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Treaty Exit in the United States: Insights from the United Kingdom or South Africa?

  • Curtis A. Bradley (a1) and Laurence R. Helfer (a2)
Extract

Courts in the United Kingdom and South Africa have recently issued important rulings that have constrained the executive's authority to withdraw from treaties in those countries. This essay considers whether these rulings might offer insights for treaty exit issues in the United States. We first provide an overview of U.S. law and practice regarding the termination of international agreements. We next summarize the U.K. and South African decisions, which required parliamentary approval for pulling out of treaties establishing the European Union and the International Criminal Court (ICC), respectively. Finally, we consider the relevance of these rulings for treaty withdrawals in the United States. We conclude that they are unlikely to offer much guidance, both because of differences in the three countries' constitutions and because the reasoning of the U.K. and South African courts do not engage with the central arguments made in the United States concerning the President's unilateral authority to withdraw from treaties.

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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.
References
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1 See Curtis A. Bradley, Treaty Termination and Historical Gloss, 92 Tex. L. Rev. 773, 788–96, 801–10 (2014).

2 See Goldwater v. Carter, 617 F.2d 697 (D.C. Cir. 1979).

3 Id. at 704.

4 Id. at 705.

5 Id.

6 Id. at 706.

7 Id. at 708.

8 Goldwater v. Carter, 444 U.S. 996 (1979).

9 Id. at 1002 (Rehnquist, J., concurring); id. at 998 (Powell, J., concurring).

10 See Kucinich v. Bush, 236 F. Supp. 2d 1 (D.D.C. 2002).

11 See Restatement (Third) of the Foreign Relations Law of the United States § 339 (Am. Law Inst. 1987); Restatement (Fourth) of the Foreign Relations Law of the United States: Treaties § 113(1) (Am. Law Inst., Tentative Draft No. 2, 2017). Curtis Bradley was a Reporter for the Restatement (Fourth). The views expressed in this essay are his own.

13 Id. at para. 60.

14 Id. at para. 86.

15 Id. at para. 78.

16 Id. at para. 82.

17 Id. at para. 77. For additional discussion of Miller, see Alison L. Young, Brexit, Miller, and the Regulation of Treaty Withdrawal: One Step Forward, Two Steps Back?, 111 AJIL Unbound 434 (2017).

19 S. Afr. Const., 1996, § 231(1).

20 Id. at § 231(2). There is an exception for treaties “of a technical, administrative or executive nature” and agreements that do “not require either ratification or accession,” which become binding when they are entered into by the executive and do not require legislative assent. Id. at § 231(3). The Rome Statute does not fall within this exception. See Democratic Alliance, supra note 18, at para. 35.

21 S. Afr. Const., § 231(4).

22 Democratic Alliance, supra note 18, at para. 39.

23 Id. at para. 47.

24 Id. at para. 51.

25 Id. at para. 56. For additional discussion of Democratic Alliance, see Hannah Woolaver, Domestic and International Limitations on Treaty Withdrawal: Lessons from South Africa's Attempted Departure from the International Criminal Court, 111 AJIL Unbound 450 (2017).

26 See Arabella Lang, Parliament's Role in Ratifying Treaties 3, 20 (House of Commons Library Briefing Paper No. 5855, Feb. 17, 2017).

27 Compare S. Afr. Const., § 231(2) with § 231(3).

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