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Using Framework Statutes to Facilitate U.S. Treaty Making

Published online by Cambridge University Press:  27 February 2017

Steve Charnovitz
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Editorial Comments
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American Journal of International Law , Volume 98 , Issue 4 , October 2004 , pp. 696 - 710
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Copyright © American Society of International Law 2004

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References

1 See generally Free Trade Agreements: Us Strategies and Priorities (Jeffrey J. Schott ed., 2004).

2 United States–Australia Free Trade Agreement Implementation Act, Pub. L. No. 108–286, §2, 118 Stat. 919 (2004)Google Scholar (to be codified at 19 U.S.C. §3805 note).

3 United States–Morocco Free Trade Agreement Implementation Act, Pub. L. No. 108–302, 118 Stat. 1103 (2004)Google Scholar (to be codified at 19 U.S.C. §3805 note).

4 19 U.S.C.S. §3803(a) (2004). This deadline may be extended to 2007 by the president.

5 Wright, Laura L.. Trade Promotion Authority: Fast Track for the Twenty–first Century? 12 Wm. & Mary Bill Rts. J. 979 (2004)Google Scholar.

6 “Fast track” was used in the 1988 law authorizing trade negotiations but dropped in the Bipartisan Trade Promotion Authority Act of 2002. Compare 19 U.S.C.S. §2903(b) (2004) with 19 U.S.C.S. §3803 (2004). Apparently, the term “fast track” was thought to carry too much political baggage.

7 Remarks to the Business Roundtable, 2001 Pub. Papers 705, 708.

8 19 U.S.C.S. §§3801–3813 (2004).

9 U.S. Const. Art. II, §2, cl. 2. Hereinafter, this clause will be referred to as “Article II.”

10 U.S. presidents use a variety of authorities to achieve new international agreements. The most prominent are (1) a “sole executive agreement’ based on the president’s independent constitutional authority; (2) an agreement preauthorized by Congress; (3) an agreement submitted to Congress for review and approval; and (4) an agreement submitted by the president to the Senate for advice and consent. This comment discusses the possibility of substituting the third method for many international agreements now processed using the fourth method.

11 Hamilton, Lee (With Jordan Tama), A Creative Tension: The Foreign Policy Roles of the President and Congress 65 (2002)Google Scholar.

12 Anderson, Chandler P.. The Extent and Limitations of the Treaty–Making Power Under the Constitution, 1 AJIL 636, 648 (1907)Google Scholar (noting the sanction of custom for the proposition that where certain powers are expressly confided by the Constitution to Congress, the concurrence of both houses is necessary to make a treaty undertaking effective).

13 Roeder, Linda, Bush Administration Plans to Introduce Basel Convention Legislation in Congress, Daily Rep. for Executives (BNA), June 11, 2004 Google Scholar, at A–29.

14 Phibbs, Pat, Joining Environmental Treaties Prompts Sharp Debate in United States, Daily Rep. for Executives (BNA), July 19, 2004 Google Scholar, at C–1. Even though the Rotterdam Convention is about international trade, no special procedure exists to expedite implementing legislation.

15 Murphy, Sean D.. Contemporary Practice of the United States, 95 AJIL 416 (2001)Google ScholarPubMed.

16 146 Cong. Rec. S8866 (daily ed. Sept. 20, 2000).

17 Former Legal Advisers’ Letter on Accession to the Law of the Sea Convention, Editors’ Note, 98 AJIL 307 & n.1 (2004)Google Scholar; Hirsch, Steve, Law of the Sea Treaty Getting Submerged, Nat’l J., Apr. 10, 2004, at 1126–27 Google Scholar.

18 Zoellick, Robert B.. Our Credo: Free Trade and Competition, Wall St. J., July 10, 2003, at A10.Google Scholar

19 Free Trade Agreement, Austl.-U.S., May 18, 2004, Annex 2–C, Art. 6.5, ch. 11, & Arts. 17.9, 17.10, 22.5 (not yet in force), available at <http://www.ustr.gov> . Some of the provisions on pharmaceuticals drew controversy. Becker, Elizabeth & Pear, Robert, Trade Agreement May Undercut Importing of Inexpensive Drugs, N.Y. Times, July 12, 2004, at A1Google Scholar; Marilyn, Chase & Lueck, Sarah, In New Trade Pacts, U.S. Seeks to Limit Reach of Generic Drugs, Wall St. J. Online, July 6, 2004, at A1Google Scholar.

20 Restatement (Third) of the Foreign Relations Law of the United States §303 cmt.e (1987)Google Scholar [hereinafter Restatement (Third)].

21 Id.

22 Bruce Ackerman & David Golove, Is Nafta Constitutional? (1995)Google Scholar.

23 Id. at 24, 27.

24 Id. at 2.

25 Id. at 40–41. Nine years after passage of the 1923 law, the chairman of the House Committee on Foreign Affairs gave a presentation at the ASIL annual meeting where he pointed out this “striking instance of international agreement authorized by Congress” and noted how that procedure was “ignoring the rule of treaty–making with the consent of two–thirds of die Senate.” J. Linthicum, Charles, The Committee on Foreign Affairs of the House of Representatives and the Treaty–Making Power, 26 ASIL Proc. 249, 252 (1932).Google Scholar

26 22 U.S.C.S. §286 (2004); Ackerman & Golove, supra note 22, at 91, 94.

27 Made in USA Found, v. United States, 56 F.Supp.2d 1226(1999), vacated, 242 F.3d 1300, 1319–20, cert, denied, 534 U.S. 1039(2001).

28 Am. Ins. Ass’n v. Garamendi, 539 U.S. 396 (2003). The issue in the case was whether a U.S. agreement with Germany regarding Holocaust claims preempted California’s Holocaust Victim Insurance Relief Act. The Court found preemption. Denning, Brannon P.. Case Report: American Insurance Ass’n v. Garamendi; Deutsch v. Turner Corp., in 97 AJIL 950 (2003)Google Scholar.

29 Garamendi, 539 U.S. at 415.

30 Garamendi, 539 U.S. at 436 n.3 (Ginsburg, J., dissenting) (citing Louis Henkin, Foreign Affairs and the United States Constitution 222 (2d ed. 1996)).

31 Borchard, Edwin, Treaties and Executive Agreements—A Reply, 54 Yale L.J. 616, 621–22 &n.24, 653 (1945)Google Scholar. Borchard saw no justification in the Constitution for a power of Congress to sanction, approve, validate, or ratify international agreements.

32 For a summary of the debate, see Vagts, Detlev F.. The Exclusive Treaty Power Revisited, 89 AJIL 40 (1995)Google Scholar.

33 Tribe, Laurence H.. Taking Text and Structure Seriously: Reflections on Free–Form Method in Constitutional Interpretation, 108 Harv. L. Rev. 1221, 1234–35 n.47, 1258, 1261, 1269–70, 1277–78 (1995)Google Scholar. An extensive response to Tribe’s thesis appears in Golove, David M.. Against Free–Form Formalism, 73 N.Y.U.L. Rev. 1791 (1998)Google Scholar.

34 Tribe, supra note 33, at 1254.

35 Restatement (Third), supra note 20, §312 cmt.j.

36 See Sloss, David, International Agreements and the Political Safeguards of Federalism, 55 Stan. L. Rev. 1963, 1992 (2003)Google Scholar (explaining that ex post agreements are ex ante in a constitutional sense because congressional approval takes place before the president makes a binding commitment); F, Detlev. Vagts, , International Agreements, the Senate and the Constitution., 36 Colum. J. Transnat’l L. 143, 148 (1998)Google Scholar. Perhaps the earliest scholarship to question the before/after distinction was the seminal study, McDougal, Myres S.. & Lans, Asher, Treaties and Congressional–Executive or Presidential Agreements: Interchangeable Instruments of National Policy: [Part] 1,54 Yale L.J. 181, 199–200 n.22 (1945)Google Scholar (“One wonders . . . where constitutional basis can be found for introducing a time element—valid before Presidential action, invalid after Presidential action—into Congress’s powers to authorize or sanction international agreements within the scope of its competence.”).

37 Vagts, supra note 36, at 147; see Restatement (Third), supra note 20, §303(2); McDougal & Lans, supra note 36, at 199–200 n.22 (as quoted supra note 36).

38 See Swaine, Edward T.. Does Federalism Constrain the Treaty Power? 103 Colum. L. Rev. 403 (2003)Google Scholar (discussing the recent cases).

39 Henkin, supra note 30, at 217 n.*. The reference to “dignity” comes from the Altman case, where the Supreme Court decided that the term “treaty” in a jurisdictional statute also encompassed a commercial agreement that had been preaudiorized by Congress yet “was not a treaty possessing die dignity of one requiring ratification by the Senate.” B. Altman & Co. v. United States, 224 U.S. 583, 601 (1912). The Altman Court thus implicitly acknowledged the existence of a class of U.S. international compacts that did not require consent by the Senate. The implications of this holding for facilitating U.S. international agreements was recognized immediately by the editors of this Journal. Applicability of the Case of Altman v. The United States to Special Agreements Concluded Under a General Treaty of Arbitration, 6 AJIL 716 (1912)Google Scholar (unsigned Editorial Comment).

40 Tribe, supra note 33, at 1268.

41 Hyman, Andrew T.. The Unconstitutionality of Long–Term Nuclear Pacts That Are Rejected by over One–Third of the Senate, 23 Denv.J. Int’l L. & Pol’y 313, 316–17 (1995)Google Scholar. The framework statute for the negotiation of nuclear pacts is 42 U.S.C.S. §2153 (2004)Google Scholar.

42 Franck, Thomas M.. & Weisband, Edward, Foreign Policy by Congress 144 (1979)Google Scholar.

43 See Spiro, Peter J.. Treaties, Executive Agreements, and Constitutional Method, 79 Tex. L. Rev. 961, 1009 (2001)Google Scholar (presenting a theory of constitutional increments).

44 An Act to Establish the Post–Office and Post–Roads Within the United States, 1 Stat. 232, 239 (1792)Google Scholar.

45 See Restatement (Third), supra note 20, §303 reporters’ n.8. Of course, Senate approval of an agreement by a majority vote does not legitimize the process if one believes that the Senate has a constitutional responsibility to approve agreements by a two–thirds vote.

46 Yoo, John C.. Laws as Treaties?: The Constitutionality of Congressional–Executive Agreements, 99 Mich. L. Rev. 757 (2001)Google Scholar.

47 Id. at 821. Furthermore, he asserts that when Article II treaties are used for matters within Congress’s powers, such treaties must be non–self–executing. Id.

48 Id. at 822–23, 849. Building on Yoo’s work, another analyst has suggested that the Constitution gives the president discretion to decide when a temporary national security accord should be approved as a congressional-executive agreement. Stone, Christopher B.. Signaling Behavior, Congressional–Executive Agreements, and the SALT I Interim Agreement, 34 Geo. Wash. Int’l L. Rev. 305, 347–50 (2002)Google Scholar.

49 Yoo, supra note 46, at 829, 849.

50 U.S. Const. Art. I, §7, cl. 1; Restatement (Third), supra note 20, §303 reporters’ n.9.

51 Vagts, supra note 32, at 41.

52 The attention given by the framers is reviewed in Yoo, supra note 46, at 834–36.

53 For a discussion of these criticisms, see E, Robert. Hudec, , “Circumventing” Democracy: The Political Morality of Trade Negotiations, 25 N.Y.U. J. Int’l L. & Pol. 311 (1993)Google Scholar; Harold, Koh, Hongju, The Fast Track and United States Trade Policy, 18 Brook. J. Int’l L. 143, 161–71 (1992)Google Scholar.

54 140 CONG. REC. 29,953 (Nov. 30, 1994).

55 Finch, George A.. The Treaty of Peace with Germany in the United States Senate, 14 AJIL 155, 156–57 (1920)Google Scholar (reprinting the resolution); see also Daniel Patrick Moynihan, on the Law of Nations 50 (1990)Google Scholar. President Woodrow Wilson had neglected to provide a consultative role for key senators during the Paris Peace Conference. A generation later, President Franklin D. Roosevelt did not make Wilson’s mistake in the U.S. preparations for the conference to draft the United Nations Charter. The Roosevelt administration invited leading members of the Senate and the House to serve as advisers on the U.S. delegation to the San Francisco Conference. Schlesinger, Stephen C.. Act of Creation: The Founding of the United Nations 62, 121 (2003)Google Scholar.

56 Dewar, Helen, Senate Advises Against Emissions Treaty That Lets Developing Nations Pollute, Wash. Post, July 26, 1997, at A11Google Scholar.

57 S. Res. 98, 143 Cong. Rec. S8138–39 (daily ed. July 25, 1997). The resolution is reprinted and the issues in question discussed in Victor, David G.. Climate Change: Debating America’s Policy Options (2004)Google Scholar, available at <http://www.cfr.org/climatechange> .

58 A statute enacted in 1987 provided a “Mandate for action on the global climate,” but only vague goals were set, including working toward multilateral agreements. 15 U.S.C.S. §2901 note (2004). Congress did not update that statute following the U.S. ratification in 1992 of the UN Framework Convention on Climate Change.

59 S. Res. 98, supra note 57, §2.

60 See, e.g., 19 U.S.C.S. §3804 (2004); 19 U.S.C.S. §3807 (2004).

61 19 U.S.C.S. §2211(2004).

62 See Sullivan, Kevin, Four U.S. Senators Lobbying in Kyoto; Viewpoints Vary on Climate Treaty, Wash. Post, Dec. 3, 1997, at A35.Google Scholar

63 For polling data, see PIPA/Knowledge Networks Poll, Americans on Climate Change (June 25, 2004), available at<http://www.pipa.org>>Google Scholar . But see Goldsmith, Jack, Liberal Democracy and Cosmopolitan Duty, 55 Stan. L. Rev. 1667, 1682–83 (2003)Google Scholar (using the example of climate change to point out that tricky issues arise when polls say one thing and representatives act otherwise).

64 Quoted in Wright, Jim, Balance of Power 181 (1996)Google Scholar.

65 Borchard, Edwin, Shall the Executive Agreement Replace the Treaty? 38 AJIL 637, 639 (1944)Google Scholar.

66 See James Brown, Scott, Treaty-Making Under the Authority of the United States, 28 ASIL Proc. 2, 15 (1934)Google Scholar (noting that the president, with rare exceptions, “acted on his own advice” and then submitted treaties to the Senate after they had been concluded).

67 See Lori Fisler, Damrosch, The Role of the United States Senate Concerning “Self–Executing” and “Non–Self–Executing” Treaties, 61 Chi.–Kent L. Rev. 515 (1991)Google Scholar; Henkin, Louis, U.S. Ratification of Human Rights Conventions: The Ghost of Senator Bricker, 89 AJIL 341, 347 (1995)Google Scholar.

68 See, e.g., 19 U.S.C.S. §3512 (2004) (regarding the domestic effect of the WTO Agreement).

69 Some U.S. treaties may be self–executing. Jackson, John H.. The Effect of Treaties in Domestic Law in the United States, in The Jurisprudence of Gatt & The WTO 297 (2000)Google Scholar; Damrosch, supra note 67, at 529.

70 See Palmer, Geoffrey, New Ways to Make International Environmental Law, 86 AJIL 259, 271 (1992)Google Scholar (“The ordering of the affairs of nations in their relationships with one another has steadily eroded the power of nations to please themselves.”).

71 See Missouri v. Holland, 252 U.S. 416, 435 (1920) (“But for the treaty and the [implementing] statute there soon might be no birds for any powers to deal with.”). Justice Oliver Wendell Holmes’s opinion for the Court upheld the constitutionality of both the Migratory Bird Treaty Act and the Convention for die Protection of Migratory Birds in the United States and Canada.

72 North American Free Trade Agreement Implementation Act, Pub. L. No. 103–182, 107 Stat. 2057 (1993)Google Scholar; Uruguay Round Agreements Act, Pub. L. No. 103–465,108 Stat. 4809 (1994)Google ScholarPubMed. The Uruguay Round of negotiations led to the establishment of the WTO.

73 Rugaber, Christopher S.. Chile, Singapore Draft Legislation Approved by House, Senate Panels, Daily Rep. for Executives (BNA), July 11, 2003 Google Scholar, at A–30. Making this fix was easier for a bilateral agreement than it would have been for a multilateral agreement.

74 S. Res. 211, 149 Cong. Rec. S10,589 (daily ed. July 31, 2003).

75 HENKIN, supra note 30, at 218.

76 Henkin, Louis, Constitutionalism, Democracy, and Foreign Affairs 61 (1990)Google Scholar.

77 See Spiro, supra note 43, at 1002–03 (suggesting that if either the NAFTA or the WTO Agreement had been submitted to the Senate as an Article II treaty, that departure would have sparked a furious constitutional debate).

78 Casper, Gerhard, Constitutional Constraints on the Conduct of Foreign and Defense Policy: A Nonjudicial Model, 43 U. Chi. L. Rev. 463, 482 (1976)Google Scholar.

79 Id.

80 Harold Hongju Koh, The National Security Constitution 6, 69, 160 (1990)Google Scholar. Koh also calls it “charter” legislation.

81 Id. at 160.

82 Id. at 195.

83 Other analysts have advocated a broader use of the fast–track mechanism. See Destler, I. M. & Randall Henning, C. , Dollar Politics: Exchange Rate Policymaking in the United States 163–64 (1989)Google Scholar (suggesting a fast track for international fiscal policy agreements); Carrier, Michael A.. All Aboard the Congressional Fast Track: From Trade to Beyond, 29 Geo. Wash. J. Int’l L. & Econ. 687, 722–34 (1996)Google Scholar (proposing a fast track for arms control and environmental agreements); see also Setear, John K.. The President’s Rational Choice of a Treaty’s Preratification Pathway: Article II, Congressional–Executive Agreement, or Executive Agreement? 31 J. Legal Stud. 5, 31 (2002)Google Scholar (discussing the lack of use of a congressional–executive agreement for environmental issues and observing that no one appears to have imagined that the Kyoto Protocol could take a preratification pathway other than via Article II).

84 One colleague raises the point that expanding the trade approach to other fields could lead to dilution of its attractive features, which could come back to bite future trade–authorizing legislation. Although I acknowledge that danger, I wonder whether reserving rapid procedures only for trade agreements will remain politically sustainable.

85 See text at note 7 supra.

86 22 U.S.C.S. §7426(c) (2004); see Murphy, Sean D.. Contemporary Practice of the United States, 97 AJIL 200 (2003)Google ScholarPubMed. A U.S. statute passed in 1994 had included a “sense of the Senate” regarding the establishment of an International Criminal Court. Pub. L. No. 103-236, §517, 108 Stat. 382, 468 (1994)Google Scholar.

87 See, e.g., Dean, Arthur H.. Amending the Treaty Power, 6 Stan. L. Rev. 589 (1954)Google Scholar; Garner, James W. Acts and Joint Resolutions of Congress as Substitutes for Treaties, 29 AJIL 482, 482–83 (1935)Google Scholar; Tribe, supra note 33; Wright, Herbert, The Two–Thirds Vote of the Senate in Treaty–Making,, 38 AJIL 643 (1944)Google Scholar; Wright, Quincy, The United States and International Agreements, 38 AJIL 341, 348, 355 (1944)Google Scholar.

88 Most U.S. trade agreements put to a vote have received broad congressional approval, but die vote on one was close. In November 1993, Congress approved the NAFTA by a 53.9% majority in the House and a 61.6% majority in the Senate.