T7 print ; electronic access HeinOnline. These guides may be used for educational purposes, as long as proper credit is given. These guides may not be sold.
Any comments, suggestions, or requests to republish or adapt a guide should be submitted using the Research Guides Comments form. Moreover, whereas an enacted federal statute can only be rescinded by a subsequent act of Congress, some argue that, just as the President has some unilateral authority to remove executive officers who were appointed with senatorial consent, the President may unilaterally terminate treaties made with the Senate's advice and consent.
The United States terminated a treaty under the Constitution for the first time in On the eve of possible hostilities with France, Congress passed, and President Adams signed, legislation stating that four U. During the 19th century, government practice treated the power to terminate treaties as shared between the legislative and executive branches.
On rare occasions, the Senate alone passed a resolution authorizing the President to terminate a treaty. At the turn of the 20th century, government practice began to change, and a new form of treaty termination emerged: unilateral termination by the President without approval by the legislative branch. The president's exercise of treaty termination authority did not generate opposition from the legislative branch in most cases, but there have been occasions in which Members of Congress sought to block unilateral presidential action.
In , a group of Members filed suit in Goldwater v. Carter seeking to prevent President Carter from terminating a mutual defense treaty with the government of Taiwan as part of the United States' recognition of the government of mainland China.
Customary international law is defined as resulting from "a general and consistent practice of States followed by them from a sense of legal obligation. First, a nation that is a persistent objector to a particular requirement of customary international law is exempt from it.
In examining nations' behavior to determine whether opinio juris is present, courts might look to a variety of sources, including, inter alia, relevant treaties, unanimous or near-unanimous declarations by the United Nations General Assembly concerning international law, and whether noncompliance with an espoused universal rule is treated as a breach of that rule.
Some particularly prevalent rules of customary international law can acquire the status of jus cogens norms—peremptory rules which permit no derogation, such as the international prohibition against slavery or genocide. For much of the history of the United States, courts and U. In a landmark decision, Erie Railroad Co. Tompkins , the Supreme Court rejected the then-longstanding notion that there was a "transcendental body of law" known as the general common law, which federal courts are permitted to identify and describe in the absence of a conflicting statute.
Jessup argued that it would be "unsound" and "unwise" to interpret Erie to bar federal courts' application of customary international law. While there is some uncertainty concerning the customary international law's role in domestic law, the debate has largely focused on circumstances in which customary international law does not conflict with an existing federal statute.
When a federal statute does conflict with customary international law, lower courts consistently have concluded that the statute prevails. In The Paquete Habana , the Court explained that customary international law may be incorporated into domestic law, but only to the extent that "there is no treaty, and no controlling executive or legislative act or judicial decision" in conflict.
While it appears that federal statutes will generally prevail over conflicting custom-based international law, customary international law can potentially affect how courts construe domestic law. Under the canon of statutory construction known as the Charming Betsy canon, when two constructions of an ambiguous statute are possible, one of which is consistent with international legal obligations and one of which is not, courts will often construe the statute so as not to violate international law, presuming such a statutory reading is reasonable.
Customary international law plays a direct role in the U. Some statutes expressly reference customary international law, and thereby permit courts to interpret its requirements and contours. Perhaps the clearest example of U. Pena-Irala , the U. Court of Appeals for the Second Circuit relied upon it to award a civil judgment against a former Paraguayan police official who had allegedly tortured the plaintiffs while still in Paraguay.
Beginning with a decision, Sosa v. Alvarez-Machain , the Supreme Court began to place outer limits on the statute's application. Nine years later, in Kiobel v. Royal Dutch Petroleum Co. In some areas, courts have established settled rules. For example, courts clearly have recognized that the Constitution permits the United States to make binding international commitments through both treaties and executive agreements.
Because the legislative branch possesses significant powers to shape and define the United States' international obligations, Congress is likely to continue to play a critical role in dictating the outcome of these debates in the future. Figure A Steps in the Making of a Treaty. Print Steps in the Making of an Executive Agreement. Recorded international law dates back to agreements between Mesopotamian rulers five thousand years ago, but international law as it now commonly understood began with the Roman Empire, whose scholars formulated a jus gentium law of nations they believed universally derivable through reason.
See generally David J. Bederman, International Law in Antiquity Although originally governing nation-to-nation relations, the scope of international law has grown, beginning in the latter half of the 20th century with the emerging fields of human rights law and international criminal law, to regulate the treatment and conduct of individuals in certain circumstances. See, e. GAOR, 3rd Comm.
See also U. State Dept. Jackson, International Conference on Military Trials arguing that crimes against humanity were "implicitly" in violation of international law even before the Nuremberg military trials of Nazi leadership for such offenses following World War II. Hylton, 3 U. Georgia, 2 U. See also infra notes - citing statements by the judicial and executive branch concerning the application of international law into domestic law. Neilson, 27 U. Percheman, 32 7 Pet. The Paquete Habana, U.
See also, e. Immigration and Naturalization Service, 86 F. As used in this report, the term "pact" is a generic term intended to encompass non-binding commitments between nations and legally binding international agreements.
For further detail of various types of international commitments and their relationship with U. Vienna Convention on the Law of Treaties, art. Although the United States has not ratified the Vienna Convention, courts and the executive branch generally regard it as reflecting customary international law on many matters. New York, F. Airlines, Inc.
Federal Exp. Asiana Airlines, F. The term "treaty" is not always interpreted under U. See Weinberger v. Rossi, U. United States, U. See id. For more on variations of the definition of the term "treaty," see supra notes 13 - See Curtis A. Constitution , 48 Harv. Int'l L. See , e. Constitution 2d ed. On an occasion that has been described as the first and last time the President personally visited the Senate chamber to receive the Senate's advice on a treaty, President Washington went to the Senate in August to consult about proposed treaties with the Southern Indians.
See 1 Annals of Cong. But observers reported that he was so frustrated with the experience that he vowed never to appear in person to discuss a treaty again. Harris ed. See Zivotofsky v. Kerry, S. Curtiss-Wright Export Corp. Crandall, Treaties, Their Making and Enforcement 81 2d ed. As a general matter, "[r]eservations change U. Declarations are "statements expressing the Senate's position or opinion on matters relating to issues raised by the treaty rather than to specific provisions.
E "The Senate sometimes uses 'declarations' to express views on matters of policy. Understandings are "interpretive statements that clarify or elaborate provisions but do not alter them. C "The Senate has regularly used 'understandings' to set forth the U.
Provisos concern "issues of U. D discussing the usage of provisos. See also United States v. Stuart, U. If these are agreed to by the President and accepted by the other contracting parties, they become part of the treaty and of the law of the United States.
For example, in giving its advice and consent to the first treaty that was to be ratified by the United States after the adoption of the Constitution—dubbed the Jay Treaty because it was negotiated by the first Chief Supreme Court Justice of the United States, John Jay, who was appointed a special envoy to Great Britain despite his role in the judicial branch—the Senate insisted on suspending an article allowing Great Britain to restrict U.
Senate Exec. Journal, 4th Cong. See Hayden, supra note 24 at Bradley, International Law in the U. Legal System 2d ed. Compare , e. Nat'l Security L. See Haver v. Yaker, 76 U. Alvarez-Machain, U.
Lynch, F. Gonzales, F. Mitchell, F. See Sosa , U. United States, F. Duarte-Acero, F. Perez v. Warden, F. See infra notes 44 - 46 discussijng historical usage of executive agreements and related judicial opinions. The Case-Zablocki Act of , Pub. The act does not define what sort of arrangements constitute "international agreements," though the legislative history suggests that Congress "did not want to be inundated with trivia. Implementing State Department regulations establish criteria for assessing when a compact constitutes an "international agreement" that must be reported under the Case-Zablocki Act.
These regulations provide that "[m]inor or trivial undertakings, even if couched in legal language and form," are not considered to fall under the purview of the act's reporting requirements. Similarly, although federal law generally requires the State Department publish all international agreements to which the United States is a party, an exception is made which affords the Secretary of State discretion to decline to publish some executive agreements when "public interest in such agreements is insufficient to justify their publication.
Ass'n v. Garamendi, U. Regan, U. When the President enters into an executive agreement, what sort of obligation does it impose on the United States? That it may impose international obligations of potentially serious consequences is obvious and that such obligations may linger for long periods of time is equally obvious.
Do treaties and executive agreements have the same domestic effect? A different view seemed to underlie the Supreme Court decision in United States v. Belmont , giving domestic effect to the Litvinov Assignment. A lower court had erred, the Court ruled, in dismissing an action by the United States, as assignee of the Soviet Union, for certain moneys which had once been the property of a Russian metal corporation the assets of which had been appropriated by the Soviet government.
The Court elaborated on these principles five years later in United States v. Pink , another case involving the Litvinov Assignment and recognition of the Soviet Government.
The question presented was whether the United States was entitled to recover the assets of the New York branch of a Russian insurance company. The Court, speaking by Justice Douglas, brushed these arguments aside. Another requires that executive agreements be reported to Congress, but not necessarily the public, within 60 days of entry into force—including secret agreements, which are communicated through a special process—along with an explanation of their legal basis, usually included in an associated cover letter.
Hathaway then went on to describe the results of a survey the three co-authors had conducted of the executive agreements and related cover letters that the executive branch had transmitted to Congress between and , which they had acquired through a Freedom of Information Act request. Other problems were evident in the congressional reporting regime as well, as a substantial number of cover memos suggested that the executive agreements in question were being transmitted late while private databases contained several thousand such agreements that were never transmitted to Congress.
To address these issues, Hathaway argued that Congress could require the executive branch to more broadly publish all international agreements and associated cover letters—with specific descriptions of the legal basis for the executive agreement in question—in order to allow for more public oversight, and perhaps put limits on the use of funds for them or their entry into force until published or transmitted.
Or even absent legislation, relevant congressional committees could promote public transparency by electing to publish the executive agreements and cover letters they receive and by making demands of agencies for more specificity regarding legal authorities within the cover letters they receive. The study group then moved to open discussion on these and related issues. This included questions about how Congress might better structure authorizing legislation for executive agreements, steps Congress may be able to take to signal the need for adequate compliance with publication and reporting requirements with foreign partners, the challenges that relevant congressional committees face both in overseeing the use of executive agreements, and factors that have led to the decline in the use of conventional Article II treaties.
0コメント