1 In this article no distinction is made between treaties in the sense used in Article II of the Constitution and other international agreements.

2 The Federalist No. 64, at 436 (J. Cooke ed., 1961).

3 Id. at 436–37.

4 Daniel George, Lang, Foreign Policy in the Early Republic: the Law of Nations and the Balance of Power 96–97, 137–39 (1985).Google Scholar

5 This assumption by Congress of the power to terminate a treaty because of the other party’s breach seems strange after two hundred years of presidential exercise of the prerogative. See Restatement (Third) of the Foreign Relations Law of the United States §339 (1987).Google Scholar

6 5 Annals of Cong. 2123 (1798).

7 11 Cong. Globe, 27th Cong., 2d Sess. 941 (1842).

8 Compared Op. Att’y Gen. 333, 345 (1851), with 6 Op. Att’y Gen. 658, 661 (1854).

9 23 F. Cas. 785 (C.C.D. Mass. 1855) (No. 13,749), aff’d on other grounds, 67 U.S. (2 Black) 481 (1862).

10 Id. at 785.

11 Id.

12 Ropes v. Clinch, 20 F. Cas. 1171, 1174 (C.C.S.D.N.Y. 1871) (No. 12,041). Another case under the same treaty held to the contrary. Its opaque language was not then reported but can be found in Erades, L. & Wesley, L. Gould, The Relation between International Law and Municipal Law in the Netherlands and the United States 433 (1981)Google Scholar. A later case involved a congressional override of a tariff agreement with Denmark so as to favor trade with Hawaii, then an independent nation. Bartram v. Robertson, 15 F. 212 (C.C.S.D.N.Y. 1883), aff’d, 112 U.S. 116(1883).

13 60 U.S. (19 How.) 393 (1857).

14 Cession of Louisiana, Apr. 30, 1803, U.S.-Fr., 8 Stat. 200, 7 Bevans 812.

15 60 U.S. at 524 (quoting and correcting id., Art. III).

16 Id. at 526.

17 Id. at 629.

18 Id.

19 78 U.S. (11 Wall.) 616 (1870).

20 15 Stat. 42,167 (1868).

21 78 U.S. at 621.

22 Id.

23 Id. The Court cited not only Taylor v. Morton, supra note 9, but also The Clinton Bridge Case, 5 F. Cas. 1060 (C.C.D. Iowa 1867) (No. 2,900), aff’d, 77 U.S. (10 Wall.) 454 (1870), in which the courts held that a statute legalizing a bridge over the Mississippi superseded a treaty in which the United States had promised to keep navigation of the river free and unobstructed.

24 Westen, Peter, The Place of Foreign Treaties in the Courts of the United States: A Reply to Louis Henkin, 101 Harv. L. Rev. 511, 518 (1987)Google Scholar, presents data as to Indian-treaty violations and later congressional attempts to remedy them.

25 Restatement (Third) of the Foreign Relations Law of the United States §303 reporters’ note 5 (1987) [hereinafter Restatement].

26 112 U.S. 580(1884).

27 Id. at 598.

28 Id. at 599.

29 Id.

30 130 U.S. 581 (1899). In the intervening years, the Court had decided Whitney v. Robertson, 124 U.S. 190 (1888), and Bartram v. Robertson, 112 U.S. 116 (1883), affg 15 F. 212 (C.C.S.D.N.Y. 1883), on later-in-time grounds.

31 Treaty Concerning Immigration, Nov. 17, 1880, U.S.-China, Art. II, 22 Stat. 826, 827.

32 13 Cong. Rec. 2551, 2552 (1882). For a history of the interactions between the presidency and Congress on Chinese-immigration restrictions, including an earlier veto by President Hayes in 1879, see Fitzpatrick, Joan & William McKay, Bennett, A Lion in the Path ? The Influence of International Law on the Immigration Policy of the United States, 70 Wash. L. Rev. 589 (1995).Google Scholar

33 For background, see Kens, Paul, Justice Stephen Field 198–203 (1997)Google Scholar; Gyory, Andrew, Closing the Gate: Race, Politics, and the Chinese Exclusion Act (1998).Google Scholar

34 Chinese Exclusion, 130 U.S. at 600.

35 Id. at 602–03.

36 Letter from Chang Yen Hoon, minister plenipotentiary of China, to James, G. Blaine, U.S. secretary of state (July 8, 1889)Google Scholar, 1890 Foreign Relations of the United States 132, 133.Google Scholar

37 Emigration Convention, Mar. 17,1894, U.S.-China, 28 Stat, 1210,6 Bevans 691. The ruling is found at 21 Op. Att’y Gen. 68 (1894).

38 Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804).

39 Rainey v. United States, 232 U.S. 310 (1914).

40 Ex parte Blazekovic, 248 F. 327 (E.D. Mich. 1918); United States ex rel. Pfefer v. Bell, 248 F. 992 (E.D.N.Y. 1918) ;Ex parte Larrucea, 249 F. 981 (S.D. Cal. 1917). For a similar case with respect to 1948 draft legislation, see United States v. Gredzens, 125 F.Supp. 867 (D. Minn. 1954).

41 294 U.S. 330 (1935).

42 Id. at 353.

43 Id. n.3.

44 Id. at 354.

45 Perry, 294 U.S. at 381.

46 137 F.2d 103 (C.C.P.A. 1943).

47 470 F.2d 461 (D.C. Cir. 1972), cert, denied, 411 U.S. 931 (1973).

48 S. Rep. No. 92–359, at 131 (1971). The resolution in question was SC Res. 232 (Dec. 16, 1966).

49 470 F.2d at 465 n.4.

50 Id. at 466.

51 See Henry, J. Steiner, Detlev, F. Vagts, & Harold, Hongju Koh, Transnational Legal Problems 538 (4^th ed. 1994)Google Scholar. The statute that repealed the Rhodesia boycott is 91 Stat. 22 (1979), and the presidential order, 44 Fed. Reg. 74, 787 (Dec. 16, 1979). Seealso22 U.S.C.A. §287c.

52 817 F.2d 119 (D.C. Cir. 1987).

53 Air Transport Service Agreement, May 23, 1947, U.S.-S. Afr., 61 Stat. 3057.

54 Pub. L. No. 103-149, §4, 107 Stat. 1503 (1993). In fact, enforcement of that and other provisions of the Comprehensive Anti-Apartheid Act had been terminated by Exec. Order No. 12, 769, 56 Fed. Reg. 31,855 (1991), reprinted in 22 U.S.C.A. §5061 (West Supp. 2000).

55 Rev. Rul. 80–223, 1980–2 C.B. 217;Rev. Rul. 80–201, id. at 221. See Sachs, note 59 infra, at 870-73, for further detail.

56 Pub. L. No. 100-647, §1012, 102 Stat. 3531 (1988). This provision was applied to override a treaty with Switzerland in Lindsey v. Commissioner, 98 T.C. 672 (1992).

57 I.R.C. §7852(d) (1994).

58 I.R.C. §7852(d) (1982).

59 S. Rep. No. 100-445, at 325 (1988), reprinted in 1988 U.S.C.CA.N. 4836. For commentary, see Sachs, David, Is the 19th Century Doctrine of Treaty Override Good Law for Modem Day Tax Treaties? 47 Tax Law. 867 (1994)Google Scholar; Richard, L. Doernberg, Legislative Overrides of Income Tax Treaties: The Branch Profits Tax and Congressional Arrogation of Authority, 42 Tax Law. 173 (1989).Google Scholar

60 Memorandum from the [EEC] Group of Six on Certain Treaty Override Issues (July 15, 1987), reprinted in 36 Tax Notes 437 (1987), and Doernberg, supra note 59, at 208. Similar language appeared in a resolution of the Organisation for Economic Co-operation and Development (Oct. 2, 1989), reprinted in 2 Tax Notes Int’l 30 (1990). See Sachs, supra note 59, at 875.

61 The attorney general of the United States advised the United Nations as follows:

Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, 1988 ICJ Rep. 12, 24 (Apr. 26). Also in 1988, the later-in-time rule appeared among a series of reasons for dismissing an action aimed at terminating U.S. aid to the contras in Nicaragua. Comm. of U.S. Citizens Living in Nicar. v. Reagan, 859 F.2d 929 (D.C. Cir. 1988).

62 523 U.S. 371,376 (1998).

63 Jordan, J. Paust, Breard and Treaty-Based Rights Under the Consular Convention, 92 AJIL 691, 692 (1998).Google Scholar

64 Sean, D. Murphy, Contemporary Practice of the United States, 94 AJIL 352 (2000)Google Scholar (quoting statement of Sen. Helms, Jan. 20, 2000).

65 974 F.Supp. 302 (S.D.N.Y. 1997), aff’d, 203 F.3d 116 (2d Cir. 2000).

66 For recent controversial writing on the topic, see John, C. Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, 99 Colum. L. Rev. 1955 (1999)Google Scholar; Martin, S. Flaherty, History Right? Historical Scholarship, Original Understanding, and Treaties as “Supreme Law of the Land,” id. at 2095 Google Scholar; Carlos Manuel, Vazquez, Laughing at Treaties, id. at 2154 Google Scholar; John, C. Yoo, Treaties and Public Lawmaking: A Textual and Structural Defense of Non-Self-Execution, id. at 2218.Google Scholar

67 U.S. Const. Art. I, §9.

68 The Over the Top, 5 F.2d 838, 843 (D. Conn. 1925).

69 27 U.S. (2 Pet.) 253 (1829).

70 Lessee of William Pollard’s Heirs v. Kibbe, 39 U.S. (14 Pet.) 353, 369 (1840) (Baldwin, J.).

71 32 U.S. (7 Pet.) 51 (1833).

72 39 U.S. (14 Pet.) at 377.

73 Id. at 388.

74 Wheaton, Henry, Elements of International Law §266 (photo reprint 1936) (8th ed. 1866).Google Scholar

75 1 Kent, James, Commentaries on American Law 155 (photo reprint 1971)Google Scholar (1826–30).

76 5 Annals of Cong. 771 (1796).Google Scholar

77 For a review of these episodes, see Henktn, Louis, Foreign Affairs and the United States Constitution 204–06 (2d ed. 1996).Google Scholar See also Appropriations of Money, 5 Moore Digest §759, at 224–33.

78 E.g., Canadian Transp. v. United States, 663 F.2d 1081 (D.C. Cir. 1980); Diggs v. Richardson, 555 F.2d 848, 851 (D.C. Cir. 1976).

79 For a report, see Sean, D. Murphy, Contemporary Practice of the United States, 95 AJIL 389 (2001).Google Scholar

80 Murray v. The Charming Betsy 6 U.S. (2 Cranch) 64, 118 (1804). For a recent survey, see Curtis, A. Bradley, The Charming Betsy Canon and Separation of Powers: Rethinking the Interpretive Role of International Law, 86 Geo. L. J. 479 (1998).Google Scholar Bradley concentrates on conflicts between statutes and customary international law; the case for construing statutes not to conflict with treaties is stronger than that for avoiding conflict with custom.

81 112 U.S. 536(1884).

82 112 U.S. 580(1884).

83 112 U.S. at 539–40 (text and citations omitted).

84 Id. at 569.

85 130 U.S. 581 (1899).

86 United States v. Palestine Liberation Org., 695 F. Supp. 1456 (S.D.N.Y. 1986). The two editors of this Journal who reviewed this article split on this point. One noted that, at the critical point, Congress talked only of the law’s superseding prior “law” and did not mention treaties—but did so elsewhere in the act. For the earlier position of the Department of Justice on the relation between the treaty and the statute, see supra note 61.

87 S. Rep. No.100–445, at 325 (1988), reprinted in 1988 U.S.C.C.A.N. 4836.

88 Greco-Bulgarian Communities, Advisory Opinion, 1930 PCIJ (ser. B) No. 17, at 32 (July 31) (“the provisions of municipal law cannot prevail over those of the treaty”).

89 Applicability of the Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June 1947, Advisory Opinion, 1988 ICJ rep. 12, 34, para. 57 (Apr. 26).

90 Id. at 42. William Howard Taft as arbitrator in Arbitration between Great Britain and Costa Rica, Oct. 18,1923, 18 AJIL 147, 160 (1924), similarly said:

91 See, e.g., Note from Secretary of State Hughes to Chargé in Mexico (Apr. 15, 1922), [1922] 2 Foreign Relations of the United States 646, 650 Google Scholar (stating: “It is, of course, true that a Nation may by its Constitution and laws override treaties, but by such domestic acts, however sanctioned nationally, it cannot escape its international duties and obligations.”); Note from Secretary of State Bayard to Charge in Mexico (Nov. 1, 1887), 1887 id. at 751, 753 (stating: “It has been constantly maintained and also admitted by the Government of the United States that a government can not appeal to its municipal regulations as an answer to demands for fulfillment of international duties.”).

92 Henfield’s Case, 11 F. Cas. 1099, 1101 (C.C.D. Pa. 1793) (No. 6360) (stating: “The peace, prosperity, and reputation of the United States, will always greatly depend on their fidelity to their engagements; and every virtuous citizen (for every citizen is a party to them) will concur in observing and executing them with honour and good faith . . . “ ).

93 Lessee of William Pollard’s Heirs v. Kibbe, 39 U.S. (14 Pet.) 353, 422 (1840).

94 United States v. Quincy, 31 U.S. (6 Pet.) 445,453 (1831 ); In re The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 53 (1821). In the latter case, Justice Story referred to the agreement as “a treaty which we are bound to observe with the most scrupulous good faith, and which our government could not violate, without disgrace.” Id. at 68.

95 Charlton v. Kelly, 229 U.S. 447, 474 (1913); Ex parte Cooper, 143 U.S. 472,501 (1892); United States v. Rauscher, 119 U.S. 407,418 (1886); United States v. Li, 206 F.3d 56, 60 (1st Cir. 2000); Kwan v. United States, 84 F.Supp.2d 613, 623 (E.D. Pa. 2000). The phrase is frequently picked up simply by quoting the passage where it appears in the Head Money Cases, see text at note 27 supra.

96 Gordon, S. Wood, An Affair of Honor, N.Y. Rev. Books, Apr. 13, 2000, at 67 Google Scholar, 67.

97 Anne-Marie, [Slaughter] Burley, The Alien Tort Statute and the Judicially Act of 1789: A Badge of Honor, 83 AJIL 461 (1989).Google Scholar

98 See, for example, the quotation of Bynkershoek in the text at note 108 infra.

99 The Declaration of Independence (U.S. 1776), reprinted in 1 U.S.C. lxlii, xliii (1994).

100 United States v. Quincy, 31 U.S. (6 Pet.) 445, 453 (1832).

101 Manual for Courts-Martial, United States, para. 212 (rev. ed. 1998).

102 466 U.S. 243, 262 (1984); accord Rocca v. Thompson, 223 U.S. 317, 331 (1912); Geofroy v. Riggs, 133 U.S. 258,271 (1890).

103 Restatement, supra note 25, pt., HI, at 147 (citing Lauterpacht, Hersch, Private Law Sources and Analogies of International Law 155–80 (1927)Google Scholar). For a more modern warning, see Dunoff, Jeffrey & Trachtman, Joel, Economic Analysis of International Law, 24 Yale J. Int’l L. 1, 28–30 (1999).Google Scholar

104 See Robert, A. Hillman, The Richness of Contract Law: An Analysis and Critique of Contemporary Theories of Contract Law (1997).Google Scholar

105 Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 UNTS 331.

106 An electronic search shows that the Supreme Court has cited Vattel 187 times, 99 of them before the Civil War. Bynkershoek has received 41 citations (33 before 1860), and Pufendorf 33 (16 before 1860). Search of LEXIS, Genfed Library, US File (July 15, 2000).

107 3 Emer, de Vattel, The Law of Nations or the Principles of Natural Law, bk. II, ch. XII, §163 (Charles, G. Fenwick trans., 1916) (1758).Google Scholar

108 2 Cornelius van, Bynkershoek, Quaestionum Juris Publici Libri Duo, bk. II, ch. 10 (Frank, Tenney trans., 1930) (1737).Google Scholar

109 26 F. Cas. 832, 846 (C.C.D. Mass. 1822) (No. 15,551).

110 The Antelope, 23 U.S. (10 Wheat.) 66, 120 (1825).

111 Halleck, H. W., International Law; or Rules Regulating the Intercourse of States in Peace and War 42–55, 893–95 (1861)Google Scholar; Woolsey, Theodore, Introduction to the Study of International Law, Designed as an aid in Teaching and in Historical Studies 1–5, 235–37 (1860).Google Scholar

112 See Wehberg, Hans, Pacta Sunt Servanda, 53 AJIL 775, 780–81 (1959).Google Scholar

113 James, L. Brierly, The Law of Nations: an Introduction to the International Law of Peace 53–54 (Waldock, Humphrey ed.,6th ed. 1963)Google Scholar; Thomas, M. Franck, The Power of Legrrimacy a Mongnations 187 (1990).Google Scholar

114 Fried, Charles, Contract as Promise: A Theory of Contractual Obligation (1981).Google Scholar

115 Wehberg, supra note 112, at 776-78.

116 For different views of the role fear of war and a sense of military weakness played in early American international law and international relations thinking, see Jay, Stewart, The Status of the Law of Nations in Early American Law, 42 Vand. L. Rev. 819 (1989)Google Scholar; Douglas, J. Sylvester, International Law as Sword or Shield”? Early American Foreign Policy and the Law of Nations, 32 N.Y.U.J. Int’l L. & Pol. 1 (1999).Google Scholar

117 761 F.2d 370, 375 (7th Cir. 1985).

118 International relations scholars would be apt to conclude that these episodes are more “situational” than “dispositional”; that is, that they tend to depend on the circumstances of individual cases rather than a consistent tendency to act in a particular way. See Mercer, Jonathan, Reputation and International Politics (1996)Google Scholar (focusing on national reputations for resolution in the face of aggression).

119 John, K. Setear, Responses to Breach of a Treaty and Rationalist International Relations Theory: The Rules of Release and Remediation in the Law of Treaties and the Law of State Responsibility, 83 Va. L. Rev. 1, 123 (1997).Google Scholar

120 See, e.g. Jack, L. Goldsmith, Sovereignty, International Relations Theory and International Law, 52 Stan. L. Rev. 959, 985 (2000)Google Scholar; Robert, O. Keohane, International Relations and International Law: Two Optics, 38 Harv. Int’l L. J. 487 (1997)Google Scholar John, K. Setear, An Iterative Perspective on Treaties: A Synthesis of International Relations Theory and International Law, 37 Harv. Int’l L. J. 139 (1996).Google Scholar Compare the treatment of reputation in Hovi, Jon, Games, Threats and Treaties: Understanding Commitments in International Relations 103–04 (1998).Google Scholar

121 Goldsmith, supra note 120, at 986; see also Jack, L. Goldsmith & Eric, A. Posner, Understanding the Resemblance Between Modem and Traditional Customary International Law, 40 Va. J. Int’l L. 639 (2000).Google Scholar

122 See, e.g., Nowak, Martin & Sigmund, Karl, Shrewd Investments, 288 Science 819 (2000).CrossRefGoogle Scholar See generally Axelrod, Robert, The Evolution of Cooperation (1984).Google ScholarPubMed

123 Weisburd, A. M., Implications of International Relations Theory for the International Law of Human Rights, 38 Colum. J. Transnat’l L. 45, 103–05 (1999).Google Scholar

124 William, R. Cline, International Debt Reexamined (1995)Google Scholar surveys the quality of predictions in this realm.

125 See, e.g., Restatement, supra note 25; Thomas, M. Franck & Michael, J. Glennon, Foreign Relations and National Security Law (2d ed. 1993).Google Scholar

126 See, for example, the remarks of Ambassador John Scali about the difficulty of persuading others to live up to their legal obligations after our violation of the Rhodesian boycott and about the danger of others doubting U.S. reliability. Sanctions—Southern Rhodesia, 1973 Digest §11, at 413–15.

127 See note 60 supra.

128 The count works out differently if one uses the number of treaties; as in the Head Money Cases, see text at note 26 supra, one statute can override several treaties. Similarly, a number of separate statutes may figure in one episode, as in the case of the various amendments to the Internal Revenue Code overriding tax treaties, see notes 56–60 supra. The number of separate violations maybe larger yet, as in the case of failure to notify aliens of their rights under the Vienna Convention, see text at note 59 supra.

129 For the early history, see Accretion, Erosion and Avulsion, 1 Hackworth Digest §60, at 410–17. The statute settling the matter is 78 Stat. 184 (1964), 22 U.S.C. §§ 277d-l-277d-25 (1994).

130 The action was challenged in United States v. Yoshida Int’l, Inc., 526 F.2d 560 (C.C.P.A. 1975), on delegation rather than treaty violation grounds. Problems involving the International Monetary Fund (IMF) and the General Agreement on Tariffs and Trade were ironed out by later negotiations.

131 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (June 27).

132 This history is described in Detlev, F. Vagts, Neutrality Law in World War II, 20 Cardozo L. Rev. 459, 466–67 (1998).Google Scholar

133 United States v. Alvarez-Machain, 504 U.S. 655 (1992).

134 For an account of this episode, see Restatement, supra note 25, §326 reporters’ note 2.

135 This story is told in David, M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 Mich. L. Rev. 1075, 1210–37 (2000).Google Scholar

136 Lynchings of Italians at New Orleans and Elsewhere, 6 Moore DIGEST §1026, at 837–49.

137 The example is taken from an episode affecting Norway described in HOVI, supra note 120, at 82.

138 For various statistics, see Steiner, Vagts, & Koh, supra note 51, at 561.

139 Effect of Changed Conditions, 5 Hackworth Digest §511, at 353–56. The United States asserted that it had the right to suspend the treaty under “approved principles of international law” and that there had been no opportunity for prior notice and negotiation. The later Load Line Convention of April 5, 1966, contained provisions permitting suspension during hostilities. 18 UST 1857, 640 UNTS 133.

140 See text at note 132 supra.

141 For an account of U.S. wins and losses in the WTO, see Sean, D. Murphy, Contemporary Practice of the United States, 94 AJIL 697 (2000)Google Scholar.

142 Apparently, the United States promised Mexico not to indulge in further kidnappings. Bassiouni, M. Cherif, International Extradition: U.S. Law and Practice 244 n.96 (3d ed. 1996)Google Scholar.

143 See text at note 136 supra.

144 For an account of these negotiations, see Jonathan, E. Helmreich, The Diplomacy of Apology: U.S. Bombings of Switzerland during World War II, Airu. Rev., May-June 1977, at 19.Google Scholar

145 Contemporary Practice of the United States, 90 AJIL 278 (1996).

146 See text at notes 56-60 supra.

147 See note 126 and text at note 47 supra.

148 504 U.S. 655, 669 n.16 (1992).

149 Cunard S.S. Co. v. Mellon, 262 U.S. 100 (1923).

150 See text at note 37 supra. Other examples of such renegotiation are the load lines case, supra note 139, and the UN dues imbroglio, supra note 79.

151 See the discussion of “efficient breach” in the context of treaty law in Dunoff & Trachtman, supra note 103, at 31–33.

152 For material on the interplay between those ideas, see Lon, L. Fuller, Basic Contract Law 456–508 (1947).Google Scholar

153 Vienna Convention on the Law of Treaties, supra note 105, Art. 52.

154 An article in the German newspaper Die Zeit on November 16, 2000, describes how the German intensity in pursuing the World Court proceedings against the United States in the LaGrand case is fueled by such separate factors as the U.S. blockage of Germany’s candidate for presidency of the IMF, the tensions about the bombing of Serbia, and various episodes of allegedly arrogant U.S. diplomatic behavior.

155 See Peter, J. Spiro, The New Sovereigntists: American Exceptionalism and Its False Prophets, Foreign Aff., Nov.-Dec, 2000, at 9.Google Scholar