As a continuation of our post series that includes content of ALI drafts, we now include Section 113, Authority to Suspend, Terminate, or Withdraw from Treaties, from the Foreign Relations Law, Treaties project. This Section is consistent in substance with § 339 of the Restatement Third, which similarly concluded that the President had the constitutional authority to suspend or terminate international agreements on behalf of the United States, either in accordance with a withdrawal clause or other terms in a treaty or by invoking international law grounds for suspension or termination. This Section takes account of developments in treaty practice that have occurred since the last Restatement and also provides a more detailed description of relevant historical practice.

Black Letter and Comment from Tentative Draft No. 2:

§ 113. Authority to Suspend, Terminate, or Withdraw from Treaties    

(1) According to established practice, the President has the authority to act on behalf of the United States in suspending or terminating U.S. treaty commitments and in withdrawing the United States from treaties, either on the basis of terms in the treaty allowing for such action (such as a withdrawal clause) or on the basis of international law that would justify such action.

(2) International law determines the extent to which acts by the United States to suspend, terminate, or withdraw from a treaty will be effective in altering U.S. obligations under the treaty.

Comment:

a. International law. The Vienna Convention on the Law of Treaties sets forth various conditions under which nations can suspend, terminate, or withdraw from treaties. For example, it provides that treaty obligations may be suspended or terminated, or that a state may withdraw from (or “denounce”) a treaty, in accordance with a treaty’s terms, and under certain other limited conditions indicating consent of the parties. Id. arts. 54, 56-59. It also specifies that a party to a treaty may suspend or terminate its obligations going forward in response to a material breach by another party, impossibility of performance, or a fundamental change of circumstances. Vienna Convention, arts. 60-62. The United States, although not a party to the Vienna Convention, follows those provisions of the Convention that it considers to reflect customary international law, see
§ 101, Reporters’ Note 1, and it has indicated that the Vienna Convention provisions relating to suspension, termination, and withdrawal are generally consistent with accepted principles of international law. See Reporters’ Note 1.

b. The constitutional text. The Supreme Court has not resolved the constitutional authority to terminate a treaty, and the one constitutional challenge to unilateral presidential termination that reached the Court was dismissed as nonjusticiable. Goldwater v. Carter, 444 U.S. 996 (1979). See Reporters’ Note 4. The text of the Constitution specifies that the President has the authority to make treaties with the advice and consent of two-thirds of the senators present. See art. II, § 2. It does not specify how the United States is to suspend, terminate, or withdraw from treaties. The Constitution does, however, give the President substantial authority relating to diplomacy. It provides, for example, that the President “shall receive Ambassadors and other public Ministers” and that the President has the power to “appoint Ambassadors, other public Ministers and Consuls,” with the advice and consent of the Senate. U.S. Const., art. II, § 3. In addition, as the chief executive officer of the United States, the President oversees the executive branch, including the Department of State. In part because of these powers and responsibilities, it has long been accepted that the President and his or her agents represent the United States in international diplomacy and discourse. John Marshall, while a member of Congress, famously described the President as the “sole organ” of the United States in foreign relations, see 10 Annals of Cong. 613 (1800), and the Supreme Court has endorsed this description, see United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936). While the “sole organ” characterization may not take full account of Congress’s substantial powers relating to foreign relations, it is well accepted that the President “has a unique role in communicating with foreign governments.” Zivotofsky v. Kerry, 135 S. Ct. 2076, 2090 (2015). See also Charlton v. Kelly, 229 U.S. 447, 476 (1913) (observing that the “executive department” had decided “to waive any right to free itself from the obligation” in an extradition treaty). Acts by the United States to suspend, terminate, or withdraw the United States from treaties are closely tied to diplomacy.

c. Historical practice. The Supreme Court has made clear that when the constitutional text is silent or ambiguous, it is appropriate to consider longstanding governmental practice in discerning the Constitution’s distribution of authority between Congress and the President. See, e.g., NLRB v. Noel Canning, 134 S. Ct. 2550, 2559 (2014). From its Founding through the end of the 19th century, the United States employed a variety of methods in suspending, terminating, or withdrawing from treaties, including direct congressional action, congressional authorization or direction of presidential action, and senatorial authorization or approval. See Reporters’ Note 2. Since then, however, almost all actions to suspend, terminate, or withdraw from treaties have been carried out on behalf of the United States by the President and his or her agents acting unilaterally. See Reporters’ Note 3. For the most part, Congress has not seriously disputed that the President has the authority to represent the United States in this manner. Although there was substantial controversy over President Jimmy Carter’s unilateral termination of a mutual defense treaty with Taiwan in 1978, the termination nevertheless took effect, and subsequent presidential actions to terminate or withdraw from treaties have been less controversial. This historical practice has concerned unilateral acts by the President to suspend, terminate, or withdraw from treaties in accordance with their terms, or otherwise in accordance with international law, and does not necessarily support broader unilateral authority. See Reporters’ Note 5.

d. Structural and functional considerations. It might be argued that a treaty should be subject to termination only through the same domestic process required for its approval—that is, with the advice and consent of two-thirds of the Senate. By analogy, it is understood that the termination of legislation requires the same process that is required for the making of legislation, see, e.g., Clinton v. City of New York, 524 U.S. 417, 438 (1998), and in both instances termination may alter federal law. Importantly, however, some presidential actions that require senatorial consent are not understood as requiring that consent for their undoing. Most notably, it is understood that Presidents have substantial authority to terminate the appointment of high-level executive officers, even though the appointment of such officers requires approval by a majority of the Senate. See, e.g., Myers v. United States, 272 U.S. 52 (1926). Moreover, treaties are not fully analogous to legislation in their formation: most notably, unlike statutes, treaties can never take effect for the United States unless approved by the President. Functionally, there is also likely to be a greater need for flexibility in the decision to suspend, terminate, or withdraw from a treaty than in the decision to join a treaty.  In particular, if Presidents were required to obtain authorization from two-thirds of the Senate or from Congress, it might be difficult in some situations for the United States to respond effectively to actions by other treaty parties, such as a material breach of a treaty obligation. See Goldwater v. Carter, 617 F.2d 697, 706 (D.C. Cir. 1979) (“In many of these situations the President must take immediate action.”), vacated on other grounds, 444 U.S. 996 (1979). Such structural and functional considerations are consistent with the general ability of the President to act unilaterally, as it has been exercised in practice; they do not, however, suggest that Congress or the Senate lack the ability to limit suspension, termination, or withdrawal. See Reporters’ Note 6.