Good Governance Paper No. 12: Treaty Withdrawals

[Editors’ note: This essay is one in a series—the Good Governance Papers—organized by Just Security. In these essays, leading experts explore actionable legislative and administrative proposals to promote non-partisan principles of good government, public integrity, and the rule of law. For more information, you can read the Introduction by the series’ editors.]

The United States is inching closer to a constitutional clash between Congress and the President over the basic question of which branch is authorized to withdraw the United States from its international treaties, and in what circumstances. While over the years Congress generally has been content to watch with relative quiescence as presidents unilaterally withdraw from binding international agreements with the “stroke of a pen,” that period should be coming to an end.

Two recent developments signal a coming shift. In 2019, Congress included a provision in the 2020 National Defense Authorization Act requiring prior congressional notification if the Trump Administration wished to withdraw from the Open Skies Treaty. The Trump Administration ignored this requirement when it announced its intent to withdraw from the treaty in May 2020.

A week later, President Trump announced that the United States would withdraw from the World Health Organization (WHO), and in July 2020 the Trump administration submitted a letter to the United Nations officially notifying the Secretary-General of the U.S. withdrawal. Public reports of that letter suggest that the administration invoked a one-year notice period that would elapse before the withdrawal becomes effective on July 6, 2021, taking apparent account of at least one of the two preconditions for U.S. withdrawal from the WHO as set forth by Congress. Congress set preconditions for withdrawal in a 1948 joint resolution, which was also the congressional action that authorized the United States to join the WHO in the first place. Whether the United States actually withdraws in 2021, or abides by the second precondition set by Congress—that is, full payment of the U.S. financial obligations for the “current fiscal year”—remains to be seen, as does what Congress will do if the United States fails to withdraw in keeping with the congressional requirements.

An assumed right of unilateral presidential withdrawal from congressionally-authorized treaties in all circumstances is both problematic under domestic law and destabilizing to international relationships. As we have said before, it is debatable whether unilateral Executive withdrawal from congressionally-authorized treaties is constitutionally permitted. Much depends on the circumstances, including the terms of the agreement (especially any express withdrawal clauses), the form of the agreement under domestic law, the subject matter of the agreement, and the broader historical context around the exercise of authorities by either Congress or the Executive with respect to that subject matter. Thus, at the domestic level, a legal framework that leaves the decision of whether to terminate or withdraw from a treaty up to the President in every instance arguably does not accord with the broader constitutional scheme regarding the separation of powers between Congress and the Executive in the conduct of foreign relations. On the international plane, the prospect of unilateral withdrawal at the whim of a President can threaten the stability of the international order and undermine the confidence of our allies, doing significant damage to U.S. foreign policy and security interests in the short, medium, and long run.

It’s time to rebalance the scales: Congress can and should act to clarify its role in treaty withdrawal. First, rather than setting up a constitutional crisis every time the Executive wishes to withdraw from a treaty and Congress disagrees, conditions and requirements for withdrawal should be baked into the congressional authorization for the agreement. Second, to account for agreements in which Congress’s authorizing role may be contested or unclear, the Executive should update its policy guidance by outlining the proper procedure for withdrawal. Finally, Congress should consider enacting legislation to set out a process for withdrawing from certain critical agreements or categories of agreements that are already in force. Clarifying how withdrawal will work for international agreements will help the United States steer clear of a constitutional collision and will promote critical stability needed both domestically and internationally.

The Problem

While the Constitution requires congressional participation in order for the United States to enter into treaties and other international agreements (other than agreements that fall squarely within the President’s independent authorities over foreign relations), it is silent as to how the United States may exit them. The historical accretion of presidential power in the United States, throughout the 20th and now into the 21st century, has led to a practice of and belief in unilateral presidential authority to withdraw from or terminate international agreements. The Trump administration appears to represent a high point of this practice—since 2017 it has been responsible for withdrawing or at least threatening to withdraw the United States from a host of international agreements, from the 1961 Vienna Convention on Diplomatic Relations’ Optional Protocol Concerning the Compulsory Settlement of Disputes to the 2016 Paris Climate Agreement.

But the fact is that most presidents in recent history have flexed this prodigious muscle, whether the agreement in question was entered into as an Article II treaty, with the advice and consent of two-thirds of the Senate, or a Congressional-Executive Agreement (CEA), made with either ex ante authorization or ex post approval from both houses of Congress. (Since both Article II treaties and CEAs are legally binding treaties under international law, this essay will use the terms “treaty” and “agreement” interchangeably).

Addressing the prospect of unfettered presidential power to withdraw the United States from treaties thus has not been, and should not be, a partisan issue. Indeed, it was a Democratic president, Jimmy Carter, whose unilateral termination of a mutual defense treaty with Taiwan famously catapulted the question before the Supreme Court, which just as famously punted it back. In Goldwater v. Carter, in response to a suit filed by Senator Goldwater and an informal collection of other members of Congress to block President Carter from terminating the treaty, a plurality of the Court declined to resolve the treaty withdrawal issue as a non-justiciable political question. While generally touted as implicitly upholding the President’s powers of unilateral withdrawal, the case does not in fact answer the salient constitutional question: what if Congress had taken some formal action to oppose or place conditions on the termination?

As Justice Jackson has observed, “Presidential powers are not fixed but fluctuate depending upon their disjunction or conjunction with those of Congress.” When it comes to treaty withdrawal (as with other assertions of Presidential power), the President is on firmest ground when acting in accordance with the express or implied will of Congress. As some have argued, if it takes congressional action to enter into a treaty, it should therefore take the same level (or at least some level) of congressional action to exit it. On the other hand, the President has important and legitimate independent powers in the realm of foreign affairs, and at times requires the flexibility to act with greater alacrity than congressional engagement would allow, in order effectively to defend U.S. interests abroad. Resetting the scales means striking the right balance between these competing considerations.

One Size Doesn’t Fit All

The Senate Foreign Relations Committee (SFRC) attempted to solve this problem in the run-up to Goldwater v. Carter by proposing a resolution that would require congressional concurrence to terminate or suspend treaties except in certain enumerated circumstances, such as where material breach or other factors would give rise to a right of termination under international law. But this kind of one-size-fits-all approach is an awkward fit, given that the different underlying legal authorities and policy considerations governing the decision to withdraw from a treaty are shifting and context-specific.

As already noted, in addition to the terms of the agreement itself, including any express withdrawal clauses, relevant factors to consider include the form and implementation of the agreement under domestic law, the subject matter of the agreement, the broader historical context around that subject matter, and the circumstances surrounding the proposed withdrawal. There are arguably too many types of agreements, and too many varied, contextual factors, for this exercise to lend itself to overarching legislation such as that proposed by the SFRC. Indeed, it may create more questions than it resolves, as uncertainty attaches to whether or how the enumerated circumstances would apply.

An Ounce of Prevention: Bake Withdrawal Requirements into Congressional Authorization

As noted above, in order to avoid a constitutional contest between the executive and legislative branches over the question of treaty withdrawal, conditions and requirements for withdrawal should be baked into the congressional authorization for the agreement. Specifically, this could be done through reservations, understandings, and declarations (“RUDs”) in the case of Article II treaties, or by the authorizing or approving legislation in the case of CEAs. In this way the requirements can be tailored to the agreement itself and its wider context.

In some cases, this may end up reflecting the “mirror principle” that Harold Koh has espoused, requiring the same degree of legislative participation in exiting the agreement as required for entry. In others, however, it is possible to imagine that the Executive would need the ability to act more nimbly in exiting the agreement than in entering it, and Congress could allow for that.

In effect, we propose not a “mirror principle”, but rather a “tailored out” principle that can start presumptively with mirroring, but adjusts as appropriate in the specific circumstances presented by the subject matter of the treaty or other relevant factors.

Take the example of extradition: extradition agreements are uniformly entered into as Article II treaties. But while there may be solid constitutional and/or policy reasons (or even requirements) for concluding an extradition agreement as an Article II treaty, those same reasons may not require the consent of two-thirds of the Senate every time the United States seeks to withdraw from one. Extradition necessarily entails solid diplomatic relations and expectations of reciprocal treatment between the two States concerned—conditions that can change rapidly, requiring an equally rapid response. This has been demonstrated recently by the United States’ decision to end its extradition agreement with Hong Kong, pursuant to the Secretary of State’s declaration that Hong Kong can no longer be considered autonomous from China.

In this situation then, the withdrawal clause would not mirror the entering requirement of congressional involvement, but rather could provide for Executive withdrawal either unilaterally or subject to specific conditions that Congress can adapt to the extradition context—in other words, a “tailored out.”  For example, Congress could require as a prerequisite to withdrawal from a specific extradition agreement, a report or “certification” by the Executive of a reasoned explanation for withdrawal, whether due to material changed circumstance in the diplomatic relations with a given State or otherwise. This would still be consistent with allowing the Executive to act with alacrity in the extradition context while providing for some sense of consistency and accountability.

The good news is that Congress has a variety of tools at its disposal, from blessing unilateral withdrawal, to requiring at least prior notification or consultation, to prohibiting withdrawal absent explicit congressional approval, to cutting purse strings in the event of non-compliance. A full assessment of the agreement and the attendant circumstances will be needed in each case in order to determine the optimum level of congressional involvement in any withdrawal. As long as the conditions are plausibly related to the treaty in question and otherwise comport with constitutional requirements, they can be validly enacted and will likely be enforced by the courts.

Addressing Executive Agreements in the Grey Area with Updated Policy Guidance

The Executive also may enter into sole Executive Agreements (“Sole EAs”): agreements that rest on the President’s independent Article II authorities and thereby need no congressional authorization or approval. It is relatively uncontroversial to note that if the Executive has entered into a sole EA, it may unilaterally withdraw from it, but determining whether an agreement is truly a sole EA is not always easy. Some agreements are neither the subject of explicit congressional action nor solely executive but somewhere in between—the Paris Climate Agreement has been described as such. Determining how and whether to carve out a role for Congress in the decision to withdraw from such agreements is a trickier question.

One practical suggestion that takes account of both this “grey area” and the need for overall clarity is updated policy guidance that covers the field, rendering it unnecessary to determine an agreement’s taxonomy before deciding whether to engage Congress on the question of withdrawal.

Specifically, the State Department Foreign Affairs Manual (FAM) sets out the C-175 process for the negotiation and conclusion of international agreements. The FAM currently says very little about the termination or withdrawal process; that section could be updated to spell out conditions and requirements for congressional involvement. It could promote engagement with Congress on questions of withdrawal as a best practice regardless of the form of the agreement in question, particularly for important treaties where the withdrawal decision could benefit from congressional buy-in as a policy matter. Amending the FAM has the additional benefit of being easily done by Executive action, and so could be implemented as a practical means to facilitate congressional engagement in the withdrawal process in the shorter term.

A Pound of Cure: A Proposed Statutory Withdrawal Process for Critical Agreements

A “tailored out” may be a wise course of action to pursue in concluding future agreements, but what of the hundreds of agreements currently on the books? Updating the FAM as outlined above has the benefit of being done easily by an Executive willing to preserve a role for Congress in treaty withdrawal, but it has the detriment of being undone just as easily by an Executive seeking to preserve unilateral authority. Thus, while it may be neither necessary nor feasible to enact legislation dictating withdrawal procedures for all agreements, it could be possible and desirable to legislate a process for withdrawal from certain critical agreements or categories of agreements that requires congressional participation. The procedure could include a “fast-track” provision for some categories of agreements, as Koh has proposed, for circumstances in which the withdrawal decision may need to move more quickly than Congress’s usual processes.

There are various categories of agreements that could qualify for inclusion for various reasons: agreements that implicate core congressional powers such as the regulation of foreign commerce; treaties that protect fundamental human rights; “sticky” agreements that will have continuing domestic effects post-withdrawal due to implementing legislation that will remain on the books absent congressional action; and large multilateral treaties that implicate global commons issues such as climate change or public health.

Granted, drawing these lines will not be easy, particularly given the current minefields in the legislative process. But clarifying how withdrawal should work can be done on the basis of points of principle and, by doing so, will avoid a constitutional collision while promoting consistency. This simple clarification can only increase the effectiveness of the United States’ engagement and credibility with treaty partners, which is arguably more critical now than ever before.

  

About the Author(s)

Ashika Singh

Ashika Singh is a litigation associate at Debevoise and a member of the International Dispute Resolution Group.

Catherine Amirfar

Catherine Amirfar is Co-Chair of the Debevoise’s Public International Law Group.