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The Senate Role in Treaty Ratification

Published online by Cambridge University Press:  27 February 2017

Michael J. Glennon
Michael J. Glennon*
Affiliation:
University of Cincinnati College of Law, Senate Foreign Relations Committee
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Extract

Others, though content that treaties should be made in the mode proposed, are averse to their being the supreme law of the land. They insist, and profess to believe, that treaties like acts of assembly, should be repealable at pleasure. This idea seems to be new and peculiar to this country, but new errors, as well as new truths, often appear. These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them absolutely, but on us only so long and so far as we may think proper to be bound by it.

The Federalist No. 64 (Jay)

Type
Research Article
Information
American Journal of International Law , Volume 77 , Issue 2 , April 1983 , pp. 257 - 280
Copyright
Copyright © American Society of International Law 1983

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References

1 Richard, , Foreign Perspective: With Whom Do You Deal? Whom Can You Trust?, in The Tethered Presidency 21 (Franck, T. ed. 1981)Google Scholar (quoting Sir Harold Nicolson as having quoted Sir Edward Grey).

2 See generally Nicolson, H., Diplomacy (1963)Google Scholar; Franck, T. & Weisband, E., Word Politics: Verbal Strategy Among the Superpowers (1971)Google Scholar; Henkin, L., How Nations Behave (2d ed. 1979)Google Scholar.

3 For a comparative survey of constitutional provisions and national practices concerning legislative participation in the treaty-making process, see Wildhaber, L., Treaty-Making Power and Constitution (1971)Google Scholar.

4 See generally Franck, T. & Weisband, E., Foreign Policy by Congress (1979)Google Scholar; Bennet, , Congress in Foreign Policy: Who Needs It?, 57 Foreign Aff. 40 (1978)CrossRefGoogle Scholar.

5 See generally Christopher, , Ceasefire Between the Branches: A Compact in Foreign Affairs, 60 Foreign Aff. 989 (1982)CrossRefGoogle Scholar; Richard, supra note 1; Tower, , Congress Versus the President: The Formulation and Implementation of American Foreign Policy, 60 Foreign Aff. 229 (1981/82)CrossRefGoogle Scholar.

6 The Constitution merely provides that the making of a treaty requires the advice and consent of the Senate. U.S. CONST, art. II, §2, cl. 2.

7 See, e.g., Restatement of the Foreign Relations Law of the United States (Revised) §305, Comment d (Tentative Draft No. 1, 1980) [hereinafter cited as Draft Restatement] (stating that the Senate may condition its consent to a treaty, provided the condition has a plausible relation to the treaty’s content or implementation); Henkin, L., Foreign Affairs and the Constitution 133–34 (1972)Google Scholar (stating that the Senate’s constitutional right to impose reservations as a condition for consent is universally accepted); 14 Whiteman, M., Digest of International Law 138 (1970)Google Scholar; Note, , The Reservation Power and the Connally Amendment, 11 N.Y.U.J. Int’l L. & Pol. 323, 327 (1978)Google Scholar (tracing the Senate practice of adding reservations to treaties to 1794).

8 Jan. 24, 1976, United States-Spain, 27 UST 3005, TIAS No. 8630.

9 S. Exec. Doc. E, 94th Cong., 2d Sess. (1976).

10 Spanish Base Treaty: Hearings on Executive E Before the Senate Comm. on Foreign Relations, 94th Cong., 2d Sess. (1976).

11 S. Exec. Rep. No. 5, 94th Cong., 2d Sess. 11 (1976).

12 Ibid.

13 S. Res. 401, 94th Cong., 2d Sess. (1976); see also 122 Cong. Rec. 19,390 (1976) (ratification vote).

14 For a general discussion of the diplomatic contretemps, see Meron, The Treaty War: The International Legal Effect of Changes in Obligations Initiated by the Congress, in The Tethered Presidency, supra note 1; Panama Canal Treaties: Hearings Before the Senate Comm. on Foreign Relations, 95th Cong., 2d Sess. 122–23 (19.78) [hereinafter cited as Panama Canal Hearings].

15 Letter from Robert J. McCloskey, Assistant Secretary of State for Congressional Relations, to John J. Sparkman, Senate Foreign Relations Committee Chairman (undated) (on file with the author).

16 See S. Exec. Rep. No. 12, 95th Cong., 2d Sess. 10–11 (1978) (alluding to concern over the Spanish Treaty incident).

17 Id. a t 10.

18 See, e.g., letter from Douglas J. Bennet, Jr., Assistant Secretary of State for Congressional Relations, to John J. Sparkman, Chairman of the Senate Foreign Relations Committee (Jan. 26, 1978), reprinted in Panama Canal Hearings, supra note 14, at 49.

19 See letter from Herbert J. Hansell, Legal Adviser to the Department of State, to Michael J. Glennon, Legal Counsel to the Senate Foreign Relations Committee (June 8, 1979), reprinted in 2 United States Foreign Relations Law 199 (Glennon, M. & Franck, T. eds. 1980)Google Scholar [hereinafter cited as Foreign Relations Law].

20 Restatement (Second) of the Foreign Relations Law of the United States §133, Comment c (1965); Draft Restatement, supra note 7, §323, Comment b.

21 14 M. Whiteman, supra note 7, at 138–39. See also Memorandum from the Office of the Legal Adviser of the Department of State, March 22, 1971, to J. W. Fulbright, Chairman of the Senate Foreign Relations Committee, reprinted in S. Exec. Rep. No. 5, 93d Cong., 1st Sess. 15– 16(1973):

In United States law a condition placed by the Senate on its approval of a treaty—whether by reservation or by understanding—and included by the President in the instrument of ratification takes effect as domestic law along with the treaty itself. This is a necessary result of the shared constitutional role of the President and the Senate in the treaty-making process.

An instrument of ratification or adherence executed by the President of the United States sets forth the text of the reservation, understanding, or other instrument as given in the Senate resolution. . . .

Reservations, understandings, or declarations of intent or interpretation, in order to have international effect, are incorporated in the case of a bilateral treaty. . . .

Ibid.

22 Draft Restatement, supra note 7, §323, paras. 1–2.

23 Id., §323, Comment b.

24 Ibid.

25 Ibid.

26 See infra note 29.

27 See, e.g., S. Exec. Rep. No. 12, supra note 16, at 9–10. The President’s power in this regard seems settled. “As ‘sole organ,’ “ Professor Henkin has written, “the President determines . . . how, when, where and by whom the United States should make or receive communications, and there is nothing to suggest that he is limited to time, place, or forum.” L. Henkin, supra note 7, at 47.

28 Draft Restatement, supra note 7, §305, Comment d.

29 In 1800, Marshall, John (then a congressman) described the President as “the sole organ of the nation in its foreign relations.” 10 Annals of Congress 613 (1800)Google Scholar. Justice Sutherland quoted this phrase to support his theory of extensive presidential power over the conduct of foreign policy. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936). However, as Professor Berger has pointed out, it is unlikely that Marshall had such a theory in mind, since he stated that Congress “may unquestionably prescribe the mode” of treaty compliance in the very speech in which he called the President the “sole organ.” Berger, , The President’s Unilateral Termination of the Taiwan Treaty, 75 Nw. U.L. Rev. 577, 590 (1980)Google Scholar.

30 14 M. Whiteman, supra note 7, at 140.

31 See supra notes 12–17 and accompanying text.

32 The so-called Niagara Reservation could be viewed as such a condition. In 1950, the United States and Canada reached an agreement governing the use of the Niagara River, designed to protect the scenic beauty of Niagara Falls and to allow diversion of waters from the river for generation of hydroelectric power. Convention on Uses of the Waters of the Niagara River, Feb. 27, 1950, United States-Canada, 1 UST 694, TIAS No. 2130. The U.S. Senate, uncertain as to how the U.S. share of the waters should be utilized, adopted a “reservation” to the treaty providing that the question would be resolved by an act of Congress, and that the water would not be utilized in the interim. The Government of Canada accepted the reservation, and the treaty entered into force. Henkin, , The Treaty Makers and the Law Makers: The Niagara Reservation, 56 Colum. L. Rev. 1151, 1155–58 (1956)Google Scholar. Congress then failed to take action on the issue over the next 5 years, a delay that proved too much for “the energetic Mr. [Robert] Moses of the New York Power Authority,” who brought suit to have the reservation declared null and to have a license for hydroelectric development issued to the authority. Id. at 1159. The United States Court of Appeals for the District of Columbia Circuit held that the reservation was not really part of the treaty, as it dealt with a matter of purely domestic concern, and therefore was not legally enforceable; the Supreme Court, however, vacated the appeals court’s judgment. Power Auth. v. Federal Power Comm’n, 247 F.2d 538 (D.C. Cir.), vacated as moot sub nam. American Pub. Power Ass’n v. Power Auth., 355 U.S. 64 (1957).

33 See 14 M. Whiteman, supra note 7, at 138–39.

34 See supra note 17 and accompanying text.

35 See supra note 29.

36 The question whether the Senate may condition its consent to a treaty by prescribing the procedure the President must follow in terminating it gave rise to considerable controversy in the aftermath of President Carter’s unilateral termination effective January 1, 1980, of the Mutual Defense Treaty between the United States and the Nationalist Chinese on Taiwan (Treaty of Mutual Defense, Dec. 2, 1954, United States-China, 6 UST 433, TIAS No. 3178). The Department of Justice, relying upon the President’s position as the nation’s “sole representative in foreign affairs,” argued that the President alone can determine whether a treaty should be terminated. The Department cited in support the dictum of Justice Sutherland in United States v. Curtiss-Wright Export Corp., 299 U.S. at 319, that the President is the “sole organ” of the United States in foreign policy. See infra note 131.

The Senate Foreign Relations Committee did not accept this view, believing that either the Senate acting alone (by attaching a condition to a treaty) or the Congress as a whole (by statute) could constitutionally limit the President’s authority to terminate a treaty. The committee based its reasoning on the separation of powers analysis in Justice Jackson’s concurring opinion in the Steel Seizure Case. Jackson argued that independent presidential authority is at its height when Congress expressly authorizes or approves an action, is at its nadir when Congress manifests its disapproval, and is in a middle, “twilight” zone when Congress is silent. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–38 (1952) (Jackson, J., concurring). When Congress disapproves of a presidential action, the Justice said, the President may act only if Congress is without power over the subject. Ibid. See generally Glennon, , Treaty Process Reform: Saving Constitutionalism without Destroying Diplomacy, 52 U. Cin. L. Rev. (forthcoming, 1983)Google Scholar.

The reporters of the American Law Institute support the Senate’s position in the proposed text of the new Restatement. Draft Restatement, supra note 7, §352, Reporters’ Note 3.

37 Draft Restatement, supra note 7, §352, Reporters’ Note 3.

38 Ibid.

39 See, e.g., Elias, T., The Modern Law of Treaties 28 (1974)Google Scholar.

40 14 M. Whiteman, supra note 7, at 138.

41 T. Elias, supra note 39, at 28–29; 14 M. Whiteman, supra note 7, at 140–41.

42 As the “supreme law of the land,” U.S. treaties enjoy equal status with federal statutes. U.S. Const, art. VI, cl. 2. The Supreme Court has held, however, that insofar as a treaty is a contract, its duties must be carried out by a political branch of the Government and not by the judiciary. Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829). Thus, treaty terms requiring legislative action are not enforced by the courts until Congress has enacted the appropriate legislation.

There is some controversy as to whether a treaty becomes law for domestic purposes on the date it enters into force or on the date the President formally proclaims it. Draft Restatement, supra note 7, §316, Comment b. The question is of minor importance, as Presidents are generally swift to issue such proclamations. See ibid.

43 Memorandum from Michael J. Glennon and Frederick S. Tipson to members of the Senate Foreign Relations Committee (June 25, 1979), reprinted in 4 SALT II Treaty: Hearings on Ex. Y Before the Senate Comm. on Foreign Relations, 96th Cong., 1st Sess. 18, 23 (1979) [hereinafter cited as SALT II Hearings].

44 Professor Rostow appeared as chairman of the Committee on the Present Danger, a group opposed to ratification of the SALT II Treaty.

45 4 SALT II Hearings, supra note 43, at 1–15.

46 Id. at 15–17. The letter was also signed by Professor Rostow’s Yale Law School colleagues, Joseph W. Bishop, Robert H. Bork, Leon Lipson, Myres S. McDougal, and William M. Reisman.

47 Id. at 13; see also 2 SALT II Hearings, supra note 43, at 393–94.

48 Professor Rostow engaged in the following colloquy with Senator Joseph Biden:

Senator BIDEN. . . . If the reservation is adopted by the U.S. Senate, and the Soviets go forward with the treaty accepting our stated interpretation—

Mr. ROSTOW. That is the same drama we had in 1972. That is exactly the problem of the unilateral interpretations in 1972, which were sold to you and the Senate as grounds for abrogating the treaty. The Soviets paid no attention to our unilateral interpretations, and we did nothing about it when they were violated.

Senator BIDEN. I am told by counsel that a reservation becomes a full part of the treaty. Assume that counsel is right that it does, would you then have a problem?

… .

Mr. ROSTOW. I made a list of other problems on which we think amendments or reservations are necessary and I certainly should prefer amendments. I am happy to know that your counsel thinks that a reservation becomes part of the treaty, and I will be glad to talk with him about it afterward.

2 SALT II Hearings, supra note 43, at 393–94.

49 4 id. at 14.

50 See infra note 51.

51 As noted above, the label used by the Senate is legally irrelevant. 14 M. Whiteman, supra note 7, at 140. Thus, a Senate amendment to its resolution of ratification providing that a given article of the treaty is without force and effect would be every bit as effective as an actual “amendment to the text” of that treaty striking the article in question.

52 The use of the terms “amendment” and “reservation” is thus somewhat confusing. As pointed out above, the Senate cannot itself amend a treaty. See supra text at note 50. Nor can it really enter a reservation; rather, it can impose, as a condition for its advice and consent, the requirement that the President enter a reservation. Draft Restatement, supra note 7, §305, Reporters’ Note 3. In either event, the President must, under international law, return to the other signatory to ask consent to a new treaty. See supra notes 39–41 and accompanying text; see also 1 Oppenheim, L., International Law 914 (Lauterpacht, H. 8th ed. 1955)Google Scholar (calling a reservation “the refusal of an offer and the making of a fresh offer”); Parry, , The Law of Treaties, in Manual of Public International Law 175, 194 (Sørensen, M. ed. 1968)Google Scholar (stating flatly that “[a] reservation constitutes a proposal of an amendment of the treaty text”).

The Vienna Convention on the Law of Treaties uses the term “reservation” to encompass both types of Senate conditions, providing in Article 2(1)(d) that “ ‘reservation’ means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.” Vienna Convention on the Law of Treaties, May 23, 1969, UN Doc. A/CONF.39/27, reprinted in 63 AJIL 875 (1969), 8 ILM 679 (1969) (emphasis added) [hereinafter cited as Vienna Convention].

53 To cite one example, the Senate Foreign Relations Committee recommended to the Senate that changes to the Panama Canal Treaties other than those recommended by the committee itself not take the form of amendments. S. Exec. Rep. No. 12, supra note 16, at 13.

54 Brazil, , Some Reflections on the Vienna Convention on the Law of Treaties, 6 Fed. L. Rev. 223 (1975)Google Scholar; Comment, , Reservations to Multilateral Treaties: How International Doctrine Reflects World Vision, 23 Harv. Int’l L.J. 71 (1982)Google Scholar; see generally the Vienna Convention, supra note 52. While section II of the Vienna Convention is entitled simply “Reservations”—a shortening of the title “Reservations to Multilateral Treaties” used in an earlier draft—the President of the Vienna Conference, Professor Ago, said that the change should be understood as reflecting the fact that all reservations are, by definition, to multilateral treaties, since, strictly speaking, a so–called reservation to a bilateral treaty constitutes a proposal for a new treaty and not a true reservation at all. Brazil, supra, at 230–31.

55 See, e.g., Parry, supra note 52, at 194.

56 See S. Exec. Rep. No. 14, 96th Cong., 1st Sess. 33 (1979); Draft Restatement, supra note 7, §323, Comment b; 14 M. Whiteman, supra note 7, at 139. See generally id. at 138. See also discussion supra note 17 and accompanying text.

57 Treaty concerning the Permanent Neutrality and Operation of the Panama Canal, Sept. 7, 1977, United States-Panama, TIAS No. 10,029; Treaty on the Panama Canal, Sept. 7, 1977, United States-Panama, TIAS No. 10,030.

58 S. Exec. Doc. Y, 96th Cong., 1st Sess. (1979).

59 See 124 CONG. REC. 7187 (1978).

60 Senate Additions to the Panama Canal Treaties, Dep’t St. Bull., No. 2014, May 1978, at 52, 53.

61 S. Exec Rep. No. 14, supra note 56, at 72–78.

62 Ibid. The committee’s chairman, Senator Frank Church, and ranking minority member, Senator Jacob Javits, previously had received assurances in an exchange of letters with Secretary of State Cyrus Vance that the President would respect the Senate’s wishes on this matter, as expressed in the resolution. Id. at 31–32.

63 Id. at 35.

64 Ibid.

65 Interim Agreement on the Limitation of Strategic Offensive Arms, May 26, 1972, United States-Soviet Union, 23 UST 3462, TIAS No. 7504.

66 Statement by Secretary Vance, September 23, 77 Dep’t St. Bull. 642 (1977).

67 1 Foreign Relations Law, supra note 19, at 34.

68 Garner, , The International Binding Force of Unilateral Oral Declarations, 27 AJIL 493, 497 (1933)Google Scholar (quoting the League of Nations Commission of Inquiry).

69 Legal Status of Eastern Greenland (Den. v. Nor.), 1933 PCIJ, ser. A/B, No. 53.

70 Nuclear Tests (Austl. v. Fr.), 1974 ICJ Rep. 253; Nuclear Tests (N.Z. v. Fr.), 1974 ICJ Rep. 457 (Judgments of Dec. 20).

71 Id. at 474–75. Compare Franck, , Word Made Law: The Decision of the ICJ in the Nuclear Test Cases, 69 AJIL 612 (1975)CrossRefGoogle Scholar (viewing the cases as legitimately extending a principle developed in an earlier line of cases and as providing a useful new vehicle for international commitments), with Rubin, A., The International Legal Effects of Unilateral Declarations, 71 id. at 1 (1977)Google Scholar (criticizing the cases as contrary to existing law and as likely to inhibit world leaders in communicating their intentions).

72 Nuclear Tests (N.Z. v. Fr.), 1974 ICJ Rep. at 472.

73 Ibid.

74 See supra notes 66–67 and accompanying text.

75 In contract law, an objective standard is virtually always used to determine intent. Judge Learned Hand said that the law will not depart from the objective measure of intent even “if it were proved by twenty bishops” that a party’s intent was different from that suggested by the objective standard. Hotchkiss v. National City Bank, 200 F.Supp. 287, 293 (S.D.N.Y. 1911). The law of torts deems a person to have intended the effects a reasonably prudent person would have foreseen as inevitable from his actions. Thus, a bicyclist who runs down a pedestrian on a wide, nearly empty sidewalk is liable for the intentional tort of battery, despite his insistence that the collision was an accident. Mercer v. Corbin, 117 Ind. 450, 20 N.E. 132 (1889). Even criminal law, which usually insists on proof of intent, deems a killing to have been in “a heat of passion” only if an ordinary person would have been provoked to homicide by the circumstances. The leading English case is Bedder v. Director of Public Prosecutions, [1954] 2 All E.R. 801 (H.L.), in which the Court refused to consider the special susceptibility of an impotent man.

76 See United States v. Paramount Pictures, Inc., 334 U.S. 131 (1948); Interstate Circuit, Inc. v. United States, 306 U.S. 208 (1939).

77 Professor Phillip Kurland has protested against “the executive usurpation of Congressional authority in working out secret—or at least unapproved—agreements with foreign countries,” and questioned why it is that “for some reason or other we are always reminded’ that because it is a Constitution we are expounding we need not be concerned with what it says.” Kurland, , The Impotence of Reticence, 1968 Duke L.J. 619, 626 Google Scholar.

Kurland feared that the “disease” afflicting the separation of powers doctrine “appeared to be terminal.” Id. at 261. Since 1968, however, despite much talk in Congress, nothing substantial has been done. See Treaties and Executive Agreements, 71 ASIL PROC. 235 (1977). For the principal congressional proposals, see H.R. 4438, 94th Cong., 1st Sess. (1975) (Morgan-Zablocki); Congressional Review of International Agreements: Hearings on H.R. 4438 Before the Subcomm. on International Security and Scientific Affairs of the House Comm. on International Relations, 94th Cong., 2d Sess. (1976); S. Res. 24, 95th Cong., 1st Sess. (1977) (Clark Treaty Powers Resolution); Treaty Powers Resolution: Hearings Before the Senate Comm. on Foreign Relations, 94th Cong., 2d. Sess. (1976) (hearings on earlier version of Clark Resolution); Treaty Termination: Hearings on S. Res. 15 Before the Senate Comm. on Foreign Relations, 96th Cong., 1st Sess. (1979). During this period, Congress did pass the Case Act, 1 U.S.C. §1126 (1976), requiring the Executive to transmit all executive agreements to the Senate Foreign Relations Committee. Had the joint Soviet–American statements on SALT I constituted an international agreement, it would have been required, of course, that they be transmitted under the provisions of the Case Act.

78 1974 ICJ Rep. 253; 1974 ICJ Rep. 457. See also the opinions of Senators Dick Clark and George McGovern that the United States had not entered into an agreement with the Soviet Government by virtue of the parallel unilateral policy declarations by the two Governments (text at notes 66–67 supra):

The arguments are made that under American antitrust law an agreement would be found to exist, as it would under American contract law. This may be, but we would point out that international law, perhaps shortsightedly, has not adopted the test applied by our antitrust statutes, and that no court in this country has ever found a contract where no party intended one to exist and where all parties ab initio expressly refused to be bound.

S. Rep. No. 499, 95th Cong., 1st Sess. 13–14 (1977).

79 1974 ICJ Rep. at 267 (emphasis added). The instructions of the U.S. Department of State to U.S. diplomatic personnel on the criteria to be used in determining what constitutes an international agreement provide in part as follows: “The central requirement is that the parties intend their undertaking to be of legal, and not merely political or personal, effect. Documents intended to have political or moral weight, but not intended to be legally binding, are not international agreements.” Airgram from the Department of State to all U.S. diplomatic posts, Mar. 9, 1976 (State Dep’t reference No. A-1394), reprinted in 1 Foreign Relations Law, supra note 19, at 15.

80 See letter from Herbert J. Hansell, State Department Legal Adviser, to John J. Sparkman, Chairman, Senate Foreign Relations Committee, Sept. 28, 1977, reprinted in S. Rep. NO. 499, supra note 78, at 9–10 (quoting Paul Warnke, id. at 9 n.2).

81 Draft Restatement, supra note 7, §301, Comment e.

82 Ibid.

83 Id., §301, Reporters’ Note 2.

84 See supra note 77.

85 Compare Draft Restatement, supra note 7, §308 (describing such presidential actions as international agreements) with id., §324 (stating that all international agreements are binding on the parties).

86 Professor Schachter has commented that nonbinding agreements do remove the matters dealt with from domestic jurisdiction and give rise to a right of the parties to raise questions of noncompliance. See Schachter, , The Twilight Existence of Nonbinding International Agreements, 71 AJIL 296 (1977)CrossRefGoogle Scholar.

87 Final Act of the Conference on Security and Cooperation in Europe, Aug. 1, 1975, 73 Dep’t ST. Bull. 323 (1975). See generally Bilder, R., Managing the Risks of International Agreement (1981)Google Scholar.

88 The Chairman of the Senate Foreign Relations Committee expressed concern, for example, about the apparent breadth of international commitments entered into at the economic summit meeting in Bonn on July 17, 1978. The Assistant Secretary of State for Congressional Relations responded in part as follows: “While the declaration issued in Bonn is an important political commitment, it is not an international agreement within the meaning of the United States law or international law since the parties did not evidence an intent to be legally bound.” See 73 AJIL 130(1979).

89 1974 ICJ Rep. 253; 1974 ICJ Rep. 457.

90 See Rubin, supra note 71. But see Franck, supra note 71.

91 An example of the exactness for which diplomats should strive is the statement of Soviet President Leonid Brezhnev delivered by Soviet Foreign Minister Andrei Gromyko before the United Nations General Assembly on June 15, 1982, concerning Soviet policy with respect to the first use of nuclear weapons. President Brezhnev said, “The Soviet Union assumes an obligation not to be the first to use nuclear weapons. This obligation shall become effective immediately, on the moment it is made public from the rostrum of the General Assembly.” Nossiter, , Soviet Forswears Using A-Arms First, N.Y. Times, June 16, 1982, at A1, col. 3Google Scholar.

An example of the ambiguity that diplomats must avoid is the statement of Foreign Minister Gromyko to the Supreme Soviet on July 6, 1978. In the process of awarding credit to the Soviet Union “for a whole number” of arms control treaties, Gromyko made reference to the Interim Agreement, “which in 1977 was extended and continues to be in force in conformity with the existing arrangement for the period of talks now in progress on concluding a new agreement.” Gromyko, , On the Draft Law to Govern the Procedure for Conclusion, Execution and Denunciation of International Treaties of the USSR, Int’l Aff. (Moscow), September 1978, at 6 Google Scholar. Did the Soviet Foreign Minister intend to indicate that the Soviets continue to regard themselves as legally obligated by the terms of the Interim Agreement? Did the Soviets misunderstand U.S. intentions at the time the Agreement expired? Or is this merely an inaccurate “shorthand” method of summarizing a more complex legal situation? Soviet acceptance of an asymmetrical legal structure concerning the Interim Agreement would be surprising, but if Gromyko’s words are taken literally, a binding intent might reasonably be inferred from them. Unfortunately, Soviet leaders have not been alone in the imprecision of their legal references. See supra text accompanying note 53.

92 Draft Restatement, supra note 7, §308. The statement seems a truism: it is self-evident that the President can act within the scope of his independent powers. The debate has centered on the scope of those powers—where his end and those of Congress or the Senate begin. Id., §308, Reporters’ Note 1; see supra note 77. In the case of arms control declarations, the ultimate issue may be an impoundment question: whether the President, as Commander–in–Chief, can refuse to spend certain funds Congress has directed him to spend. See generally Tribe, L., American Constitutional Law 193–98 (1978)Google Scholar.

93 S. Exec. Doc. Y, supra note 58.

94 S. Exec. Rep. No. 14, supra note 56, at 26.

95 Rule XXXVII, Standing Rules of the United States Senate, reprinted in Senate Comm. on Rules and Administration, 95th Cong., 1ST SESS., Standing Rules of the United States Senate and Provisions of the Legislative Reorganization Acts of 1946 and 1970 and The Budget Control Act Relating to the Operation of the Senate 65– 67 (Comm. Print 1977).

96 Lindsey, , Reagan Urges Ban on Arms Pact Unless Soviet Withdraws Troops, N.Y. Times, Jan, 26, 1980, at 10, col. 5Google Scholar.

97 Memorial Day, 1982, 18 Weekly Comp. Pres. Doc. 730 (May 31, 1982).

98 Statement by Vance, supra note 66, at 642. (The Secretary of State made the actual statement.)

99 Interim Agreement on the Limitation of Strategic Offensive Arms, supra note 65.

100 According to Justice Jackson’s analysis of presidential powers in the Steel Seizure Case, the President’s power is most restricted where he acts contrary to the will of Congress. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 637 (Jackson, J., concurring). Where Congress—or the body charged with approving treaties, the Senate—has approved a treaty to be effective a given length of time and no longer, it might be presumed that it is contrary to the Senate’s expressed will that the treaty remain in effect past the expiration date, unless the termination date is to be regarded as mere surplusage.

101 Vienna Convention, supra note 52, Art. 18.

102 Ibid.

103 U.S. Const, art. 2, §2, cl. 2.

104 Vienna Convention, supra note 52.

105 3 Panama Canal Treaties: Hearings Before the Senate Comm. on Foreign Relations, 95th Cong., 1st Sess. 520 (1977) (statement of Professor Dean Rusk).

106 Professor Rusk would appear to be in the distinct minority in applying this view to the treaty as a whole rather than to certain sections of it. Professor Holloway quotes with approval the statement of Sir Hersch Lauterpacht, who as special rapporteur played a major part in preparing the Convention, that the International Law Commission “is not limited to registering uniform practice. If that were its purpose, its work would be partly nominal and partly redundant.” Holloway, K., Modern Trends in Treaty Law 58 (1967)Google Scholar. See also Goldie, , The International Law Commission and Progressive Development of International Law, 28 Fed. B.J. 25, 26 (1968)Google Scholar; Jacobs, , Innovation and Continuity in the Law of Treaties, 33 Mod. L. Rev. 502, 509 (1970)Google Scholar; Sinclair, , Vienna Conference on the Law of Treaties, 19 Int’l & Comp. L.Q. 47, 49–50 (1970)Google Scholar.

107 Henkin, L., Pugh, R., Schachter, O., & Smit, H., International Law 604 (1980)Google Scholar.

108 The authors of the first tentative draft convention on the law of treaties (a group of American scholars under the auspices of Harvard Law School) regarded the obligation not to frustrate the terms of treaties pending ratification as one merely of “good faith” and not as legally binding. Draft Convention on the Law of Treaties, 29 AJIL, Supp. 657, 787 (1935).

Professor Brierly, the International Law Commission’s first special rapporteur on the law of treaties, agreed with the position of the Harvard Draft Law of Treaties, [1951] 2 Y.B. Int’l L. Comm’n 70, 73, UN Doc. A/CN.4/SER.A/1951/Add.1. Sir Hersch Lauterpacht, Brierly’s successor, disagreed, stressing that the obligation is a legal one, and strongly implying that “good faith” is itself a legally binding obligation in international law. Law of Treaties, [1953] id. at 90, 110–11, UN Doc. A/CN.4/SER.A/1953/Add.1. Sir Hersch’s position was supported by the next two special rapporteurs, Sir Gerald Fitzmaurice and Sir Humphrey Waldock. Law of Treaties, [1956] 2 id. at 104, 113, UN Doc. A/CN.4/SER.A/1956/Add.1; Law of Treaties, [1962] 2 id. at 27, 46, UN Doc. A/CN.4/SER.A/1962/Add.1.

In 1966, the ILC reported the draft of the Convention on the Law of Treaties, incorporating the position that signatories of treaties have an obligation not to take actions, pending ratification, that would frustrate the purposes of the treaty. Reports of the Commission to the General Assembly, [1966] 2 id. at 169, 202, UN Doc. A/6309/Rev.1 [hereinafter cited as Reports]. In so doing, the Commission stated that the proposition was “generally accepted.” Ibid. The Commission cited the Case Concerning Certain German Interests in Polish Upper Silesia, 1926 PCIJ, ser. A, No. 7, at 30, as authority. Reports, supra, at 202. At the same time, the Commission drafted a provision that would have imposed a similar obligation not to frustrate a treaty’s terms on states that simply entered into negotiations for a treaty, without signing. Ibid. The latter provision, as governments commenting on the draft pointed out, would have represented an innovation in international law. See id. at 279, 291, 315, 323, 338, 344. The Vienna Conference’s Committee of the Whole ultimately deleted the provision; accordingly, it did not become a part of the Convention. Rosenne, S., The Vienna Convention on The Law of Treaties 172–73 (1970)Google Scholar.

It is important to note that the governmental criticisms were directed at the application of the rule to negotiating parties—a position not incorporated in the Vienna Convention as adopted— and not at its application to signatories. The Vienna Conference, of course, retained the obligation of states not to frustrate, pending ratification, the purposes of treaties they have signed. Delegates to the conference seemed generally satisfied that this principle codified existing international law. For the comments of the delegates of Switzerland, India, and the Ukrainian Soviet Socialist Republic, respectively, see United Nations Conference on the Law of Treaties, Official Records of the First Session 97, UN Doc. A/CONF.39/11 (comments of M. Bindschendler); id. at 98 (comments of Mr. Jagota); id. at 100 (comments of Mr. Lukashuk). The application to negotiating states had also given rise to considerable controversy during the deliberations of the ILC. Summary Records of the 788th Meeting, [1965] 1 Y.B. Int’l L. Comm’n 87, 88–94, UN Doc. A/CN.4/SER.A/1965. However, the members of the Commission were generally satisfied with the remainder of the rule although certain members, notably Mssrs. Tabibi and Yasseen, argued that it did represent progressive development. Ibid.

For general background on the Vienna Convention, and the work on Article 18 in particular, see S. Rosenne, supra (providing a guide to the “legislative history” of the Convention); Sinclair, I., The Vienna Convention on the Law of Treaties (1973)Google Scholar (general overview by the Senior Legal Advisor to Her Britannic Majesty’s Foreign and Commonwealth Office); Rogoff, , The International Legal Obligations of Signatories to an Unratified Treaty, 32 Me. L. Rev. 263 (1980)Google Scholar (discussing evolution of Article 18, the legal rationales therefor, and its application to certain then pending treaties).

109 See 2 Hyde, C., International Law 1432–33 n.13 (2d. rev. ed. 1945)Google Scholar; Brownlie, I., Principles of Public International Law 489 (1966)Google Scholar; I. Sinclair, supra note 108, at 39; Nisot, , L’Article 18 de la Convention de Vienne sur le droit des traités, 6 Rev. Belge Droit Int’l 498 (1970–71)Google Scholar; O’Connell, D., International Law 223 (1970)Google Scholar; cf Mervvn Jones, J., Ratification and Full Powers 81 (1949)Google Scholar (submitting that the rule may be somewhat overstated); Morvay, , The Obligation of a State Not to Frustrate the Object of a Treaty Prior to its Entry into Force, 27 Zeitschrift für Auslandisches Öffentliches Recht Und Völkerrecht 451, 458 (1967)Google Scholar (stating that the rule formulated by the Vienna Convention either goes beyond customary law or states it in the broadest possible way).

110 See Draft Restatement, supra note 7, §314; 1 Anzilotti, D., Cours de droit International 372–73 (Gidel, G. trans. 1929)Google Scholar; Crandall, S., Treaties, Their Making and Enforcement 343–44 (2d ed. 1916)Google Scholar; T. Elias, supra note 39, at 26; 3 Fauchille, P., Traité de droit International Public 319–20 (1926)Google Scholar; 1 Hoijer, O., Les Traités Internatio Naux 136 (1928)Google Scholar; K. Holloway, supra note 106, at 28; 1 L. Oppenheim, supra note 52, at 909; Cavagliere, , Règies générales du droit de la paix, Recueil des Cours 311, 520 (19291)Google Scholar; Hassan, , Good Faith in Treaty Formation, 21 Va. J. Int’l L. 443, 452 (1981)Google Scholar; Rogoff, supra note 108, at 271–72; cf. McNair, A., Law of Treaties 199 (1961)Google Scholar (suggesting that the signing of a treaty may limit freedom of action pending the entry into force of the treaty, but expressing reservations as to the conclusiveness of evidence for the proposition).

111 “That an obligation of good faith to refrain from acts calculated to frustrate the object of the treaty attaches to a State which has signed a treaty subject to ratification appears to be generally accepted.” Reports, supra note 108, at 202.

112 Case Concerning Certain German Interests in Polish Upper Silesia, 1926 PCIJ, ser. A, No. 7, at 30; Megalidis v. Etat turc, 8 Trib. Arb. Mixtes 386, 395 (1929) (holding that “il est de principe que déjà avec la signature d’un Traité et avant sa mise en vigueur, il existe pour les parties contractantes une obligation de ne rien faire qui puisse nuire au Traité en diminuant la portée de ses clauses”).

113 U.S. Secretary of State John Hay, expressing his dissatisfaction over Colombian failure to act in accordance with the U.S.-Colombia Panama Canal Treaty, which Colombia had signed but not ratified, asserted that in signing a treaty states “bind themselves, pending its ratification, . . . to do nothing in contravention of its terms.” 2 C. Hyde, supra note 109, at 1432–33 n.13.

114 In 1857, Great Britain’s Law Officers advised the Foreign Office that “[n]o act can be properly done by Her Majesty whilst the ratification of the Treaty is under consideration, which may at all affect any of the stipulations of the Treaty.” Report by J. D. Harding, Attorney General, and R. Bethell, Queen’s Advocate, to the Secretary of State for Foreign Affairs, May 15, 1857 (original on file in the Public Record Office in London, Law Officers’ Reports Section, F.O. 83 2242), reprinted in A. McNair, supra note 110, at 200.

115 The Final Act of Berlin of Feb. 26, 1885—which provided that “en attendant la ratification, les Puissances signatoires de cet Acte général s’obligent à n’adopter aucune mesure qui serait contraire aux dispositions dudit Acte”—was, according to Sir Hersch Lauterpacht, “no more than declaratory of an existing principle.” Lauterpacht, , Law of Treaties, [1953] 2 Y.B. Int’l L. Comm’n 90, 110, UN Doc. A/CN.4/SER.A/1953/Add.1Google Scholar.

Professor Holloway states that the Latin American states follow the same principle. See K. Holloway, supra note 106, at 46 n.28.

Prior to the time of the French and American Revolutions, ambassadors were regarded as personal agents of their sovereigns, acting with full power to bind their royal clients—who were not free to disavow commitments their ambassadors made in pursuance of their delegated authority. The concept that a state might refuse to ratify a treaty signed on its behalf evolved gradually during the 19th century. See generally J. Mervyn Jones, supra note 109, at 12, 74–78. Given the existence of authority as early as 1857 for the rule eventually embodied in Article 18, and the lack of early authority for a contrary rule, it seems that the first commentators and practitioners to address the question reached the conclusion of the Vienna Convention. See supra notes 110–114.

116 Marshall v. Gordon, 243 U.S. 521, 537 (1917).

117 But see United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). Curtiss-Wright suggests in dictum that the United States Government, in its conduct of foreign policy, possesses not only those powers given, explicitly or implicitly, by the Constitution, but additional, extra-constitutional powers supposedly inherent in the notion of sovereignty. Id. at 318. The author of the opinion, Justice Sutherland, rested his argument in part on the idea that the authority of the Crown to bind British subjects in the 13 colonies as to external affairs passed directly, upon independence, not to the governments of the states, but to the Continental Congress. Id. at 316–17. Sutherland’s historical analysis has been sharply criticized. Levitan, , The Foreign Relations Power: An Analysis of Mr. Justice Sutherland’s Theory, 55 Yale L.J. 467 (1946)CrossRefGoogle Scholar; Lofgren, , United States v. Curtiss–Wright Export Corp.: An Historical Reassessment, 83 id. at 1 (1973)Google Scholar.

118 See text accompanying notes 101–102.

119 Orders and unanimous consent requests also have been used for this purpose. The Senate has returned treaties to the Executive at the request of the Executive, but also on its own initiative. Given the President’s authority to decline to ratify a treaty approved by the Senate, it might nonetheless be argued that he thus possesses, a fortiori, the lesser authority to forestall Senate approval by withdrawing a treaty. No instance has been identified in which an executive request for the return of a treaty has been rejected, however, or in which the Executive “withdrew” a treaty from the Senate without its consent. Memorandum from Congressional Research Service, Library of Congress, to Senate Foreign Relations Committee, Mar. 23, 1977, reprinted in 1 Foreign Relations Law, supra note 19, at 60–64; Senate Practice with Respect to Withdrawal of Treaties, Staff Memorandum, Senate Foreign Relations Committee, June 18, 1963 (on file with author); accord Riddick, F., Senate Procedure: Precedents and Practices, U.S. Senate 829 (1973)Google Scholar; 14 M. Whiteman, supra note 7, at 61–62. The question seems primarily political rather than legal; if a President indicates an intent not to ratify, the Senate will seldom, if ever, go through the legally feckless act of according its consent.

120 Under such circumstances, the President might claim that he was following the express will of Congress. See supra note 36. The argument might be made that to observe the terms of a treaty until the defeat of a “resolution of return” would effectively change the fraction of the Senate required for approval from two-thirds to one-half. The answer, of course, is that international law as embodied in Article 18 of the Vienna Convention does not place the treaty in force; it simply proscribes action that would defeat the object and purpose of the treaty. The difference is critical. Thus, for example, if President Reagan were to sign a strategic arms reduction treaty but face a reluctant Senate, Article 18 would not give him authority to scrap prohibited missiles pending ratification, as their temporarily continued existence would not defeat the purpose of the treaty. “Failing to dismantle a weapon scheduled to be dismantled under the treaty,” write the reporters of the draft Restatement, “might not defeat its object since the dismantling could be effected later.” Draft Restatement, supra note 7, §314, Reporters’ Note. The test, they suggest, is whether the consequences of the action in question “might be irreversible.” Ibid. Thus, “[t]esting a new weapon in contravention of a clause prohibiting such a test would presumably violate the purpose of the agreement.” Ibid.

121 See supra note 102 and accompanying text.

122 Nuclear Arms Reduction Proposals: Hearings Before the Senate Comm. on Foreign Relations, 97th Cong., 2d Sess. 121 (1982) (statement of Alexander Haig, Secretary of State).

123 See supra note 97.

124 Statement by Vance, supra note 66, at 642.

125 1974 ICJ Rep. 253; 1974 ICJ Rep. 457.

126 Perhaps even more troubling, in this context, is the remark of President Carter with regard to SALT II: “I consider it binding on our two countries.” The President’s News Conference of March 14, 1980, 16 Weekly Comp. Pres. Doc. 484, 488 (Mar. 14, 1980) (emphasis added). President Carter, of course, did not say whether he regarded the obligation as legally or morally binding; still, his statement was arguably no more equivocal than those that were held to give rise to legal obligations on the part of France in the Nuclear Tests cases and of Norway in Eastern Greenland. See supra notes 68–79 and accompanying text.

127 S.J. Res. 212, cl. 3, 97th Cong., 2d Sess. (1982), reprinted in Subcomm. on Separation of Powers of Senate Comm. on the Judiciary, 97th Cong., 2d Sess., Joint Resolution With Respect to Nuclear Arms Reductions: Report on S.J. Res. 212 at 7 (Comm. Print 1982) [hereinafter cited as Joint Resolution].

128 This analysis assumes that both SALT I and SALT II are “existing agreements” within the meaning of the President’s declaration, a proposition disputed by Senator Jesse Helms. See S. Rep. No. 493, 97th Cong., 2d Sess. 30 (1982) (additional views of Mr. Helms).

129 See Treaties and Executive Agreements, supra note 77, and text of note 77.

130 See generally supra notes 36 and 100 (discussing the power of Congress to limit the President’s foreign policy power in light of the concurring opinion of Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)).

131 Joint Resolution, supra note 127, at 7. The subcommittee quoted from the 1816 Senate Foreign Relations Committee report noted by the Supreme Court in Curtiss-Wright, 299 U.S. at 319:

The President is the constitutional representative of the United States with regard to foreign nations. He manages our concerns with foreign nations and must necessarily be most competent to determine when, how, and upon what subjects negotiation may be urged with the greatest prospect of success. . . . 8 U.S. Senate, Reports, Committee on Foreign Relations, vol. 8, p. 24.

Joint Resolution, supra note 127, at 6.

132 See Mr. Justice Brandeis’s explanation of the principle underlying the separation of powers doctrine:

The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was, not to avoid friction, but, by means of the inevitable friction incidental to the distribution of the governmental powers among three departments, to save the people from autocracy.

Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting).