Rejoining Treaties

*Professor, University of Pennsylvania Law School. I thank Curt Bradley, Sue Biniaz, Arancha Hinojal Oyarbide, and Duncan Hollis for their generous and thoughtful comments on earlier drafts, as well as participants at the Penn Law faculty workshop. For assistance with sources, I thank Gabriela Femenia of the Biddle Law Library at Penn Law. Finally, I thank the editors of the Virginia Law Review, especially Justin Aimonetti, Nicholas Allen, Nicole Gilson, and Amanda Swanson for their careful editing. All views and any errors are my own.Show More

Historical practice supports the conclusion that the President can unilaterally withdraw the United States from treaties which an earlier President joined with the advice and consent of two-thirds of the Senate, at least as long as this withdrawal is consistent with international law. This Article considers a further question that to date is deeply underexplored. This is: does the original Senate resolution of advice and consent to a treaty remain effective even after a President has withdrawn the United States from a treaty? I argue that the answer to this question is yes, except in certain limited circumstances. This answer in turn has important consequences. It means that, as a matter of U.S. domestic law, a future President can rejoin treaties without needing to return to the Senate for advice and consent. The Article concludes by situating this claim within a broader account of the distribution of foreign affairs powers.

Introduction

This Article focuses on a single doctrinal question: what domestic legal process is necessary for the United States to rejoin a treaty from which it has been unilaterally withdrawn by the President? More specifically, may a President seeking to rejoin a treaty do so in reliance of the original resolution of advice and consent passed by the Senate, or must he or she return to the Senate for a second resolution?

This is a question that has received no sustained attention in scholarship or in practice. This itself is a cause for celebration, a reflection of the fact that unilateral treaty withdrawals by Presidents historically have been rare and usually well-founded. It was controversial when President Carter unilaterally withdrew the United States from its mutual defense treaty with Taiwan, but his successor quickly came to recognize the value of normalized relations with mainland China.¹ 1.Compare Carter’s Vow on Taiwan Is Demanded by Reagan, N.Y. Times (Feb. 11, 1979), https://perma.cc/MB97-MVMN (describing Ronald Reagan’s expressed support for a lawsuit challenging this withdrawal in 1979), with Katharine Macdonald & Robert G. Kaiser, Reagan Declares He Seeks Only To Hold to Taiwan Relations Act, Wash. Post (Aug. 26, 1980), https://perma.cc/6FXF-TCHB (describing Reagan’s shift during his campaign to a commitment that he “would not try to fundamentally alter the U.S. relationship with Peking or Taiwan”).Show More

Since coming to office, President Trump has pursued a policy of international disengagement on many fronts. To date, he has focused mainly on rolling back international commitments made by President Obama which the United States had joined not as “treaties” in the constitutional sense of the word, but rather through other constitutional pathways.² 2.E.g., Stephen P. Mulligan, Cong. Research Serv., R44761, Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement 17–23 (2018), https://perma.cc/3Y4K-NB8D (describing President Trump’s withdrawal from the Iran nuclear deal and his announced future withdrawal from the Paris Agreement on climate). For a discussion of the alternative pathways that exist under U.S. domestic law for joining international commitments, see Jean Galbraith, From Treaties to International Commitments: The Changing Landscape of Foreign Relations Law, 84 U. Chi. L. Rev. 1675, 1684–97 (2017).Show More Yet he and his administration have also shown a willingness to terminate treaties—legal instruments that received the advice and consent of two-thirds of the Senate and thus commanded, at least at one point in history, strong bipartisan support.³ 3.Here and throughout this Article, I use “treaty” and “treaties” to refer to international agreements for which the advice and consent of two-thirds of the Senate is being sought or has been obtained. See Restatement (Fourth) of Foreign Relations Law pt. 3, intro. note (Am. Law Inst. 2018) (“In U.S. domestic law, . . . the term ‘treaties’ refers . . . to international agreements concluded by the President with the advice and consent of two-thirds of the Senate.”).Show More Specifically:

• News reporting early in the Trump administration indicated that it planned to conduct a widespread review of all multi­lateral treaties other than those “directly related to national security, extradition, or international trade” in order to assess “whether the United States should continue to be a party . . . .”⁴ 4.Read the Trump Administration’s Draft of the Executive Order on Treaties, Wash. Post, https://perma.cc/B555-4VXG (posting a leaked draft of an executive order under consideration that contained this language); see also Max Fisher, Trump Prepares Orders Aiming at Global Funding and Treaties, N.Y. Times (Jan. 25, 2017), https://perma.cc/REE9-GPQ9 (reporting on the draft executive order).Show More
• In October 2018, the Trump administration announced the immediate or planned U.S. withdrawal from three treaties: the Optional Protocol to the Vienna Convention on Diplomatic Relations concerning the Compulsory Settlement of Disputes; the Treaty of Amity, Economic Relations, and Consular Rights with Iran; and the Intermediate-Range Nuclear Forces (INF) Treaty with Russia and other former Soviet Republics.⁵ 5.Contemporary Practice of the United States Relating to International Law, Trump Administration Announces Withdrawal from Four International Agreements, 113 Am. J. Int’l L. 132, 132 (Jean Galbraith ed., 2019); Contemporary Practice of the United States Relating to International Law, United States Initiates Withdrawal from Intermediate-Range Nuclear Forces Treaty, 113 Am. J. Int’l L. 631, 632 n.5 (Jean Galbraith ed., 2019).Show More
• In remarks related to two of these withdrawals, then-National Security Advisor John Bolton signaled that the Trump administration would more generally consider withdrawing from treaties or treaty provisions in which the United States had consented to the jurisdiction of the International Court of Justice.⁶ 6.Press Briefing by Press Secretary Sarah Sanders, Small Business Administrator Linda McMahon, and National Security Advisor, White House (Oct. 3, 2018), https://perma.cc/D99Y-X4AW.Show More
• President Trump has repeatedly expressed doubts about NATO and has indicated some interest in withdrawing from the North Atlantic Treaty which underlies it.⁷ 7.See, e.g., The President’s News Conference with Prime Minister Theresa May of the United Kingdom in Buckinghamshire, United Kingdom, 2018, Daily Comp. Pres. Doc. No. DCPD-201800483, at 6 (July 13, 2018) (“NATO is really there for Europe, much more so than us. It helps Europe whether—no matter what our military people or your military people say, it helps Europe more than it helps us.”); Julian E. Barnes & Helene Cooper, Trump Discussed Pulling U.S. from NATO, Aides Say Amid New Concerns over Russia, N.Y. Times (Jan. 14, 2019), https://perma.cc/S8TP-59V3 (reporting that President Trump has privately expressed interest in withdrawing from NATO on multiple occasions).Show More

As a matter of U.S. domestic law, the executive branch considers itself authorized to withdraw from treaties without receiving explicit approval to do so from Congress or the Senate, at least provided that the withdrawal is consistent with international law. Although his position has never received the explicit blessing of the U.S. Supreme Court, it is now well-grounded in executive branch practice and it has been accepted both by the Restatement (Third) and the recent Restatement (Fourth) of Foreign Relations Law.⁸ 8.Restatement (Third) of Foreign Relations Law § 339 (Am. Law Inst. 1987); Restatement (Fourth) of Foreign Relations Law § 313 (Am. Law Inst. 2018). In Goldwater v. Carter, the Supreme Court deemed nonjusticiable the question of whether President Carter could terminate the mutual defense treaty with Taiwan in a manner consistent with its termination clause but without approval from two-thirds of the Senate or from Congress. 444 U.S. 996, 1002 (1979) (plurality opinion) (finding that the case posed a political question); id. at 997 (Powell, J., concurring in judgment) (viewing the case to be unripe).Show More The prospect of landmark treaties being terminated at the whim of President Trump has motivated some scholarly reexamination of this issue.⁹ 9.E.g., Harold Hongju Koh, Presidential Power to Terminate International Agreements, 128 Yale L.J. F. 432, 435 (2018).Show More But requiring the explicit approval of Congress or two-thirds of the Senate for treaty withdrawal raises its own normative concerns and in any event is an uphill argument in light of past practice. And unless and until such a claim succeeds with the courts (or Congress explicitly legislates to block termination), President Trump and his successors will continue to possess the putative power of treaty withdrawal.

This Article therefore focuses on the issue of rejoining treaties. The more polarized the office of the Presidency becomes—and the more it is held by individuals who act based on caprice rather than expertise—the greater the likelihood there is that one President will withdraw from treaties that a later President will wish to rejoin. Such rejoining would have to be not only feasible at the international level (i.e., consistent with international law and receiving any necessary approval from treaty partners), but also legal as a matter of domestic law.

This Article is not the first piece to consider the issue of the process for rejoining treaties. Back in 1986, for example, shortly after President Reagan withdrew the United States from the general jurisdiction of the International Court of Justice, a student comment on the subject stated without analysis that rejoining “would be contingent on the advice and consent of the Senate.”¹⁰ 10.Douglas J. Ende, Comment, Reaccepting the Compulsory Jurisdiction of the International Court of Justice: A Proposal for a New United States Declaration, 61 Wash. L. Rev. 1145, 1162 n.117 (1986).Show More More recently and more significantly, a former leading practitioner for the State Department in the climate context, Sue Biniaz, sketched out some thoughts about the legal process for rejoining in a conference thought paper. Raising the possibility that President Trump might withdraw from the U.N. Framework Convention on Climate Change, she floated the idea that “a new Administration [could] take the position that the Senate’s original resolution of advice and consent had not expired and, as such, the President was free to [resubmit] an instrument of ratification.”¹¹ 11.Susan Biniaz, U.S. Intent to Withdraw from the Paris Agreement: A Round-up of Interesting Legal Issues that Either Arose or Might Have Arisen 8 (unpublished paper from the 2017 Duke-Yale Foreign Relations Law Roundtable, on file with author); see also id. at 8–9 (elaborating on this point).Show More Yet while the idea of rejoining treaties is not new to this paper, it is a subject that to date has not received sustained scholarly treatment, unlike the issue of treaty withdrawal.

There are three ways by which the President might rejoin a treaty as a matter of domestic law. One obviously lawful way would be to go back to the Senate for another round of advice and consent by a supermajority. But getting treaties through the Senate has always been challenging and is now even harder than it used to be, due both to increased partisanship and to changed procedural norms. Indeed, from 2001 through 2010, the Senate advised and consented to only one treaty where there were any recorded dissenting votes.¹² 12.Jean Galbraith, Prospective Advice and Consent, 37 Yale J. Int’l L. 247, 287 (2012).Show More To require another round of Senate advice and consent to rejoin treaties would cause such rejoining to range from challenging to effectively impossible.

A second option would be to rejoin the international agreement not as a treaty but rather through some other domestic process. U.S. constitutional practice has developed several domestic pathways distinct from that set out in the Treaty Clause by which the United States can join international agreements.¹³ 13.For an overview of these kinds of agreements, see Galbraith, supra note 2, at 1684–97.Show More Some important agreements are made by the executive branch without specific legislative approval, such as President Obama’s decision to join the United States to the Paris Agreement on climate.¹⁴ 14.See id. at 1731–43 (analyzing the process by which the United States joined the Paris Agreement and discussing the extent to which this process contained constraints on executive power).Show More Others, such as most major trade agreements, receive specific approval from Congress.¹⁵ 15.Id. at 1703, 1727 (noting that the success of this process relies heavily on pre-existing legislation that ensures an up-and-down congressional vote for trade agreements).Show More There is considerable uncertainty about the extent to which the uses of these other pathways are constitutionally permissible. Accordingly, these alternative pathways might be available as a matter of law for some or even all international agreements which the United States initially joined as treaties but later withdrew from based on unilateral presidential action.¹⁶ 16.This is a complex issue even for entirely new international agreements and would be even more complicated with respect to the rejoining of international agreements previously made as treaties. In those cases, it would present the further question of whether the initial treatment of the agreement as a “treaty” might limit the availability of other options as a matter of law.Show More Even if lawful, however, rebranding a former treaty as an agreement that could be joined in a manner akin to the Paris Agreement rather than as an Article II treaty would likely raise procedural concerns within the State Department, face congressional pushback, and potentially complicate the agreement’s implementation. Going to Congress for statutory approval prior to rejoining would reduce concerns about legality and implementation. But obtaining such approval would likely prove difficult as a matter of legislative process, particularly if the shift from treaty to congressional-executive agreement triggered resistance from the Senate Foreign Relations Committee.

The third option, whose legality and availability are the focus of this Article, would be to treat the Senate’s pre-existing resolution of advice and consent as still operative. The President could therefore rejoin the international agreement as a treaty, but without having to go again to the Senate for advice and consent. This approach would presumptively put rejoining on equal footing with withdrawing in terms of the domestic legal process. The presumption would be overcome, however, if rejoining would be inconsistent with the language of the original resolution, with any modifications to this resolution made by two-thirds of the Senate, or with an intervening congressional statute. The President’s ability to rejoin the treaty would also be contingent on this being an available option at the international level.

The doctrinal basis for treating original Senate resolutions of advice and consent as still operative rests on these resolutions’ text, on broader constitutional practice, and on structural principles. As a textual matter, while the Senate often puts substantial conditions into its resolutions of advice and consent, it typically does not include language that renders them ineffective for purposes of rejoining. As a matter of constitutional practice, while there is no specific practice on point for the issue of rejoining, two related strands suggest that the original resolutions should be taken to remain operative. First, these resolutions are already understood to remain operative well after the end of the Senate session in which they are passed, as the executive branch often does not ratify treaties until years after the Senate’s advice and consent has been given. Second, with respect to international agreements other than treaties that rely on some form of congressional authorization, the executive branch has used pre-existing authorizations as a basis for rejoining such agreements following withdrawal. In 2003, for example, President George W. Bush rejoined the United States to UNESCO (from which President Reagan had withdrawn the United States) in apparent reliance on the statutory authorization that has justified the initial U.S. entry into UNESCO many years earlier.¹⁷ 17.See Curtis A. Bradley, Exiting Congressional-Executive Agreements, 67 Duke L.J. 1615, 1639 (2018) (describing the withdrawal from UNESCO by the Reagan administration and its rejoining by the George W. Bush administration).Show More Finally, as a structural principle, treating original Senate resolutions of advice and consent as remaining effective prevents the President from being singlehandedly able, through withdrawal, to undo the actions of a coordinate branch. It is one thing for the President to be able to withdraw the United States unilaterally from a treaty—after all, the President has unilateral discretion over whether to ratify the treaty. It is quite another thing for the President thereby to effectively erase a Senate resolution, unless the Senate or Congress expressly authorized this result.

The claim that a President can rely on the initial resolution of advice and consent to rejoin a treaty fits into a broader framework for the distribution of foreign affairs powers. Foreign relations law rests in an uneasy space between contrasts—foreign and domestic, congressional and presidential, flexible and constrained. A long-standing strand of scholarship raises concerns about the rise of presidential power and about the implications of this rise for U.S. international engagement.¹⁸ 18.For a recent and important piece in this vein, see Curtis A. Bradley & Jack L. Goldsmith, Presidential Control Over International Law, 131 Harv. L. Rev. 1201 (2018).Show More The approach advocated for here in some ways both advances presidential power and brings uncertainty to international law. It advances presidential power by advocating an understanding of Senate resolutions that gives the President the power to treat them as ongoing authorizations, and it brings uncertainty by creating a pathway whereby presidents can zig-zag their way through treaties, if they so choose. In other ways, however, the approach advocated for here both serves as a check on presidential power and a mechanism for continuing international engagement on the part of the United States. For a legal framework in which the President can unilaterally withdraw from a treaty but not unilaterally rejoin it would be a legal framework that puts a heavy thumb on the scale against international engagement and that limits rebalancing by a future President. The approach advocated for here, by contrast, relies on a broader, developing alignment between U.S. foreign relations law and U.S. administrative law. In both cases, the executive branch wields considerable power, but in both cases the decisions of one administration can be revisited by another administration and thus are subject to the long-term checks of democracy.

In terms of structure, this Article has three parts. Part I is descriptive, identifying existing law and practice with respect to treaty formation and withdrawal. Part II is the core of the Article. It elaborates on and defends the doctrinal argument sketched above with respect to treaty rejoining. It argues that Senate resolutions of advice and consent can constitutionally authorize rejoining and, as a matter of their interpretation, should presumptively be read to do so. It also discusses limitations stemming from domestic law, international law, and international relations that might prevent rejoining with respect to particular treaties. Finally, it assesses the practical effect of a presidential power to rejoin treaties and emphasizes that this power is much more likely to be workable with respect to multilateral treaties which are open broadly to membership than with respect to bilateral treaties, which cannot be re-established without the consent of the other nation. Part III situates the doctrinal argument made in Part II within a broader theory of the constitutional distribution of foreign affairs powers.

1. * Professor, University of Pennsylvania Law School. I thank Curt Bradley, Sue Biniaz, Arancha Hinojal Oyarbide, and Duncan Hollis for their generous and thoughtful comments on earlier drafts, as well as participants at the Penn Law faculty workshop. For assistance with sources, I thank Gabriela Femenia of the Biddle Law Library at Penn Law. Finally, I thank the editors of the Virginia Law Review, especially Justin Aimonetti, Nicholas Allen, Nicole Gilson, and Amanda Swanson for their careful editing. All views and any errors are my own. ↑

2. Compare Carter’s Vow on Taiwan Is Demanded by Reagan, N.Y. Times (Feb. 11, 1979), https://perma.cc/MB97-MVMN (describing Ronald Reagan’s expressed support for a lawsuit challenging this withdrawal in 1979), with Katharine Macdonald & Robert G. Kaiser, Reagan Declares He Seeks Only To Hold to Taiwan Relations Act, Wash. Post (Aug. 26, 1980), https://perma.cc/6FXF-TCHB (describing Reagan’s shift during his campaign to a commitment that he “would not try to fundamentally alter the U.S. relationship with Peking or Taiwan”). ↑
3. E.g., Stephen P. Mulligan, Cong. Research Serv., R44761, Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement 17–23 (2018), https://perma.cc/3Y4K-NB8D (describing President Trump’s withdrawal from the Iran nuclear deal and his announced future withdrawal from the Paris Agreement on climate). For a discussion of the alternative pathways that exist under U.S. domestic law for joining international commitments, see Jean Galbraith, From Treaties to International Commitments: The Changing Landscape of Foreign Relations Law, 84 U. Chi. L. Rev. 1675, 1684–97 (2017). ↑
4. Here and throughout this Article, I use “treaty” and “treaties” to refer to international agreements for which the advice and consent of two-thirds of the Senate is being sought or has been obtained. See Restatement (Fourth) of Foreign Relations Law pt. 3, intro. note (Am. Law Inst. 2018) (“In U.S. domestic law, . . . the term ‘treaties’ refers . . . to international agreements concluded by the President with the advice and consent of two-thirds of the Senate.”). ↑
5. Read the Trump Administration’s Draft of the Executive Order on Treaties, Wash. Post, https://perma.cc/B555-4VXG (posting a leaked draft of an executive order under consideration that contained this language); see also Max Fisher, Trump Prepares Orders Aiming at Global Funding and Treaties, N.Y. Times (Jan. 25, 2017), https://perma.cc/REE9-GPQ9 (reporting on the draft executive order). ↑
6. Contemporary Practice of the United States Relating to International Law, Trump Administration Announces Withdrawal from Four International Agreements, 113 Am. J. Int’l L. 132, 132 (Jean Galbraith ed., 2019); Contemporary Practice of the United States Relating to International Law, United States Initiates Withdrawal from Intermediate-Range Nuclear Forces Treaty, 113 Am. J. Int’l L. 631, 632 n.5 (Jean Galbraith ed., 2019). ↑
7. Press Briefing by Press Secretary Sarah Sanders, Small Business Administrator Linda McMahon, and National Security Advisor, White House (Oct. 3, 2018), https://perma.cc/D99Y-X4AW. ↑
8. See, e.g., The President’s News Conference with Prime Minister Theresa May of the United Kingdom in Buckinghamshire, United Kingdom, 2018, Daily Comp. Pres. Doc. No. DCPD-201800483, at 6 (July 13, 2018) (“NATO is really there for Europe, much more so than us. It helps Europe whether—no matter what our military people or your military people say, it helps Europe more than it helps us.”); Julian E. Barnes & Helene Cooper, Trump Discussed Pulling U.S. from NATO, Aides Say Amid New Concerns over Russia, N.Y. Times (Jan. 14, 2019), https://perma.cc/S8TP-59V3 (reporting that President Trump has privately expressed interest in withdrawing from NATO on multiple occasions). ↑
9. Restatement (Third) of Foreign Relations Law § 339 (Am. Law Inst. 1987); Restatement (Fourth) of Foreign Relations Law § 313 (Am. Law Inst. 2018). In Goldwater v. Carter, the Supreme Court deemed nonjusticiable the question of whether President Carter could terminate the mutual defense treaty with Taiwan in a manner consistent with its termination clause but without approval from two-thirds of the Senate or from Congress. 444 U.S. 996, 1002 (1979) (plurality opinion) (finding that the case posed a political question); id. at 997 (Powell, J., concurring in judgment) (viewing the case to be unripe). ↑
10. E.g., Harold Hongju Koh, Presidential Power to Terminate International Agreements, 128 Yale L.J. F. 432, 435 (2018). ↑
11. Douglas J. Ende, Comment, Reaccepting the Compulsory Jurisdiction of the International Court of Justice: A Proposal for a New United States Declaration, 61 Wash. L. Rev. 1145, 1162 n.117 (1986). ↑
12. Susan Biniaz, U.S. Intent to Withdraw from the Paris Agreement: A Round-up of Interesting Legal Issues that Either Arose or Might Have Arisen 8 (unpublished paper from the 2017 Duke-Yale Foreign Relations Law Roundtable, on file with author); see also id. at 8–9 (elaborating on this point). ↑
13. Jean Galbraith, Prospective Advice and Consent, 37 Yale J. Int’l L. 247, 287 (2012). ↑
14. For an overview of these kinds of agreements, see Galbraith, supra note 2, at 1684–97. ↑
15. See id. at 1731–43 (analyzing the process by which the United States joined the Paris Agreement and discussing the extent to which this process contained constraints on executive power). ↑
16. Id. at 1703, 1727 (noting that the success of this process relies heavily on pre-existing legislation that ensures an up-and-down congressional vote for trade agreements). ↑
17. This is a complex issue even for entirely new international agreements and would be even more complicated with respect to the rejoining of international agreements previously made as treaties. In those cases, it would present the further question of whether the initial treatment of the agreement as a “treaty” might limit the availability of other options as a matter of law. ↑
18. See Curtis A. Bradley, Exiting Congressional-Executive Agreements, 67 Duke L.J. 1615, 1639 (2018) (describing the withdrawal from UNESCO by the Reagan administration and its rejoining by the George W. Bush administration). ↑
19. For a recent and important piece in this vein, see Curtis A. Bradley & Jack L. Goldsmith, Presidential Control Over International Law, 131 Harv. L. Rev. 1201 (2018). ↑