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The President's Power to Withdraw the United States from International Agreements at Present and in the Future

  • Jean Galbraith (a1)
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An uneasy equilibrium exists with respect to how the United States exits international agreements. In general, exit is easy as a matter of legal doctrine but, for important agreements, difficult as a matter of political practice. While presidents can withdraw the United States from most major international agreements, they have done so only rarely—and never yet with deep costs to the stability of our world order.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
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1 I use the phrase “international agreements” to refer to agreements concluded between nations that are binding under international law, reserving the term “treaties” for only those international agreements for which the advice and consent of two-thirds of the Senate is obtained prior to ratification by the United States. I do not discuss exit as it relates to nonbinding “soft law” commitments. At times I use the term “President” as a shorthand for the executive branch more generally.

3 Vicki Needham, Trump Says He Will Renegotiate or Withdraw from NAFTA, The Hill (June 28, 2016); Nahal Toosi, Obama Reassures NATO Leader After Trump Rants, Politico (Apr. 4, 2016).

4 See Laurence R. Helfer, Exiting Treaties, 91 Va. L. Rev. 1579, 1582 (2005) (noting that exit clauses are “pervasive”); Barbara Koremenos, The Continent of International Law: Explaining Agreement Design 143 (2016) (finding withdrawal clauses in 70% of the sample of treaties in her study).

5 Vienna Convention on the Law of Treaties art. 56, May 23, 1969, 1155 UNTS 331, 345 (further requiring one year of notice prior to withdrawal).

6 Id. arts. 54, 59–62, 64 (discussing the parameters under which a treaty can be terminated due to the consent of the parties, the development of a later treaty on the same subject, a material breach, impossibility, a fundamental change of circumstances, or the emergence of a new peremptory norm).

7 See Helfer, supra note 4, at 1642 note 172 (identifying several human rights treaties for which withdrawal as a matter of international law is likely precluded).

8 Curtis A. Bradley, Treaty Termination and Historical Gloss, 92 Tex. L. Rev. 773, 800 (2014).

9 Id. at 801–16. For a discussion of how the legality of withdrawal under international law was used rhetorically to justify this constitutional development, see Jean Galbraith, Treaty Termination as Foreign Affairs Exceptionalism, 92 Tex. L. Rev. See Also 121 (2014).

10 Curtis A. Bradley & Laurence R. Helfer, Treaty Exit in the United States: Insights from the United Kingdom or South Africa, 111 AJIL Unbound 428 (2017).

11 Goldwater v. Carter, 444 U.S. 996 (1979) (resulting in no controlling opinion for the Court, as four justices concluded that the case presented a political question and Justice Powell concluded that the case was not ripe for review). The Federal District Court had ruled that President Carter lacked the constitutional power to initiate withdrawal, and the Federal Appellate Court had ruled that President Carter had the requisite constitutional power. See Bradley, supra note 8, at 812–14 (describing these opinions).

12 Bradley, supra note 8, at 814–16.

13 Restatement (Fourth) of Foreign Relations Law: Treaties § 113(1) (Am. Law Inst., Tentative Draft No. 2, 2017).

14 On occasion, a statute will specifically address this issue. E.g., 18 U.S.C. § 3181(a) (2012) (providing that the “provisions of this chapter relating to the surrender of persons who have committed crimes in foreign countries shall continue in force only during the existence of any treaty of extradition with such foreign government”).

15 See Stephen P. Mulligan, Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement 6–7 (Cong. Research Serv., Feb. 9, 2017) (making this observation with respect to sole executive agreements). Congress authorizes ex ante congressional-executive agreements prior to their negotiation and thereby delegates substantial discretion to the executive branch. At least in the absence of clear legislative language otherwise, it seems likely to conclude that this discretion permits or at least does not forbid later withdrawal by the executive branch.

16 For a recent argument that trade agreements should require congressional consent to termination, see Joel P. Trachtman, Terminating Trade Agreements: The Presidential Dormant Commerce Clause Versus an Historical Gloss Half Empty (Working Paper, Oct. 16, 2017).

17 E.g., United States-Korea Free Trade Agreement Implementation Act, Pub. L. No. 112-41, § 107 (c), 125 Stat. 428, 432 (2011) (“On the date on which the Agreement terminates, this Act … shall cease to have effect”).

18 Clinton v. City of New York, 524 U.S. 417 (1998).

19 In Bond v. United States, the Court signaled that the typical canons of statutory construction should apply to treaty-implementing legislation. Bond v. United States, 134 S. Ct. 2077, 2088 (2014).

20 Countering America's Adversaries through Sanctions Act, Pub. L. No. 115-44 § 292(b) (2017).

21 Cf. Kristen Eichensehr, Treaty Termination and the Separation of Powers, 53 Va. J. Int'l L. 247 (2013) (arguing that the Senate cannot constitutionally mandate legislative approval for withdrawal but could build in a for-cause requirement for withdrawal).

23 See Helfer, supra note 4, at 1598 (noting that some agreements, especially in the arms control context, permit nations to withdraw only for certain specified reasons).

24 Rachel Brewster, Unpacking the State's Reputation, 50 Harv. Int'l L.J. 231, 256 (2008).

25 Open Letter to the International Community and Parties to the Paris Agreement from U.S. State, Local, and Business Leaders, available at WeAreStillin.com.

I thank other participants in this symposium, especially Laurence Helfer, for their comments.

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AJIL Unbound
  • ISSN: -
  • EISSN: 2398-7723
  • URL: /core/journals/american-journal-of-international-law
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