Unratified treaties, domestic politics, and the U.S. constitution

Harvard International Law Journal

Volumn 48, Issue 2, 2007, Pages 307-336

  Bradley, Curtis A ^a  

^a Duke Law School ^*

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EID: 34548651552     PISSN: 00178063     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (182)

1. See infra text accompanying notes 34-36. Customary international law is the law of the international community that "results from a general and consistent practice of states followed by them from a sense of legal obligation." RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 102(2) (1987).
2. See infra text accompanying notes 37-42.
3. See infra text accompanying note 38.
4. See U.S. CONST. art. II, § 2 (stating that the president has the power to make treaties "by and with the Advice and Consent of the Senate . . . provided two thirds of the Senators present concur").
5. See UNPERFECTED TREATIES OF THE UNITED STATES OF AMERICA, 1776-1976 (Christian L. Wiktor ed., 1979) (documenting over 400 treaties that the United States signed but did not ratify between 1776 and 1976);
6. see also U.S. Senate Committee on Foreign Relations, Pending Treaties, http://foreign.senate. gov/treaties.pdf (last updated Jan. 31, 2007) (listing treaties currently pending in the Senate);
7. U.S. DEPT. OF STATE, LIST OF TREATIES SUBMITTED TO THE SENATE, 1789-1934 (1935).
8. See U.S. Department of State, Private International Law, http://www.state.gov/s/l/c3452.htm (last visited Mar. 18, 2007).
9. See Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 U.S.T. 571, 94 L.N.T.S. 65 (entered into force Feb. 8, 1928; for the United States Oct. 4, 1975).
10. See Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277 (entered into force Jan. 12, 1951; for the United States Feb. 23, 1989).
11. See James Dao, Senate Panel Approves Treaty Banning Bias Against Women, N.Y. TIMES, July 31, 2002, at A1.
12. See, e.g., Ellen Chesler, International Holdout: Around the World, Empowering Women Is Considered Essential. So Why Isn't America on Board?, AM. PROSPECT, Oct. 2004, at A27.
13. See U.S. Senate, Treaties, http://www.senate.gov/artandhistory/ history/common/briefing/Treaties. htm#5 (last visited Mar. 18, 2007) (listing twenty-one treaties that have been rejected by the Senate over the course of U.S. history).
14. See Nuclear Arms Reduction Proposals: Hearings Before the S. Comm. on Foreign Relations, 97th Cong. 121 (1982).
15. See Letter of Transmittal from President Ronald Reagan to the U.S. Senate (Jan. 29, 1987), reprinted in Agora: The U.S. Decision Not to Ratify Protocol I to the Geneva Conventions on the Protection of War Victims, 81 AM. J. INT'L L. 910 (1987). Among other things, President Reagan expressed concern that the First Additional Protocol would "grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war." Id. at 911. Some commentators have perceived a conflict between that concern and the Bush Administration's post-September 11 treatment of terrorists as enemy combatants.
16. See Rome Statute of the International Criminal Court art. 120, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute]. As of September 2006, 102 nations were parties to this treaty. See United Nations Treaty Collection, Rome Statute of the International Criminal Court, http://untreaty.un.org/ ENGLISH/bible/englishinternetbible/partI/chapterXVIII/ treaty11.asp (last visited Mar. 18, 2007).
17. See President William J. Clinton, Statement on Signature of the International Criminal Court Treaty (Dec. 31, 2000), available at http://clinton4.nara.gov/textonly/library/hot_releases/December_31_ 2000.html.
18. President Clinton expressed the view that, with signature, the United States would "be in a position to influence the evolution of the Court," whereas "[w]ithout signature, we will not." Id. Senator Jesse Helms complained that "President Clinton's decision to sign the Rome treaty establishing an International Criminal Court in his final days in office is as outrageous as it is inexplicable . . . . Today's action is a blatant attempt by a lame-duck President to tie the hands of his successor." Press Release, Jesse Helms, Senate Foreign Relations Comm. Chairman, Helms Press Release on Clinton's Signature (Dec. 31, 2000), available at http://www.amicc.org/docs/Helms_Sign.pdf.
19. See Letter from John R. Bolton, Under Sec'y for Arms Control & Int'l Sec., U.S. Dep't of State, to Kofi Annan, Sec'y General, United Nations (May 6, 2002), available at www.state.gov/r/pa/prs/ps/2002/ 9968.htm [hereinafter Bolton Letter];
20. see also Curtis A. Bradley, U.S. Announces Intent Not to Ratify International Criminal Court Treaty, ASIL INSIGHTS, May 2002, http://www.asil.org/insights/insigh87.htm (discussing the U.S. announcement).
21. In other words, there is what the political scientist Robert Putnam has referred to as a "two-level game." See Robert D. Putnam, Diplomacy and Domestic Politics: The Logic of Two-Level Games, 42 INT'L ORG. 427 (1988);
22. see also LOCATING THE PROPER AUTHORITIES: The Interaction of Domestic and International Institutions (Daniel W. Drezner ed., 2003).
23. See, e.g., Christopher C. Horner & Iain Murray, Why the United States Should Remove Its Signature from the Kyoto Protocol, MONTHLY PLANET, Sept. 2004, available at http://www.cei.org/pdf/4254.pdf.
24. See Letter from Paula Dobriansky, Under Sec'y for Global Affairs, U.S. Dep't of State, to Christopher C. Horner, Counsel, Cooler Heads Coalition (May 14, 2002), available at http://www.cei.org/gencon/003,03044.cfm.
25. Id.
26. A somewhat similar example is the State Department's failure to answer a 2003 letter from Senator Jon Kyl asking for clarification of the status of the Comprehensive Nuclear Test Ban Treaty. See A1 Kamen, A Nomination on Hold, WASH. POST, Aug. 9, 2004, at A13 (referring to an unanswered 2003 letter from Senator Kyl to Secretary of State Colin Powell). But cf. Response of Sec'y of State Condoleezza Rice to a Question for the Record Submitted by Sen. Joseph Biden (No. 12), Comm. on Foreign Relations, Feb. 16, 2005, reprinted in 151 CONG. REC. S8532 (daily ed. July 20, 2005) (noting that "the U.S. does not support the CTBT and will not become a party to it").
27. For concerns expressed by Senator Kyl about obligations that may be entailed by the signature of treaties, see U.S. SENATE REPUBLICAN POLICY COMM., UNRATIFIED AND UNSIGNED TREATIES STILL CONSTRAIN U.S. ACTION (2006), http://rpc.senate. gov/files/May1605UnsignedTreatiesMS. pdf.
28. Vienna Convention on the Law of Treaties arts. 2(1)(b), 11-17, May 23, 1969, 1155 U.N.T.S. 331 [hereinafter Vienna Convention]; see also ANTHONY AUST, MODERN TREATY LAW AND PRACTICE 75 (2000).
29. See Vienna Convention, supra note 22, art. 11.
30. See CONG. RESEARCH SERV., 106TH CONG., TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF THE UNITED STATES SENATE 113 (Comm. Print 2001) [hereinafter CRS Study].
31. See, e.g., AUST, supra note 22, at 83; J. MERVYN JONES, FULL POWERS AND RATIFICATION 79 (1946);
32. ARNOLD DUNCAN MCNAIR, THE LAW OF TREATIES 87-88 (1938).
33. See IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 582 (6th ed. 2003);
34. FRANCIS O. WILCOX, THE RATIFICATION OF INTERNATIONAL CONVENTIONS 21-22 (1935).
35. See, e.g., JOSE SETTE CAMARA, THE RATIFICATION OF INTERNATIONAL TREATIES 23-28 (1949).
36. See Martin A. Rogoff, The International Legal Obligations of Signatories to an Unratified Treaty, 32 ME. L. REV. 263, 268 n.12 (1980).
37. See JONES, supra note 25, at 74. Treaties concluded by the United States prior to the Constitution, such as trade and alliance treaties with France during the Revolutionary War and the peace treaty with Great Britain that ended the war, specifically called for an exchange of ratifications after signature, and the Articles of Confederation provided that treaties had to be approved by a supermajority of the Continental Congress.
38. See JONES, supra note 25, at 76-77; see also, e.g., 5 JOHN BASSETT MOORE, A DIGEST OF INTERNATIONAL LAW 189 (1906) (describing a treaty negotiation with Spain in 1819 in which Secretary of State John Quincy Adams explained to the Spanish minister that "by the nature of our Constitution, the full powers of our ministers never are or can be unlimited").
39. JONES, supra note 25, at 77.
40. See J. Mervyn Jones, The Retroactive Effect of the Ratification of Treaties, 29 AM. J. INT'L L. 51 (1935);
41. see also Edward T. Swaine, Unsigning, 55 STAN. L. REV. 2061, 2069 n.38 (2003).
42. See Vienna Convention, supra note 22, art. 28.
43. Id. art. 18.
44. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES, supra note 1, at 145, 145 n.2 (documenting executive branch statements). The United States has signed the Vienna Convention. There is thus a further question of whether the Article 18 object and purpose obligation applies, as a matter of customary international law, to the U.S. signature of the Vienna Convention itself and, if so, what that obligation entails. For example, as a signatory to the Vienna Convention, is the United States perhaps bound not to violate Article 18 because doing so would defeat the object and purpose of that treaty? For reasons discussed below in Part IV, the answer should be no.
45. The Nixon Administration signed the Vienna Convention in 1970 and transmitted it to the Senate in 1971. In its Letter of Submittal to the President, the State Department described the Convention as "set[ting] forth a generally agreed body of rules to govern all aspects of treaty making and treaty observance." Letter of Submittal from William P. Rogers, U.S. Sec'y of State, to President Richard M. Nixon (Oct. 18, 1971), in Message from the President of the United States Transmitting the Vienna Convention on the Law of Treaties, 92d Cong., 1st Sess. at 1 (Nov. 22, 1971). In commenting on Article 18's object and purpose rule, the State Department observed that "[t]his rule is widely recognized in customary international law." Id. at 2. In response to a 1979 letter from fourteen Senators expressing concern about possible legal obligations that might be entailed by U.S. signature of the Law of the Sea Convention, Ambassador Elliot Richardson stated that signature "imposes no obligation other than refraining from acts which would defeat the object and purpose of the treaty," and that "[t]he Vienna Convention provisions, including Article 18, are for the most part codifications of customary international law." The Law of Treaties and Other International Agreements, 1979 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW § 1, at 692. In 2001, in an answer to a question for the record posed by Senator Jesse Helms, Secretary of State Colin Powell reaffirmed the State Department's view that Article 18 reflects customary international law. See Treaties and Other International Agreements, 2001 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 212-13.
46. 543 U.S. 551 (2005). In Roper, the Supreme Court held that the execution of juvenile offenders (i.e., those people who commit capital offenses while under the age of 18) constitutes cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution. Although the Court did not rely on the U.S. signature of the Convention on the Rights of the Child, it did note that every nation in the world except for the United States and Somalia had ratified the Convention. Id. at 576. In his dissent, Justice Scalia argued, in reference to the U.S. failure to ratify the Convention, that "[u]nless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States, I cannot see how this evidence favors, rather than refutes, its position." Id. at 605 (Scalia, J., dissenting).
47. See, e.g., Panel Discussion, Human Rights and Human Wrongs: Is the United States Death Penalty System Inconsistent with International Human Rights Law?, 67 FORDHAM L. REV. 2793, 2812 (1999) (comments of Professor William Schabas);
48. Connie de la Vega & Jennifer Fiore, The Supreme Court of the United States Has Been Called Upon to Determine the Legality of the Juvenile Death Penalty in Michael Domingues v. State of Nevada, 21 WHITTIER L. REV. 215, 224 (1999).
49. But see Curtis A. Bradley, The Juvenile Death Penalty and International Law, 52 DUKE L.J. 485, 512-13 (2002) (disputing this claim).
50. See, e.g., Bill Gertz, Albright Says U.S. Bound by Nuke Pact, WASH. TIMES, Nov. 2, 1999, at A1 (quoting letter from Secretary of State Madeleine Albright to foreign ministers referring to the United States' "obligations as a signatory under international law"); President William J. Clinton, Remarks at Press Conference on the Comprehensive Test Ban Treaty (Oct. 14, 1999) ("I signed that treaty, it still binds us unless I go, in effect, and erase our name - unless the President does that and takes our name off, we are bound by it."), http://www.fas.org/nuke/control/ ctbt/text/101499clintonstatement.htm (last visited Mar. 18, 2007);
51. see also Patricia Hewitson, Nonproliferation and Reduction of Nuclear Weapons: Risks of Weakening the Multilateral Nuclear Nonproliferation Norm, 21 BERKELEY J. INT'L L. 405, 463-64 (2003) (arguing that "resumption of U.S. testing by means of nuclear explosion would defeat the object" of the CTBT);
52. Sean D. Murphy, Contemporary Practice of the United States Relating to International Law, 94 AM. J. INT'L L. 137, 139, n.15 (2000) (stating that "the United States presumably remains bound under customary international law (as evidenced by Article 18 of the Vienna Convention on the Law of Treaties) to refrain from acts that would defeat the object and purpose of the CTBT," but noting that "[w]hether that obligation requires that the United States refrain from nuclear testing is unclear"). Senator Trent Lott responded that "the Senate vote serves to release the United States from any possible obligations as a signatory of the negotiated text of the treaty."
53. Bill Gertz, Lott Hits Clinton's Stance on Nuke Pact, WASH. TIMES, Nov. 3, 1999, at A1. In arguing that there continues to be an object and purpose obligation under this treaty, some commentators have noted that the treaty remained on the Senate's Executive Calendar despite that body's rejection of the treaty.
54. See, e.g., Murphy, supra. For a discussion of the president's power to withdraw a treaty from Senate consideration, see David C. Scott, Presidential Power to "Un-Sign" Treaties, 69 U. CHI. L. REV. 1447 (2002).
55. See, e.g., Thomas Michael McDonnell, Cluster Bombs over Kosovo: A Violation of International Law?, 44 ARIZ. L. REV. 31, 107 (2002);
56. see also Michael P. Scharf, The ICC's Jurisdiction over the Nationals of Non-Party States: A Critique of the U.S. Position, 64 LAW & CONTEMP. PROBS. 67, 94 (2001) ("Although the United States has not yet ratified Protocol I, it has signed the Protocol (during the Carter Administration), and therefore it has an international obligation 'to refrain from acts which would defeat the object and purpose of the treaty' pending ratification or Senate defeat.").
57. Ryan Goodman & Derek Jinks, Measuring the Effects of Human Rights Treaties, 14 EUR. J. INT'L L. 171, 173 (2003);
58. see also Barbara Crossette, U.N. Endorses a Treaty to Halt All Nuclear Testing, N.Y. TIMES, Sept. 11, 1996, at A3 (quoting Professor Thomas Franck for the proposition that "[t]he Vienna Convention provides that between the time of signing and ratifying, a state has a legal obligation not to act in a manner inconsistent with the agreement") (emphasis added).
59. See Vienna Convention, supra note 22, art. 19. This broad "object and purpose" argument concerning permissible reservations has been made by the Human Rights Committee that monitors compliance with the International Covenant on Civil and Political Rights. See Human Rights Committee, General Comment No. 24, U.N. Doc. CCPR/C/21/Rev.1/Add.6 (Apr. 11, 1994). For a critique of this claim based on the text and drafting history of Article 19, see Bradley, supra note 38, at 503-05. The "object and purpose" obligation under Article 18 may be narrower than the one under Article 19. Article 18 refers to actions that "would defeat" the object and purpose of a treaty, whereas Article 19 refers to reservations that are "incompatible with" the object and purpose of a treaty. Moreover, Article 18 is focused on the interim period between signature and ratification, whereas Article 19 is focused on the ongoing relationship between a party and a treaty it has ratified.
60. Bolton Letter, supra note 16. Before being appointed to that position, Mr. Bolton had expressed concern that President Clinton's signature of the International Criminal Court treaty would bind the United States not to defeat the object and purpose of the treaty. See John R. Bolton, Editorial, Unsign That Treaty, WASH. POST, Jan. 4, 2001, at A21;
61. see also John R. Bolton, Is There Really "Law" in International Affairs?, 10 TRANSNAT'L L. & CONTEMP. PROBS. 1, 47-48 (2000) (expressing concern about the Clinton Administration's claim that the United States was still bound by the object and purpose of the Comprehensive Test Ban Treaty despite the Senate's rejection of it);
62. John R. Bolton, Should We Take Global Governance Seriously?, 1 CHI. J. INT'L L. 205, 211-12 (2000) (criticizing the Clinton Administration's reliance on the object and purpose of the treaty after it had been rejected by the Senate).
63. Marc Grossman, Under Sec'y for Political Affairs, U.S. Dep't of State, Remarks to the Center for Strategic and International Studies (May 6, 2002), available at http://www.state.gov/p/us/rm/9949-htm. In a separate statement, Secretary of Defense Donald Rumsfeld explained several concerns that the Administration had about the treaty: "the lack of adequate checks and balances on powers of the ICC prosecutors and judges; the dilution of the U.N. Security Council's authority over international criminal prosecutions; and the lack of an effective mechanism to prevent politicized prosecutions of American servicemembers and officials."
64. Press Release, U.S. Dep't of Def., Secretary Rumsfeld Statement on the ICC Treaty (May 6, 2002), available at http://www.defenselink.mil/ Releases/Release.aspx?ReleaseID=3337.
65. Pierre-Richard Prosper, U.S. Ambassador for War Crimes Issues, Foreign Press Center Briefing (May 6, 2002), available at http://fpc.state.gov/ 9965.htm.
66. See Rome Statute, supra note 14, arts. 86, 89.
67. Prosper, supra note 45. Congress subsequently enacted the American Servicemembers' Protection Act of 2002, which broadly precludes federal, state, and local government assistance to the ICC. See Pub. L. No. 107-206, 116 Stat. 899 (2002). The Act also authorizes the president to use "all means necessary and appropriate" to obtain the release of U.S. and allied soldiers and government employees detained or imprisoned by or on behalf of the court. Id. § 2008.
68. See Press Statement, U.S. Dep't of State, U.S. Signs 100th Article 98 Agreement (May 3, 2005), available at http://www.state.gov/r/pa/prs/ ps/2005/45573.htm;
69. U.S. Department of State, Article 98 Agreements and the International Criminal Court, http://www.state.gov/t/pm/art98/ (last visited Mar. 18, 2007). The American Servicemembers' Protection Act, 116 Stat. 899, prohibits certain types of assistance to countries that refuse to conclude Article 98 agreements with the United States. The president has the authority under the Act, however, to waive the prohibition, and he has done so for some countries.
70. See, e.g., Memorandum from President George W. Bush to the U.S. Sec'y of State, Waiving Prohibition on United States Military Assistance with Respect to Various Parties to the Rome Statute Establishing the International Criminal Court (Oct. 6, 2006), available at http://www.whitehouse.gov/ news/releases/2006/10/print/20061002-7.html.
71. Rome Statute, supra note 14, art. 98.
72. See. e.g., Chet J. Tan, Jr., The Proliferation of Bilateral Non-Surrender Agreements Among Non-Ratifiers of the Rome Statute of the International Criminal Court, 19 AM. U. INT'L L. REV. 1115 (2004);
73. James Crawford, Philippe Sands & Ralph Wilde, Joint Opinion, In the Matter of the Statute of the International Criminal Court and In the Matter of Bilateral Agreements Sought by the United States Under Article 98(2) of the Statute (June 5, 2003), available at http://www.humanrightsfirst.org/ international_justice/Art98_061403.pdf. Because of its notification that it does not intend to become a party to the treaty, the United States is not bound to the object and purpose obligation for that treaty. Commentators have argued, however, that nations that are parties or signatories to the treaty are violating international law if they sign these agreements with the United States.
74. U.S. CONST. art. II, § 2.
75. See Brannon P. Denning & Michael D. Ramsey, American Insurance Association v. Garamendi and Executive Preemption in foreign Affairs, 46 WM. & MARY L. REV. 825, 918 (2004); cf. Clinton v. New York, 524 U.S. 417 (1998) (invalidating Line Item Veto Act based on failure to comply with procedural requirements for legislation); INS v. Chadha, 462 U.S. 919 (1983) (invalidating legislative veto provision based on failure to comply with procedural requirements for legislation).
76. See, e.g., Missouri v. Holland, 252 U.S. 416 (1920). For academic discussion of the relationship between the treaty power and U.S. federalism, compare Curtis A. Bradley, The Treaty Power and American Federalism, 97 MICH. L. REV. 390 (1998) [hereinafter Bradley (1998)],
77. Curtis A. Bradley, The Treaty Power and American Federalism, Part II, 99 MICH. L. REV. 98 (2000),
78. and Nicholas Quinn Rosenkranz, Executing the Treaty Power, 118 HARV. L. REV. 1867 (2005),
79. with David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 MICH. L. REV. 1075 (2000),
80. and Edward T. Swaine, Does Federalism Constrain the Treaty Power?, 103 COLUM. L. REV. 403 (2003).
81. See, e.g., David Sloss, International Agreements and the Political Safeguards of Federalism, 55 STAN. L. REV. 1963 (2003).
82. See generally Jack N. Rakove, Solving a Constitutional Puzzle: The Treatymaking Clause as a Case Study, 1 PERSP. AM. HIST. 233 (1984);
83. Charles Warren, The Mississippi River and the Treaty Clause of the Constitution, 2 GEO. WASH. L. REV. 271 (1934).
84. THE FEDERALIST NO. 75, at 451 (Alexander Hamilton) (Clinton Rossiter ed., 1961);
85. see also JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 557 (1833) ("The president is the immediate author and finisher of all treaties . . . . But no treaty, so formed, becomes binding upon the country, unless it receives the deliberate assent of two thirds of the senate.");
86. HENRY WHEATON, ELEMENTS OF INTERNATIONAL LAW 187 (1836) ("In some republics, as in that of the United States of America, the advice and consent of the senate is essential to enable the chief executive magistrate to pledge the national faith in this form.").
87. THE FEDERALIST NO. 75, supra note 56, at 451; see also THE FEDERALIST NO. 69, 419 (Alexander Hamilton) (distinguishing the proposed president from the British monarch and noting that the president, unlike the British monarch, could not make treaties on his own).
88. The president's role in triggering signing obligations is distinguishable from his role in the formation of general rules of customary international law. Although the president can take actions along with other nations that may affect the development of customary international law, he cannot unilaterally create customary international law obligations for the United States.
89. See Michael D. Ramsey, Executive Agreements and the (Non)Treaty Power, 77 N.C. L. REV. 133 (1998). The Constitution completely prohibits states from entering into any "Treaty, Alliance, or Confederation," and requires them to obtain congressional consent before entering into any "Agreement or Compact." U.S. CONST. art. I, § 10.
90. See CRS Study, supra note 24, at 39.
91. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-11 (1952) (Frankfurter, J., concurring); United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 327-28 (1936).
92. See CONG. RESEARCH SERV., 95TH CONG., INTERNATIONAL AGREEMENTS: AN ANALYSIS OF EXECUTIVE REGULATIONS AND PRACTICES (Comm. Print 1977) (finding that in the period 1946-1972, 88.3% of executive agreements were based at least in part on statutory authority, 6.2% were based on treaties, and 5.5% wete based solely on executive authority);
93. C.H. McLaughlin, The Scope of the Treaty Power in the United States II, 43 MINN. L. REV. 651, 721 (1959) (concluding that only 5.9% of executive agreements entered into between 1938 and 1957 were based exclusively on the president's constitutional authority).
94. See Am. Ins. Ass'n v. Garamendi, 539 U.S. 396 (2003) (settlement of war-related claims); Dames & Moore v. Regan, 453 U.S. 654 (1981) (settlement of claims against foreign nation as part of resolution of hostage crisis); United States v. Pink, 315 U.S. 203 (1942) (agreement giving effect to Soviet property claims as part of recognition of Soviet Union); United States v. Belmont, 301 U.S. 324 (1937) (same as Pink).
95. Compare, e.g., Bruce Ackerman & David Golove, Is NAFTA Constitutional?, 108 HARV. L. REV. 799 (1995),
96. and David M. Golove, Against Free-Form Formalism, 73 N.Y.U. L. REV. 1791 (1998),
97. with Laurence H. Tribe, Taking Text and Structure Seriously: Reflections on Free-Form Method in Constitutional Interpretation, 108 HARV. L. REV. 1221 (1995).
98. See, e.g., Joel R. Paul, The Geopolitical Constitution: Executive Expediency and Executive Agreements, 86 CAL. L. REV. 671 (1998);
99. Peter J. Spiro, Treaties, Executive Agreements, and Constitutional Method, 79 TEX. L. REV. 961 (2001);
100. John C. Yoo, Laws as Treaties?: The Constitutionality of Congressional-Executive Agreements, 99 MICH. L. REV. 757 (2001);
101. see also CURTIS A. BRADLEY & JACK L. GOLDSMITH, FOREIGN RELATIONS LAW: CASES AND MATERIALS 473-74, 477 (2d ed. 2006) (documenting Senate insistence that significant arms control agreements be concluded pursuant to the Article II process). But see RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES, supra note 1 , at § 303 cmt. e (1987) (suggesting that treaties and congressional-executive agreements are completely interchangeable). In 1999, the full Congress passed legislation that prohibits the United States from becoming a party to the ICC by any means other than by an Article II treaty. See 22 U.S.C. § 7401 (2000).
102. See, e.g., Made in the USA Found, v. United States, 56 F. Supp. 2d 1226, 1319-22 (N.D. Ala. 1999), vacated by 242 F.3d 1300 (11th Cir. 2001).
103. It seems unlikely, therefore, that presidents have complete freedom of discretion in choosing whether to conclude an agreement as an Article II treaty or an executive agreement, as some commentators have assumed. See Lisa L. Martin, The President and International Commitments: Treaties as Signaling Devices, 35 PRES. STUD. Q. 440 (2005);
104. John K. Setear, The President's Rational Choice of a Treaty's Preratification Pathway: Article II, Congressional-Executive Agreement, or Executive Agreement?, 31 J. LEGAL STUD. S5 (2002).
105. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (Jackson, J., concurring); see also Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2774 n.23 (2006) (citing Justice Jackson's concurrence).
106. LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 222 (2d ed. 1996);
107. see also 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 649 (3d ed. 2000) ("That the power to conclude executive agreements coincides perfectly with the treaty power is untenable . . . since such a conclusion would emasculate the structurally crucial senatorial check on executive discretion that the Framers so carefully embodied in the Constitution.").
108. See, e.g., RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES, supra note 1, at § 303(4) (1987); RESTATEMENT (SECOND) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 121 (1965); CRS Study, supra note 24, at 26. An early sole executive agreement relating to the Commander-in-Chief power was an agreement made by President Madison with Great Britain during the War of 1812 concerning treatment of prisoners of war. See Cartel for the Exchange of Prisoners of War, U.S.-Gr. Brit., May 12, 1813 , reprinted in 2 TREATIES AND OTHER INTERNATIONAL ACTS OF THE UNITED STATES OF AMERICA, 1776-1818, at 557 (Hunter Miller ed., 1931). For debate over whether the Article II "vesting clause" (which provides that "the executive Power shall be vested in a President of the United States of America") is also a source of presidential power, compare Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L.J. 231 (2001) (arguing that it is),
109. with Curtis A. Bradley & Martin S. Flaherty, Executive Power Essentialism and Foreign Affairs, 102 MICH. L. REV. 545 (2004) (arguing that it is not).
110. See, e.g., Ramsey, supra note 59. In Holmes v. Jennison, 39 U.S. (14 Pet.) 540 (1840), the Supreme Court held that Vermont could not extradite a criminal suspect to Canada because, even though the extradition arrangement did not constitute a formal "treaty," it did constitute an "agreement" and thus was precluded by Article I, Section 10 of the Constitution because of the absence of congressional authorization. A plurality of the Court quoted Vattel's description of "treaties" as compacts made "either for perpetuity, or for a considerable time" and his statement that "[t]he compacts which have temporary matters for their object, are called agreements, conventions, and pactions. They are accomplished by one single act, and not by repeated acts." Id. at 572; see also 3 E. DE VATTEL, THE LAW OF NATIONS OR THE PRINCIPLES OF NATURAL LAW 160 (Charles G. Fenwick trans., Carnegie Inst. Wash. 1916) (1758).
111. A classic example of a one-time agreement is a claims settlement. For documentation of the longstanding practice of settlement of claims through executive agreement, see, for example, SAMUEL B. CRANDALL, TREATIES, THEIR MAKING AND ENFORCEMENT 85-87 (1904) ;
112. Ingrid Brunk Wuerth, The Dangers of Deference: International Claim Settlement by the President, 44 HARV. INT'L L.J. 1 (2003).
113. A common short-term agreement is a modus vivendi, which is "an instrument recording an international agreement of temporary or provisional nature intended to be replaced by an arrangement of a more permanent and detailed chatacter." U.N. TREATY COLLECTION, TREATY REFERENCE GUIDE (1999), available at http://untreaty.un.org/English/guide.pdf. For examples of modi vivendi accomplished through executive agreement, see CRANDALL, supra, at 87-88.
114. See cases cited supra note 63.
115. See United States v. Belmont, 301 U.S. 324, 330 (1937); United States v. Pink, 315 U.S. 203, 229; see also Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964) ("Political recognition is exclusively a function of the Executive.").
116. It is also worth noting that Congress appears to have acquiesced in the longstanding practice of presidential settlement of claims. See Dames & Moore v. Regan, 453 U.S. 654, 680-81 (1981).
117. 539 U.S. 396 (2003).
118. Id. at 415.
119. Id. at 416.
120. See also Dames & Moore, 453 U.S. at 682 (noting that "the President does have some measure of power to enter into executive agreements") (emphasis added).
121. Garamendi, 539 U.S. at 415. The dissenters further noted that the Court's "cases do not catalog the subject matter meet for executive agreement, but we have repeatedly acknowledged the President's authority to make such agreements to settle international claims." Id. at 436 (Ginsburg, J., dissenting).
122. It is possible that Congress lacks the power to abolish the death penalty at the state level. Cf. United States v. Lopez, 514 U.S. 549 (1995) (holding that Congress exceeded its authority under the Commerce Clause in criminalizing the possession of firearms near schools). The Supreme Court has held, however, that the treaty power is not limited to the scope of Congress's legislative powers. See Missouri v. Holland, 252 U.S. 416 (1920). It is uncertain whether there are any subject matter limitations on the treaty power. See Bradley (1998), supra note 53, at 429-33.
123. MICHAEL J. GLENNON, CONSTITUTIONAL DIPLOMACY 173 (1990).
124. Id.
125. Id.
126. 539 U.S. at 415.
127. See supra text accompanying note 12.
128. President Ronald Reagan, Remarks at Memorial Day Ceremonies at Arlington National Cemetery (May 31, 1982), available at http://www.reagan.utexas. edu/archives/speeches/1982/53182A.htm.
129. Written Reply of Mark B. Feldman, Deputy Legal Adviser, U.S. Dep't of State, to Questions Presented by Senator Jacob K. Javits, in Marian L. Nash, Contemporary Practice of the United States Relating to International Law, 14 AM. J. INT'L L. 917, 932 (1980); see also CRS Study, supra note 24 at 113-16; RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES, supra note 1, at § 312 reporters' note 7 (1987) ("Provisional commitment . . . reflects an understanding that the President has some implied authority to commit the United States on a provisional basis. How far that authority extends is not clear . . . .").
130. See Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 8 (1936) (stating that extradition "is not confided to the Executive in the absence of treaty or legislative provision"). But see QUINCY WRIGHT, THE CONTROL OF AMERICAN FOREIGN RELATIONS 237 (1922) (noting two controversial examples of unilateral executive extraditions).
131. Valentine, 299 U.S. at 9. In the Jonathan Robbins case, in which John Marshall famously defended the authority of President Adams to extradite a suspect to Great Britain, the president was relying on the U.S.-British extradition treaty. See John Marshall, Address Before the House of Representatives (Mar. 7, 1800), in 10 ANNALS OF CONG. 596, 613-14 (1851);
132. see also Ruth Wedgwood, The Revolutionary Martyrdom of Jonathan Robbins, 100 YALE L.J. 229 (1990).
133. Customary international law might impose obligations on the United States even when the president acts beyond his domestic constitutional authority. Cf. Vienna Convention, supra note 22, art. 46 (allowing for only a narrow ultra vires defense to treaty obligations). But these obligations would not be effective domestically in the United States, since, whatever its status in the U.S. legal system, customary international law does not trump the Constitution. For a description of the academic debates over the domestic status of customary international law, see Curris A. Bradley, Jack L. Goldsmith & David H. Moore, Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 HARV. L. REV. 869 (2007).
134. Because the meaning of Article 18 is ambiguous, it is appropriate, even under the terms of the Vienna Convention itself, to look to supplementary evidence of its meaning, including drafting history. See Vienna Convention, supra note 22, art. 32 ("Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion . . . to determine the meaning when the interpretation according to [textual and related sources] leaves the meaning ambiguous or obscure . . . ."); see also AUST, supra note 22, at 197 ("The preparatory work . . . of a treaty is not a primary means of interpretation, but it is an important supplementary means."). Courts in the United States regularly look to drafting history when interpreting treaties. See, e.g., Zicherman v. Korean Air Lines Co., 516 U.S. 217, 225-28 (1996).
135. Codification of International Law: Part III - Law of Treaties, 29 AM. J. INT'L L. 653, 778 (Supp. 1935) (emphasis added);
136. see also SAMUEL B. CRANDALL, TREATIES, THEIR MAKING AND ENFORCEMENT 344 (2d ed. 1916) (stating that a treaty "is in good faith provisionally binding from the date of signing in the sense that neither party may, without repudiating the proposed treaty, voluntarily place itself in a position where it cannot comply with the conditions as they existed at the time the treaty was signed.") (emphasis added); JONES, supra note 25, at 81 ("It has also been suggested that a State must not do anything between signature and ratification that would render ratification superfluous or useless. . . . There is no evidence in the practice of States to prove the existence of any such rule.").
137. See Maria Frankowska, The Vienna Convention on the Law of Treaties Before United States Courts, 28 VA. J. INT'L L. 281, 289-91 (1988).
138. See Summary Records of the 3rd Session, [1951] 1 Y.B. Int'l L. Comm'n 34, U.N. Doc. A/CN.4/SER.A/1951;
139. Documents of the 3rd Session Including the Report of the Commission to the General Assembly, [1951] 2 Y.B. Int'l L. Comm'n 73, U.N. Doc. A/CN.4/SER.A/1951/Add. 1; see also CAMARA, supra note 27, at 63 ("[T]he rule laid down by the Harvard Research Group embodies no principle of International Law. It belongs to the vague and dubious field of international morals.").
140. Documents of the 4th Session Including the Report of the Commission to the General Assembly, [1952] 2 Y.B. Int'l L. Comm'n 54, U.N. Doc. A/CN.4/SER.A/1952/Add. 1.
141. See Summary Records of the 3rd Session, [1951] 1 Y.B. Int'l L. Comm'n 39-42, U.N. Doc. A/CN.4/SER.A/1951.
142. Id. at 42 (comments of Jesus M. Yepes from Columbia) (emphasis added).
143. Documents of the 5th Session Including the Report of the Commission to the General Assembly, [1953] 2 Y.B. Int'l L. Comm'n 110, U.N. Doc. A/CN.4/SER.A/1953/Add.1 (emphasis added). As this statement suggests, the drafters of the object and purpose obligation may have had in mind primarily bilateral rather than multilateral Treaties.
144. See also, e.g., Summary Records of the 1st Part of the 17th Session, [1965] 1 Y.B. Int'l L. Comm'n 92, U.N. Doc. A/CN.4/SER.A/1965 (comments of Roberto Ago, delegate from Italy) ("When drafting [what became Article 18] the Commission had been thinking mainly of bilateral treaties.").
145. See Jan Klabbers, How to Defeat a Treaty's Object and Purpose Pending Entry Into Force: Toward Manifest Intent, 34 VAND. J. TRANSNAT'L L. 283, 308-13 (2001).
146. Documents of the 14th Session Including the Report of the Commission to the General Assembly, [1962] 2 Y.B. Int'l L. Comm'n 110, U.N. Doc. A/CN.4/SER.A/1962/Add.1 (emphasis added).
147. See also, e.g., AUST, supra note 22, at 94 ("The signatory state must therefore not do anything which would affect its ability fully to comply with the treaty once it has entered into force."); Written Reply of Mark B. Feldman, supra note 87, at 733 ("In the majority of cases the obligation not to defeat the object and purposes of the treaty means a duty to refrain from taking steps that would render impossible future application of the treaty when ratified.").
148. See AUST, supra note 22, at 94.
149. See id. at 94-95.
150. There is no analogue to even the narrow version of the Article 18 obligation under domestic principles of agency law. Under that law, when an agent signs a contract but lacks the authority to bind the principal, the principal has no interim legal obligation as a result of the signature. See generally RESTATEMENT (THIRD) OF AGENCY § 4 (2006). Although there are circumstances under which "precontractual liability" will be imposed under contract law, "[i]n the absence of sufficient evidence that the parties intended to be legally bound in some way, courts generally conclude that the parties have engaged merely in preliminary negotiations and do not impose liability for inducing reliance absent misrepresentation, express promise, or similar inducement." Alan Schwartz & Robert E. Scott, Precontractual Liability and Preliminary Agreements, 120 HARV. L. REV. 661, 664 n.4 (2007).
151. See Vienna Convention, supra note 22, art. 25.
152. AUST, supra note 22, at 94; see also Klabbers, supra note 99, at 293-94 ("[T]o hold that a violation of a provision of a treaty prior to its entry into force would defeat the treaty's object and purpose is tantamount to saying that the treaty actually assumes legal force upon signature rather than upon ratification.").
153. Cf. W. Michael Reisman, Unratified Treaties and Other Unperfected Acts in International Law: Constitutional Functions, 35 VAND. J. TRANSNAT'L L. 729, 743 (2002) ("Ratification of treaties in republican systems such as that found in the United States is a critical bulwark of separation of powers and checks and balances. If the international system henceforth assigns legal validity to unratified treaties, that bulwark will be breached.").
154. See supra text accompanying notes 43-50.
155. See Swaine, supra note 32, at 2078-83.
156. See Curtis A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power, 23 CONST. COMMENT. 307 (2006) (discussing somewhat analogous reputational issues between the president and Congress associated with presidential signing statements).
157. A better way of addressing strategic concerns like this one would be to include a clause in the treaty stating that it will not take effect unless and until certain states ratify it. There is a provision like this, for example, in the Nuclear Non-Proliferation Treaty. See Treaty on the Non-Proliferation of Nuclear Weapons art. IX, opened for signature July 1, 1968, 21 U.S.T. 483, 729 U.N.T.S. 161 (requiring ratification by Great Britain, the Soviet Union, and the United States, along with forty other nations, before the treaty would take effect).
158. It could be argued that a continued use of the death penalty by the United States after its signature of a treaty banning the death penalty would involve a form of irreversibility, since the punishment is obviously irreversible for the individuals executed. The executed individuals, however, would not be covered by the treaty (since the United States would not be a party to the treaty until ratification), and the United States' ability to comply with the treaty after ratification would not have been impaired by the pre-ratification executions, just as its ability to comply with the treaty would not have been impaired by executions carried out prior to its signature of the treaty. This argument assumes, as would normally be the case, that the treaty addresses itself only to a class of individuals and not to particular individuals.
159. For the ICC treaty, however, it is arguable that the U.S. practice of concluding non-surrender agreements would impair the ability of the parties to obtain the benefits of the treaty, if those benefits include equal exposure to possible prosecution. See supra text accompanying notes 48-50.
160. The effort to increase the obligations on signatory nations can be seen as part of a more general effort by advocacy groups, international institutions, and some scholars to relax formal and consent-based requirements for the imposition of international obligations. Other examples might include a less practice-based conception of customary international law, restrictions on the ability of nations to opt out of customary international law, concepts of jus cogens norms that are binding without regard to state consent, and severability of purportedly invalid treaty reservations. See Bradley, supra note 38, at 540-41.
161. For a discussion of the validity of reservations, understandings, and declarations, see Curtis A. Bradley & Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U. PA. L. REV. 399 (2000).
162. See CRS Study, supra note 24, at 46-47; Frankowska, supra note 93, at 295-98.
163. See CRS Study, supra note 24, at 46.
164. See id. at 43-49; see also CUMULATIVE DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1981-1988, at 1236-37; The Law of Treaties and Other International Agreements, 1974 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW § 1, at 195-98.
165. The relationship between signed but unratified treaties and the creation of customary international law - an issue relevant, for example, to Alien Tort Statute litigation - is beyond the scope of this Article. See, e.g., Flores v. S. Peru Copper Corp., 343 F.3d 140, 162 (2d Cir. 2003) (stating, in Alien Tort Statute case, that "only States that have ratified a treaty are legally obligated to uphold the principles embodied in that treaty, and the treaty only evidences the customs and practices of those States"). Also beyond the scope of this Article is the relevance of unratified treaties to the interpretation of provisions of the Constitution. See supra note 37 (discussing Supreme Court's reference to an unratified treaty in Roper v. Simmons).
166. See, e.g., AUST, supra note 22, at 94 ("There is not only uncertainty as to whether [Article 18] reflects customary law, but also the extent of the obligation."); LORI F. DAMROSCH ET AL., INTERNATIONAL LAW: CASES AND MATERIALS 476 (4th ed. 2001) ("Whether Article 18 as it now stands is declaratory of prior customary law is uncertain.");
167. PETER MALANCZUK, AKEHURST'S MODERN INTRODUCTION TO INTERNATIONAL LAW 135 (7th ed. 1997) ("There is some authority for this rule in customary law, but the matter is controversial.");
168. SHABTAI ROSENNE, DEVELOPMENTS IN THE LAW OF TREATIES, 1945-1986, at 149 (1989) (noting that "article 18 . . . is in many circles regarded as highly controversial, at least with regard to the question of whether it is declaratory of customary international law or is innovative");
169. IAN SINCLAIR, THE VIENNA CONVENTION ON THE LAW OF TREATIES 43 (2d ed. 1984) (noting that Article 18 "in all probability constitutes at least a measure of progressive development");
170. Konstantinos Magliveras & Dimitris Bourantonis, Rescinding the Signature of an International Treaty: The United States and the Rome Statute Establishing the International Criminal Court, DIPL. & STATECRAFT, Dec. 2003, at 21, 27 ("[T]here is no uniform approach as to whether [Article 18] has the force of customary international law or not.").
171. See supra text accompanying notes 43-45.
172. Furthermore, the Bush Administration's action of sending a formal letter to the United Nations terminating the effect of its signature of the International Criminal Court treaty may make it difficult for the Administration to argue that it has no object and purpose obligation with respect to other treaties - such as the Kyoto Protocol and the Comprehensive Nuclear Test Ban Treaty - that it has denounced through less formal means.
173. Whether the Senate (or at least the Senate Foreign Relations Committee) will make a serious effort to preserve its institutional interests, as opposed to party or individual reelection interests, is a difficult question, especially when the Senate is controlled by members of the president's party. Cf. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2312 (2006).
174. Vienna Convention, supra note 22, art. 18; see, e.g., Hans Blix, Developing International Law and Inducing Compliance, 41 COLUM. J. TRANSNAT'L L. 1, 5 (2002) ("Clearly, in the cases where signature does not signal the state's consent to be bound, a simple but formal announcement by a government clarifying that it will not proceed with ratification or any other form of confirmation will be enough to terminate the limited legal effects that flowed from the signature.").
175. See Vienna Convention, supra note 22, art. 26 ("Every treaty in force is binding upon the parties to it and must be performed in good faith.") (emphasis added).
176. In this sense, "unsigning" is a more straightforward issue of executive power than termination of treaties that have already been ratified, since, unlike the signing power, the president shares the ratification power with the Senate. Nevertheless, presidents have unilaterally terminated ratified treaties. For example, President Bush announced the U.S. termination of the Anti-Ballistic Missile Treaty with Russia in 2002, and President Carter announced the termination of a defense treaty with Taiwan in 1979. In 2005, Secretary of State Condoleeza Rice sent a letter to the Secretary-General of the United Nations announcing that the United States was withdrawing from the Optional Protocol to the Vienna Convention on Consular Relations, which the United States had ratified in 1969, and which gave the International Court of Justice jurisdiction to decide certain disputes. For discussion of whether and to what extent the president has authority to terminate treaties, see DAVID GRAY ADLER, THE CONSTITUTION AND THE TERMINATION OF TREATIES (1986);
177. Raoul Berger, The President's Unilateral Termination of the Taiwan Treaty, 75 NW. U. L. REV. 577 (1980);
178. Louis Henkin, Editorial Comment, Litigating the President's Power to Terminate Treaties, 73 AM. J. INT'L L. 647 (1979).
179. See, e.g., Harold Hongju Koh, On American Exceptional ism, 55 STAN. L. REV. 1479, 1508 (2003).
180. See Swaine, supra note 32, at 2062 ("Unsigning, on this view, was simply being forthright, and by providing more accurate information about the U.S. position, better enabled other signatories and non-parties to promote their own interests.").
181. The Supreme Court had decided Bush v. Gore prior to President Clinton's signing of the treaty. 531 U.S. 98 (2000).
182. For suggestions of how the Senate might accomplish this, see Baker Spring & Brett D. Schaefer, Clearing Out the Bulging Treaty In-Box, THE HERITAGE FOUNDATION, Jan. 8, 1999, http://www.heritage.org/Research/GovernmentReform/bg1241.cfm.