesale elimination of the U.S. tax treaty network in favor of this codified regime is subject to question. See Rosenbloom, supra note 47, at 80. Among other things, this codified regime would eliminate (i) the discretion that the United
130. See, e.g., Philip F. Postlewaite & David S. Makarski, The A.L.I. Tax Treaty Study - A Critique and a Modest Proposal, 52 TAX LAW. 731, 740, 749-50 (1999); Critchfield et al., supra note 31, at 889; Guenther, supra note 29, at 680; AM. LAW INST., supra note 5, at 78; Rosenbloom, supra note 47, at 82; Doernberg, supra note 23, at 210; NYSBA REPORT, supra note 40, reprinted in New York State Bar Association Tax Section Opposes Treaty Override Provisions in the Technical Corrections Bill, 37 TAX NOTES 931, 937 (1987). In at least one instance, commentators have proposed eliminating income tax treaties as a means of solving the legislative override problem. See Postlewaite & Makarski, supra, at 800-40. These commentators have instead advocated the codification of the 1996 U.S. Model Income Tax Convention in place of the current international tax regime in the Internal Revenue Code. Id. While the codification of certain treaty provisions may be advisable as a policy matter, the soundness of a wholesale elimination of the U.S. tax treaty network in favor of this codified regime is subject to question. See Rosenbloom, supra note 47, at 80. Among other things, this codified regime would eliminate (i) the discretion that the United States currently exercises in targeting the application of treaty provisions (and the most beneficial treaty rates of tax) to the residents of certain countries and (ii) the benefits that U.S. citizens and residents receive from concessions obtained by the U.S. Department of the Treasury during treaty negotiations. It is also worth noting that a codified regime was considered, and rejected, by the United States as an alternative to tax treaties in the early 1930s. See supra notes 4-9 and accompanying text.
131. See, e.g., Philip F. Postlewaite & David S. Makarski, The A.L.I. Tax Treaty Study - A Critique and a Modest Proposal, 52 TAX LAW. 731, 740, 749-50 (1999); Critchfield et al., supra note 31, at 889; Guenther, supra note 29, at 680; AM. LAW INST., supra note 5, at 78; Rosenbloom, supra note 47, at 82; Doernberg, supra note 23, at 210; NYSBA REPORT, supra note 40, reprinted in New York State Bar Association Tax Section Opposes Treaty Override Provisions in the Technical Corrections Bill, 37 TAX NOTES 931, 937 (1987). In at least one instance, commentators have proposed eliminating income tax treaties as a means of solving the legislative override problem. See Postlewaite & Makarski, supra, at 800-40. These commentators have instead advocated the codification of the 1996 U.S. Model Income Tax Convention in place of the current international tax regime in the Internal Revenue Code. Id. While the codification of certain treaty provisions may be advisable as a policy matter, the soundness of a wholesale elimination of the U.S. tax treaty network in favor of this codified regime is subject to question. See Rosenbloom, supra note 47, at 80. Among other things, this codified regime would eliminate (i) the discretion that the United States currently exercises in targeting the application of treaty provisions (and the most beneficial treaty rates of tax) to the residents of certain countries and (ii) the benefits that U.S. citizens and residents receive from concessions obtained by the U.S. Department of the Treasury during treaty negotiations. It is also worth noting that a codified regime was considered, and rejected, by the United States as an alternative to tax treaties in the early 1930s. See supra notes 4-9 and accompanying text.
132. See, e.g., Philip F. Postlewaite & David S. Makarski, The A.L.I. Tax Treaty Study - A Critique and a Modest Proposal, 52 TAX LAW. 731, 740, 749-50 (1999); Critchfield et al., supra note 31, at 889; Guenther, supra note 29, at 680; AM. LAW INST., supra note 5, at 78; Rosenbloom, supra note 47, at 82; Doernberg, supra note 23, at 210; NYSBA REPORT, supra note 40, reprinted in New York State Bar Association Tax Section Opposes Treaty Override Provisions in the Technical Corrections Bill, 37 TAX NOTES 931, 937 (1987). In at least one instance, commentators have proposed eliminating income tax treaties as a means of solving the legislative override problem. See Postlewaite & Makarski, supra, at 800-40. These commentators have instead advocated the codification of the 1996 U.S. Model Income Tax Convention in place of the current international tax regime in the Internal Revenue Code. Id. While the codification of certain treaty provisions may be advisable as a policy matter, the soundness of a wholesale elimination of the U.S. tax treaty network in favor of this codified regime is subject to question. See Rosenbloom, supra note 47, at 80. Among other things, this codified regime would eliminate (i) the discretion that the United States currently exercises in targeting the application of treaty provisions (and the most beneficial treaty rates of tax) to the residents of certain countries and (ii) the benefits that U.S. citizens and residents receive from concessions obtained by the U.S. Department of the Treasury during treaty negotiations. It is also worth noting that a codified regime was considered, and rejected, by the United States as an alternative to tax treaties in the early 1930s. See supra notes 4-9 and accompanying text.
133. See supra notes 17-31 and accompanying text. At least one member of Congress has espoused the view that legislative overrides no longer "constitute[] a violation of the treaty," because the parties entering into these treaties know full well that the Congress has been prepared to override these tax treaties, and therefore they go into them with that knowledge. Now, you can make an argument that we should not do it, or you do not want us to do it, but I think to term it a violation is an overstatement. Pending Bilateral Tax Treaties and OECD Tax Convention: Hearing Before the S. Comm. on Foreign Relations, 101st Cong. 61-62 (1990) (statement of Senator Sarbanes).
134. See Postlewaite & Makarski, supra note 62, at 748; Doernberg, supra note 26, at 115-121; AM. LAW INST., supra note 5, at 73.
135. See Postlewaite & Makarski, supra note 62, at 748; Doernberg, supra note 26, at 115-121; AM. LAW INST., supra note 5, at 73.
136. See supra note 62.
137. See supra note 40.
138. See supra note 40.
139. Dickerson v. United States, 530 U.S. 428, 443 (2000) ("Whether or not we would agree with Miranda's reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now. While "'stare decisis is not an inexorable command,'" particularly when we are interpreting the Constitution, "even in constitutional cases, the doctrine carries such persuasive force that we have always required a departure from precedent to be supported by some 'special justification.'"") (citations omitted).
140. Id.
141. 524 U.S. 417 (1998). During the course of my research, I came across two pre-Clinton extradition treaty cases in which a similar argument was made; however, neither court reached the merits of the argument. See DeSena Gouveia v. Vokes, 800 F. Supp. 241 (E.D. Pa. 1992); Hilario v. United States, 854 F. Supp. 165 (E.D.N.Y. 1994).
142. Pub. L. No. 104-130, 110 Stat. 1200 (1996).
143. Clinton, 524 U.S. at 436 (quoting 2 U.S.C. § 691(a) (Supp. 1994)).
144. Pub. L. No. 105-33, § 4722(c), 111 Stat. 251, 515 (1997).
145. Pub. L. No. 105-34, § 968, 111 Stat. 788, 895-96 (1997).
146. Clinton, 524 U.S. at 436.
147. Id.
148. Id. (quoting 2 U.S.C. § 691(a)(3)(A)).
149. Id.
150. Id. at 437 (quoting 2 U.S.C. § 691e(4)(B)-(C) (Supp. 1994)).
151. Id. at 447-49.
152. Id. at 438.
153. Id.
154. U.S. CONST. art. II, § 3.
155. U.S. CONST, art. I, § 7, cl. 2.
156. Clinton, 524 U.S. at 439.
157. Id. at 439-40 (quoting Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 951 (1983)) (citation omitted).
158. Id. This argument should not present a non-justiciable political question. See Baker v. Carr, 369 U.S. 186, 211 (1962) ("[I]t is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance."); Michael J. Glennon, Foreign Affairs and the Political Question Doctrine, in FOREIGN AFFAIRS AND THE U.S. CONSTITUTION 107, 112 (Louis Henkin et al. eds., 1990) ("The purported merits of judicial abstention in foreign affairs decision-making disputes thus shrink under scrutiny, while the drawbacks ... are substantial."). Judicial abstention is no more warranted in this case than it was in Immigration & Naturalization Service v. Chadha. In Chadha, the Court rejected the application of the political question doctrine, indicating that none of the factors identified in Baker v. Carr were applicable and stating that "[n]o policy underlying the political question doctrine suggests that Congress or the Executive, or both acting in concert and in compliance with Art. I, can decide the constitutionality of a statute; that is a decision for the courts." 462 U.S. 919, 941-42 (1983).
159. Id. This argument should not present a non-justiciable political question. See Baker v. Carr, 369 U.S. 186, 211 (1962) ("[I]t is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance."); Michael J. Glennon, Foreign Affairs and the Political Question Doctrine, in FOREIGN AFFAIRS AND THE U.S. CONSTITUTION 107, 112 (Louis Henkin et al. eds., 1990) ("The purported merits of judicial abstention in foreign affairs decision-making disputes thus shrink under scrutiny, while the drawbacks ... are substantial."). Judicial abstention is no more warranted in this case than it was in Immigration & Naturalization Service v. Chadha. In Chadha, the Court rejected the application of the political question doctrine, indicating that none of the factors identified in Baker v. Carr were applicable and stating that "[n]o policy underlying the political question doctrine suggests that Congress or the Executive, or both acting in concert and in compliance with Art. I, can decide the constitutionality of a statute; that is a decision for the courts." 462 U.S. 919, 941-42 (1983).
160. Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and on Capital, Sept. 26, 1980, U.S.-Can., art. XXIV, para. 4, S. EXEC. DOC. T, 96-2, at 22 (1991) [hereinafter U.S.-Canada Income Tax Treaty].
161. Id. (emphasis added).
162. The saving clause in the U.S.-Canada Income Tax Treaty, which would normally permit the United States to tax its citizens as if the treaty had never entered into force, does not apply to article XXIV. Id. Protocol, art. II, para. 1, S. TREATY DOC. NO. 98-22, at 1 (1984); id. Protocol, art. 17, para. 1, S. TREATY DOC. NO. 104-4, at 17-18 (1995).
163. Tax Reform Act of 1986, Pub. L. No. 99-514, § 701, 100 Stat. 2085, 2337 (1986).
164. The alternative minimum tax, which is computed at a lower rate than the highest regular income tax rate but with respect to a broader tax base than that used for regular income tax purposes, is intended as a "means of ensuring that every taxpayer with substantial economic income pays meaningful amounts of tax, regardless of how many tax incentives and other special allowances the taxpayer might utilize." 4 BORRIS I. BITTKER & LAWRENCE LOKKEN, FEDERAL TAXATION OF INCOME, ESTATES & GIFTS ¶ 111.4.1, at 111-88 (2d ed. 1992). The alternative minimum tax was enacted in response to reports of high-income individuals who were paying little or no income tax due to the "extensive use of allowances authorized by the Code." Id. Its enactment was intended to forestall a loss of confidence in the fairness of the income tax system, which could make it more difficult to collect taxes. Id. at 111-89.
165. S. REP. NO. 99-313, at 537 (1986).
166. Jamieson v. Commissioner, 70 T.C.M. (CCH) 1372 (1995), aff'd, 1997 U.S. App. LEXIS 34, 551 (D.C. Cir. 1997). See also Technical and Miscellaneous Revenue Act of 1988, Pub. L. No. 100-647, § 1012(aa)(2)(B), (4), 102 Stat. 3342, 3531-32 (1988) (expressly providing that § 59(a) will apply "notwithstanding any treaty obligation of the United States in effect on the date of the enactment" of the Tax Reform Act of 1986).
167. U.S.-Canada Income Tax Treaty, supra note 88, art. XXIV, para. 4, S. EXEC. DOC. T, 96-2, at 22 (emphasized text not in original). Even though Congress effectively amended article XXIV(4) when it enacted § 59(a)(2), the original obligation embodied in article XXIV(4) continues to have legal effect for purposes of international law. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW § 115(1)(b) (1986) ("That a rule of international law or a provision of an international agreement is superseded as domestic law does not relieve the United States of its international obligation or of the consequences of a violation of that obligation."). The existence of this continuing obligation under international law will not, however, serve as a basis for arguing that Congress did not actually amend article XXIV(4). In Clinton, the Supreme Court rejected a similar argument that no repeal of the cancelled provisions had occurred because the cancelled provisions continued to have budgetary effect under the "lockbox" provisions of the Line Item Veto Act: That a canceled item may have "real, legal budgetary effect" as a result of the lockbox procedure does not change the fact that by canceling the items at issue ... the President made them entirely inoperative as to appellees. Section 968 of the Taxpayer Relief Act no longer provide[d] a tax benefit, and § 4722(c) of the Balanced Budget Act of 1997 no longer relieve[d] New York of its contingent liability. Clinton, 524 U.S. at 441. In the instant situation, the application of article XXIV(4) to our U.S. citizen residing in Canada has similarly been limited, with the result that she now owes a tax to the United States that she would not have been required to pay had § 59(a)(2) never been enacted. Accordingly, notwithstanding the United States' continuing obligation under international law, Congress will be treated as having amended a treaty obligation of the United States when it enacted § 59(a)(2).
168. See supra notes 47-53 and accompanying text.
169. Clinton, 524 U.S. at 439.
170. Id.
171. Id.
172. Id. at 439-40 (quoting Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 951 (1983)). It is worth noting at the outset of this discussion that the framers were not unfamiliar with treaties that touched on matters of taxation; under the Articles of Confederation, the United States concluded several treaties of commerce that granted "[m]ost-favored-nation treatment in respect of ... imposts and duties." SAMUEL B. CRANDALL, TREATIES: THEIR MAKING AND ENFORCEMENT § 20, at 32-33 (1916).
173. Id. at 439-40 (quoting Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 951 (1983)). It is worth noting at the outset of this discussion that the framers were not unfamiliar with treaties that touched on matters of taxation; under the Articles of Confederation, the United States concluded several treaties of commerce that granted "[m]ost-favored-nation treatment in respect of ... imposts and duties." SAMUEL B. CRANDALL, TREATIES: THEIR MAKING AND ENFORCEMENT § 20, at 32-33 (1916).
174. 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 292 (Max Farrand ed., 1937) [hereinafter RECORDS].
175. Id. at 291.
176. Arthur Bestor, "Advice" from the Very Beginning, "Consent" when the End Is Achieved, in FOREIGN AFFAIRS AND THE U.S. CONSTITUTION 6, 10 (Louis Henkin et al. eds., 1990).
177. Id.
178. Id.
179. Id.; 1 RECORDS, supra note 101, at xxii; 2 RECORDS, supra note 101, at 95-96, 129-33.
180. Arthur Bestor, Respective Roles of Senate and President in the Making and Abrogation of Treaties - The Original Intent of the Framers of the Constitution Historically Examined, 55 WASH. L. REV. 1, 82 (1979).
181. 2 RECORDS, supra note 101, at 183.
182. Bestor, supra note 107, at 93.
183. Id. at 94-95.
184. Id. at 94.
185. Id. at 94-95.
186. Id. at 95.
187. U.S. CONST. art. I, § 7, cl. 1 ("All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.").
188. 2 RECORDS, supra note 101, at 297.
189. Id.
190. Id. at 392.
191. Bestor, supra note 107, at 109.
192. 2 RECORDS, supra note 101, at 392.
193. Id.
194. Id.
195. Id. at 392-93.
196. Id. at 393.
197. Id.
198. Id.
199. Id. at 394.
200. Id.
201. Id.
202. Id. at 481.
203. Id. at 498-99.
204. CRANDALL, supra note 100, § 24, at 44.
205. BESTOR, supra note 107, at 123.
206. Id. at 97.
207. Id. at 97-98.
208. Id. at 97.
209. Id. at 97-98.
210. 2 RECORDS, supra note 101, at 538.
211. Id.
212. Id.
213. Id.
214. Id. at 540.
215. Id.
216. Id.
217. Id. at 543.
218. Id. at 540.
219. Id. at 540-41.
220. Id. at 540.
221. Id. at 541.
222. Id.
223. Id.
224. Id. at 547.
225. Id. at 1547-48.
226. Id. at 548.
227. Id.
228. Id.
229. Id.
230. Id.
231. Id.
232. Id.
233. Id.
234. Id. at 548-49.
235. Id. at 549.
236. Id.
237. Id.
238. Id. (alteration in original).
239. Id.
240. Id.
241. Id.
242. Id.
243. Id. at 549-50.
244. Id. at 550.
245. Bestor, supra note 107, at 131.
246. Id.
247. Id. at 131-32.
248. CRANDALL, supra note 100, § 31, at 56. See also 3 STORY, supra note 49, § 1508.
249. THE FEDERALIST NO. 64, at 432 (John Jay) (Jacob E. Cooke ed., 1961) [hereinafter THE FEDERALIST NO. 64].
250. Originally, neither the President nor Senators were to be directly elected by the people. The President was "to be chosen by select bodies of electors to be deputed by the people for that express purpose," and the appointment of Senators was to be made by the state legislatures. Id. While the President continues to be chosen by electors, the Seventeenth Amendment altered the manner in which Senators are chosen. Senators are now directly elected by the people. U.S. CONST. amend. XVII, cl. 1. While the change in the manner in which Senators are chosen may, to a certain extent, undermine the rationale set forth in The Federalist No. 64 for vesting the treaty power in the Senate and President, this change is irrelevant to the instant discussion because it came some 125 years after the Constitution was drafted and submitted to the states for ratification. The focus here is on whether the Treaty Clause was "finely wrought" and "exhaustively considered" by the framers, not on whether the facts supporting their rationale for the structure of the Treaty Clause remain unchanged today. See Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221, 1247 (1995) ("Those provisions of the Constitution that are manifestly instrumental and means-oriented and that frame the architecture of the government ought to be given as fixed and determinate a reading as possible - one whose meaning is essentially frozen in time insofar as the shape, or topology, of the institutions created is concerned.").
251. THE FEDERALIST NO. 64, supra note 176, at 433.
252. Id.
253. Id. at 435.
254. Id. at 434.
255. Id.
256. Id. at 436.
257. THE FEDERALIST NO. 75, at 506 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) [hereinafter THE FEDERALIST NO. 75].
258. THE FEDERALIST NO. 64, supra note 176, at 433-34.
259. Id. at 434.
260. U.S. CONST. art. I, § 2, cl. 1; U.S. CONST. art. I, § 3, cl. 1 (amended 1913).
261. THE FEDERALIST NO. 64, supra note 176, at 434.
262. Id.
263. THE FEDERALIST NO. 75, supra note 184, at 506-07.
264. Clinton, 524 U.S. at 439.
265. Id. at 439-40 (quoting Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 951 (1983)). The finely wrought and exhaustively considered procedure prescribed by the Treaty Clause represents the "single" procedure found in the Constitution for making a treaty. HENKIN, supra note 49, at 173. During the first 150 years of our republic, this procedure was viewed as the exclusive method for entering into treaties. Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799, 808-13 (1995). It was not until the mid-twentieth century that the congressional-executive agreement came to be accepted, in practice, as an alternative to agreements concluded pursuant to the Treaty Clause. Despite its acceptance in practice, the constitutionality of the congressional-executive agreement remains hotly debated. Compare Ackerman, supra, with Tribe, supra note 177. See also Made in the USA Found, v. United States, 56 F. Supp. 2d 1226 (N.D. Ala. 1999) (finding NAFTA constitutional, despite the fact that its conclusion did not comply with the requirements of the Treaty Clause), vacated and case ordered dismissed, 242 F.3d 1300 (11th Cir. 2001) (vacating the district court decision and dismissing the case on the ground that determining whether an international commercial agreement - such as NAFTA - is a "treaty" presents a non-justiciable political question), petition for cert. filed, 70 U.S.L.W. 3074 (U.S. June 28, 2001) (No. 01-5). Given the questionable constitutionality of the congressional-executive agreement and, more importantly, its recent vintage, the existence of this alternative method for making international agreements should not undercut the argument that familiar historical materials provide abundant support for the conclusion that the framers intended the power to make treaties to be exercised in accordance with the "single, finely wrought and exhaustively considered, procedure" prescribed by the Treaty Clause.
266. Id. at 439-40 (quoting Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 951 (1983)). The finely wrought and exhaustively considered procedure prescribed by the Treaty Clause represents the "single" procedure found in the Constitution for making a treaty. HENKIN, supra note 49, at 173. During the first 150 years of our republic, this procedure was viewed as the exclusive method for entering into treaties. Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799, 808-13 (1995). It was not until the mid-twentieth century that the congressional-executive agreement came to be accepted, in practice, as an alternative to agreements concluded pursuant to the Treaty Clause. Despite its acceptance in practice, the constitutionality of the congressional-executive agreement remains hotly debated. Compare Ackerman, supra, with Tribe, supra note 177. See also Made in the USA Found, v. United States, 56 F. Supp. 2d 1226 (N.D. Ala. 1999) (finding NAFTA constitutional, despite the fact that its conclusion did not comply with the requirements of the Treaty Clause), vacated and case ordered dismissed, 242 F.3d 1300 (11th Cir. 2001) (vacating the district court decision and dismissing the case on the ground that determining whether an international commercial agreement - such as NAFTA - is a "treaty" presents a non-justiciable political question), petition for cert. filed, 70 U.S.L.W. 3074 (U.S. June 28, 2001) (No. 01-5). Given the questionable constitutionality of the congressional-executive agreement and, more importantly, its recent vintage, the existence of this alternative method for making international agreements should not undercut the argument that familiar historical materials provide abundant support for the conclusion that the framers intended the power to make treaties to be exercised in accordance with the "single, finely wrought and exhaustively considered, procedure" prescribed by the Treaty Clause.
267. Id. at 439-40 (quoting Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 951 (1983)). The finely wrought and exhaustively considered procedure prescribed by the Treaty Clause represents the "single" procedure found in the Constitution for making a treaty. HENKIN, supra note 49, at 173. During the first 150 years of our republic, this procedure was viewed as the exclusive method for entering into treaties. Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799, 808-13 (1995). It was not until the mid-twentieth century that the congressional-executive agreement came to be accepted, in practice, as an alternative to agreements concluded pursuant to the Treaty Clause. Despite its acceptance in practice, the constitutionality of the congressional-executive agreement remains hotly debated. Compare Ackerman, supra, with Tribe, supra note 177. See also Made in the USA Found, v. United States, 56 F. Supp. 2d 1226 (N.D. Ala. 1999) (finding NAFTA constitutional, despite the fact that its conclusion did not comply with the requirements of the Treaty Clause), vacated and case ordered dismissed, 242 F.3d 1300 (11th Cir. 2001) (vacating the district court decision and dismissing the case on the ground that determining whether an international commercial agreement - such as NAFTA - is a "treaty" presents a non-justiciable political question), petition for cert. filed, 70 U.S.L.W. 3074 (U.S. June 28, 2001) (No. 01-5). Given the questionable constitutionality of the congressional-executive agreement and, more importantly, its recent vintage, the existence of this alternative method for making international agreements should not undercut the argument that familiar historical materials provide abundant support for the conclusion that the framers intended the power to make treaties to be exercised in accordance with the "single, finely wrought and exhaustively considered, procedure" prescribed by the Treaty Clause.
268. It is not surprising that the framers would have devoted a considerable amount of time and thought to treaty-related issues, because problems encountered under the Articles of Confederation in enforcing treaties were an impetus for calling the Federal Convention. See I RECORDS, supra note 101, at 18-19; CRANDALL, supra note 100, § 29, at 51; THE FEDERALIST NO. 22, at 136-44 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
269. It is not surprising that the framers would have devoted a considerable amount of time and thought to treaty-related issues, because problems encountered under the Articles of Confederation in enforcing treaties were an impetus for calling the Federal Convention. See I RECORDS, supra note 101, at 18-19; CRANDALL, supra note 100, § 29, at 51; THE FEDERALIST NO. 22, at 136-44 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
270. Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 954 (1983).
271. See, e.g., 3 JOHN ELLIOT, THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 510, 515 (2d ed. 1996) (statements of Mr. Corbin and James Madison).
272. THE FEDERALIST NO. 64, supra note 176, at 436-37 (emphasis added). See also 4 ELLIOTT, supra note 195, at 119 (statement of Mr. Davie during the ratification debate in North Carolina indicating that "[a]ll civilized nations have concurred in considering [treaties] as paramount to an ordinary act of legislation").
273. See supra note 61 and accompanying text.
274. Bestor, supra note 103, at 7, 11-12.
275. See supra text accompanying notes 185-90.
276. U.S. CONST. art. I, § 7, cl. 1.
277. U.S. CONST. art. I, § 7, cl. 3.
278. See BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 22-54 (1967); GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787, at 355 (1969).
279. See BERNARD BAILYN, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION 22-54 (1967); GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787, at 355 (1969).
280. HERSCH LAUTERPACHT, The Grotian Tradition in International Law, in 2 INTERNATIONAL LAW: BEING THE COLLECTED PAPERS OF HERSCH LAUTERPACHT 307, 325 (Elihu Lauterpacht ed., 1975).
281. See also 1 VERZIJL, supra note 56, at 438 (describing Grotius as "the initiator of a real theory and system of international law").
282. 1 VERZIJL, supra note 56, at 244. See also LAUTERPACHT, supra note 203, at 325 (describing the principle pacta sunt servanda as "one of the cornerstones of Grotius' teaching").
283. 1 VERZIJL, supra note 56, at 244. See also LAUTERPACHT, supra note 203, at 325 (describing the principle pacta sunt servanda as "one of the cornerstones of Grotius' teaching").
284. See HUGO GROTIUS, DEJURE BELLI AC PACIS LIBRI TRES, Prolegomena § 8; Prolegomena § 15; bk. 3, ch. 19, § 2, para. 2 (1646), translated in THE CLASSICS OF INTERNATIONAL LAW, 2 DE JURE BELLI AC PACIS LIBRI TRES 13, 14-15, 794 (James Brown Scott ed., 1925).
285. See HUGO GROTIUS, DEJURE BELLI AC PACIS LIBRI TRES, Prolegomena § 8; Prolegomena § 15; bk. 3, ch. 19, § 2, para. 2 (1646), translated in THE CLASSICS OF INTERNATIONAL LAW, 2 DE JURE BELLI AC PACIS LIBRI TRES 13, 14-15, 794 (James Brown Scott ed., 1925).
286. SAMUEL PUFENDORF, DE JURE NATURAE ET GENTIUM LIBRI OCTO bk. 3, ch. 4, § 2 (1688), translated in THE CLASSICS OF INTERNATIONAL LAW, 2 DE JURE NATURAE ET GENTIUM LIBRI OCTO 380-81 (James Brown Scott ed., 1934).
287. SAMUEL PUFENDORF, DE JURE NATURAE ET GENTIUM LIBRI OCTO bk. 3, ch. 4, § 2 (1688), translated in THE CLASSICS OF INTERNATIONAL LAW, 2 DE JURE NATURAE ET GENTIUM LIBRI OCTO 380-81 (James Brown Scott ed., 1934).
288. JEAN-JACQUES BURLAMAQUI, THE PRINCIPLES OF POLITIC LAW: BEING A SEQUEL TO THE PRINCIPLES OF NATURAL LAW pt. 4, ch. 9, § 3, at 315 (Mr. Nugent trans., 1752). See also id. pt. 1, ch. 1, § 13, at 5 ("the law of nature ... commands us to be faithful to our engagements").
289. EMMERICH DE VATTEL, LE DROIT DES GENS, OU PRINCIPES DE LA LOI NATURELLE, APPLIQUÉS À LA CONDUITE AUX AFFAIRES DES NATIONS ET DES SOUVERAINS bk. 2, ch. 12, § 152 (1758),
290. translated in THE CLASSICS OF INTERNATIONAL LAW, 3 LE DROIT DES GENS, OU PRINCIPES DE LA LOI NATURELLE, APPLIQUÉS À LA CONDUITE AUX AFFAIRES DES NATIONS ET DES SOUVERAINS 160 (James Brown Scott ed., 1916).
291. Id. § 163, translated in THE CLASSICS OF INTERNATIONAL LAW, 3 LE DROIT DES GENS, OU PRINCIPES DE LA LOI NATURELLE, APPLIQUÉS À LA CONDUITE AUX AFFAIRES DES NATIONS ET DES SOUVERAINS 162 (James Brown Scott ed., 1916).
292. Id.
293. Id.
294. Id. bk. 2, ch. 15, § 218, translated in THE CLASSICS OF INTERNATIONAL LAW, 3 LE DROIT DES GENS, OU PRINCIPES DE LA LOI NATURELLE, APPLIQUÉS À LA CONDUITE AUX AFFAIRES DES NATIONS ET DES SOUVERAINS 188-92 (James Brown Scott ed., 1916).
295. Id. § 222, translated in THE CLASSICS OF INTERNATIONAL LAW, 3 LE DROIT DES GENS, OU PRINCIPES DE LA LOI NATURELLE, APPLIQUÉS À LA CONDUITE AUX AFFAIRES DES NATIONS ET DES SOUVERAINS 188 (James Brown Scott ed., 1916).
296. Id.
297. Id. at 188-89.
298. GROTIUS, supra note 205, bk. 2, ch. 16, § 4, para. 1, translated in THE CLASSICS OF INTERNATIONAL LAW, 2 DE JURE BELLI AC PACIS LIBRI TRES 411 (James Brown Scott ed., 1925).
299. PUFENDORF, supra note 206, bk. 5, ch. 12, § 6, translated in THE CLASSICS OF INTERNATIONAL LAW, 2 DE JURE NATURAE ET GENTIUM LIBRI OCTO 793 (James Brown Scott ed., 1934) (alteration in original).
300. VATTEL, supra note 208, bk. 2, ch. 17, §§ 311-22, translated in THE CLASSICS OF INTERNATIONAL LAW, 3 LE DROIT DES GENS, OU PRINCIPES DE LA LOI NATURELLE, APPLIQUÉS À LA CONDUITE AUX AFFAIRES DES NATIONS ET DES SOUVERAINS 218-21 (James Brown Scott ed., 1916). One of the ten rules articulated by Vattel is that a later treaty will supersede an earlier treaty, but his explication of this rule does not contemplate its application to a conflict between a law and a treaty.
301. Id. § 315, translated in THE CLASSICS OF INTERNATIONAL LAW, 3 LE DROIT DES GENS, OU PRINCIPES DE LA LOI NATURELLE, APPLIQUÉS À LA CONDUITE AUX AFFAIRES DES NATIONS ET DES SOUVERAINS 219-20 (James Brown Scott ed., 1916).
302. Id. §§ 198-205, translated in THE CLASSICS OF INTERNATIONAL LAW, 3 LE DROIT DES GENS, OU PRINCIPES DE LA LOI NATURELLE, APPLIQUÉS À LA CONDUITE AUX AFFAIRES DES NATIONS ET DES SOUVERAINS 176-79 (James Brown Scott ed., 1916).
303. PUFENDORF, supra note 206, bk. 5, ch. 11, §§ 7-9, translated in THE CLASSICS OF INTERNATIONAL LAW, 2 DE JURE NATURAE ET GENTIUM LIBRI OCTO 787-89 (James Brown Scott ed., 1934).
304. GROTIUS, supra note 205, bk. 3, ch. 20, § 38, translated in THE CLASSICS OF INTERNATIONAL LAW, 2 DE JURE BELLI AC PACIS LIBRI TRES 818 (James Brown Scott ed., 1925) (emphasis added).