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Published online by Cambridge University Press: 14 January 2019
In October of 2018, the Trump administration announced that the United States would withdraw from four international agreements. On October 3, 2018, Secretary of State Mike Pompeo announced that the United States would withdraw from the Treaty of Amity, Economic Relations, and Consular Rights with Iran. Later that day, National Security Advisor John Bolton announced that the United States was also withdrawing from the Optional Protocol to the 1961 Vienna Convention on Diplomatic Relations (VCDR). Both withdrawals were triggered by pending International Court of Justice (ICJ) cases grounded in these treaties that were recently brought against the United States. Two weeks later, in an escalation of the ongoing trade dispute with China, the United States gave notice of withdrawal from the Universal Postal Union (UPU), the international body charged with overseeing the international mailing system. Finally, on October 22, 2018, President Trump announced that the United States would be terminating the Intermediate-Range Nuclear Forces (INF) Treaty with Russia. Unlike other withdrawals undertaken by the Trump administration, this latest round involved three Article II treaties to which the Senate had provided its advice and consent. In addition, the international commitments withdrawn from in this round were long-standing ones, with U.S. participation in the UPU going back as far as 1875.
1 For further discussion of this ICJ case and the provisional measures ordered in it, see generally Galbraith, Jean, Contemporary Practice of the United States, 113 AJIL 174 (2019)Google Scholar.
2 U.S. Dep't of State Press Briefing, Remarks to the Media (Oct. 3, 2018), at https://www.state.gov/secretary/remarks/2018/10/286417.htm [https://perma.cc/2V8J-3FPS].
3 Treaty of Amity, Economic Relations, and Consular Rights, Iran-U.S., Aug. 15, 1955, 8 UST 899.
4 Id. Art. XXI(2).
5 Id. Art. XXIII(3).
6 While “[t]he Constitution provides that the President can make treaties with the advice and consent of two-thirds of the Senate, … it says nothing specific about what domestic actor or actors have the power to withdraw the United States from treaties.” Galbraith, Jean, The President's Power to Withdraw the United States from International Agreements at Present and in the Future, 111 AJIL Unbound 445, 446 (2018)Google Scholar. Since the 1930s, presidents have unilaterally withdrawn the United States from numerous Article II treaties, including President Carter's high-profile decision to withdraw the United States from its mutual defense treaty with Taiwan in the late 1970s. See generally Bradley, Curtis A., Treaty Termination and Historical Gloss, 92 Tex. L. Rev. 773 (2014)Google Scholar (tracing the historical development of the constitutional understanding that the president has the unilateral authority to terminate Article II treaties). Both Restatement (Third) of Foreign Relations Law and Restatement (Fourth) of Foreign Relations Law consider the president to have the authority to withdraw the United States from Article II treaties where this withdrawal is permitted under international law. Restatement (Third) of Foreign Relations Law § 339 (1986); Restatement (Fourth) of Foreign Relations Law § 313 (2018).
7 In Goldwater v. Carter, the Supreme Court concluded that it lacked jurisdiction to address the constitutionality of President Carter's withdrawal from the mutual defense treaty with Taiwan. 444 U.S. 996 (1979). For a recent argument that the president does not have the unilateral authority to terminate some Article II treaties even where permitted to do so by international law, see Koh, Harold Hongju, Presidential Power to Terminate International Agreements, 128 Yale L. J. F. 432, 454 (2018)Google Scholar (arguing that “U.S. withdrawal from a long-standing treaty or international organization … should not become effective without congressional involvement”).
8 Galbraith, supra note 1, at __ (noting three prior ICJ cases grounded in the Treaty of Amity, two of which were brought by Iran); see also Chimène Keitner, What Are the Consequences of the Trump Administration's Recent Treaty Withdrawals?, Just Security (Oct. 17, 2018), at https://www.justsecurity.org/61101/consequences-trump-administrations-treaty-withdrawals (describing the Treaty of Amity as “defunct de facto for decades”); John Bellinger, Thoughts on the ICJ's Decision in Iran v. United States and the Trump Administration's Treaty Withdrawals, Lawfare (Oct. 5, 2018), at https://www.lawfareblog.com/thoughts-icjs-decision-iran-v-united-states-and-trump-administrations-treaty-withdrawals (calling the U.S. withdrawal a “prudent” response to Iran's use of the Treaty of Amity “as an instrument of lawfare”).
9 White House Press Release, Press Briefing by Press Secretary Sarah Sanders, Small Business Administrator Linda McMahon, and National Security Advisor (Oct. 3, 2018), at https://www.whitehouse.gov/briefings-statements/press-briefing-press-secretary-sarah-sanders-small-business-administrator-linda-mcmahon-national-security-advisor-100318/ [https://perma.cc/CTX6-W8N5] [hereinafter Bolton Briefing]. For further discussion of this ICJ case, see generally Galbraith, Jean, Contemporary Practice of the United States, 113 AJIL 174 (2019)Google Scholar.
10 Vienna Convention on Diplomatic Relations and Optional Protocol on Disputes, Art. 1, Apr. 18, 1961, 23 UST 3227, 500 UNTS 95 [hereinafter VCDR & Op-Pro].
11 See id. Several more years would pass before the United States passed legislation consistent with the VCDR with respect to diplomatic immunity. See Marmon, William F. Jr., Note, Diplomatic Relations Act of 1978 and Its Consequences, 19 Va. J. Int'l L. 131, 139 (1978)Google Scholar (observing that the preexisting statutory scheme, unlike the VCDR, “did not distinguish among different classes of diplomatic staff for purposes of granting immunity”).
12 Bolton Briefing, supra note 9.
13 Id.
14 See generally VCDR & Op. Pro, supra note 10.
15 Vienna Convention on the Law of Treaties, Art. 56, 1155 UNTS 331, 8 ILM 679 (1969) [hereinafter VCLT]. The VCLT includes other grounds for withdrawal that do not appear applicable here, including material breach under specified circumstances, see id. Art. 60, impossibility of performance, see id. Art. 61, and fundamental change of circumstances, see id. Art. 62. See also Gabčíkovo-Nagymaros Project (Hung. v. Slov.), 1997 ICJ Rep. 7, 65 (Sept. 25) (concluding that “the stability of treaty relations requires that the plea of fundamental change of circumstances be applied only in exceptional cases”). The United States is not a party to the VCLT but regards many of its provisions as reflective of customary international law. See U.S. Dep't of State, Vienna Convention on the Law of Treaties, at https://www.state.gov/s/l/treaty/faqs/70139.htm [https://perma.cc/5R7Q-ABQF].
16 Christakis, Theodore, Article 56, in 2 The Vienna Conventions on the Law of Treaties: A Commentary 1251, 1257 (Corten, Olivier & Klein, Pierre eds., 2011)Google Scholar.
17 Helfer, Laurence R., Terminating Treaties, in The Oxford Guide to Treaties 634, 638 (Hollis, Duncan ed., 2012)Google Scholar (quoting Waldock's 1963 report to the International Law Commission and noting the tension between his position and the approach previously recommended by Gerald Fitzmaurice); see also Christakis, supra note 16, at 1273 (noting that Waldock's approach on this issue “provoked a sharp reaction from some members of the ILC”).
18 Fisheries Jurisdiction (U.K. v. Iceland), Judgment, 1973 ICJ Rep. 3, at para. 29 (Feb. 2), at https://www.icj-cij.org/files/case-related/55/055-19730202-JUD-01-00-EN.pdf.
19 United Nations, Optional Protocol to the Vienna Convention on Diplomatic Relations, Concerning the Compulsory Settlement of Disputes, at https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY& mtdsg_no=III-5&chapter=3&clang=_en (reporting the U.S. communication of October 12, 2018).
20 Letter from Condoleezza Rice, U.S. Secretary of State, to Kofi Annan, UN Secretary-General (Mar. 7, 2005), available at https://www.state.gov/documents/organization/87288.pdf [https://perma.cc/2RS9-DVZL].
21 See Restatement (Fourth) of Foreign Relations Law § 313 (“[a]ccording to established practice, the President has the authority to act on behalf of the United States 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”); Bradley, supra note 6, at 824 n. 292 (stating that “if international law causes a treaty to remain in force, then the U.S. Constitution may give the treaty a domestic-law status that cannot be terminated unilaterally by the President” and noting the tension between this point and the 2005 withdrawal from the Optional Protocol to the Vienna Convention on Consular Relations).
22 White House Press Release, Statement from the Press Secretary (Oct. 17, 2018), at https://www.whitehouse.gov/briefings-statements/statement-press-secretary-38 [https://perma.cc/82Q7-VCVK] [hereinafter White House UPU Press Release].
23 Universal Postal Union, The UPU, http://www.upu.int/en/the-upu/the-upu.html (last visited Nov. 4, 2018).
24 See id.
25 See Universal Postal Union, About Terminal Dues and Transit Charges, at http://www.upu.int/en/activities/terminal-dues-and-transit-charges/about-terminal-dues-and-transit-charges.html.
26 Id.; see also Eliot Kim, Withdrawal from the Universal Postal Union: A Guide for the Perplexed, Lawfare (Oct. 31, 2018), at https://www.lawfareblog.com/withdrawal-universal-postal-union-guide-perplexed.
27 Kim, supra note 26. Goods from Chinese companies account for approximately 60% of all packages shipped into the United States. Glenn Thrush, Trump Opens New Front in His Battle with China: International Shipping, N.Y. Times (Oct. 17, 2018), at https://www.nytimes.com/2018/10/17/us/politics/trump-china-shipping.html.
28 Kim, supra note 26 (citing a report from the Postal Regulatory Commission).
29 White House Press Release, Statement from the Press Secretary (Oct. 17, 2018), at https://www.whitehouse.gov/briefings-statements/statement-press-secretary-38 [https://perma.cc/82Q7-VCVK] [hereinafter White House UPU Press Release].
30 Universal Postal Union Press Release, Statement on the Decision of the United States of America to Withdraw from the Universal Postal Union Treaties (Oct. 17, 2018), at http://news.upu.int/no_cache/nd/statement-on-the-decision-of-the-united-states-of-america-to-withdraw-from-the-universal-postal-union-treaties.
31 Chinese Foreign Ministry Press Release, Foreign Ministry Spokesperson Lu Kang's Regular Press Conference on October 18, 2018 (Oct. 18, 2018), at https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/t1605226.shtml.
32 Danielle Paquette, Trump Ditches 144-Year-Old Postal Pact that Boosts Chinese Retailers, Wash. Post (Oct. 17, 2018), at https://www.washingtonpost.com/business/economy/trump-ditches-144-year-old-postal-pact-that-boosts-chinese-retailers/2018/10/17/88aefea6-d234-11e8-8c22-fa2ef74bd6d6_story.html?utm_term=.d320f10491d6.
33 Thrush, supra note 27.
34 Fourth Additional Protocol to the Constitution of the UPU, Art. III (1989) (amending Article 12 of the UPU Constitution).
35 Universal Postal Union Press Release, Statement of UPU Deputy General Pascal Clivaz on the Decision by the Government of the United States of America to Withdraw from the Universal Postal Union Treaties (Oct. 18, 2018), at http://news.upu.int/no_cache/nd/statement-of-upu-deputy-director-general-pascal-clivaz-on-the-decision-by-the-government-of-the-united-states-of-america-to-withdraw-from-the-universal-postal-union-treaties (observing that notice was received on October 17, 2018).
36 Treaty Concerning the Formation of a General Postal Union, 19 Stat. 577 (1874).
37 Rebecca Bratspies, Universal Postal Union, Oxford Pub. Int'l L., at http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e569.
38 For the earliest such delegation, see Act of Feb. 20, 1792, ch. 7, § 26, 1 Stat. 232, 239 (authorizing the postmaster general to enter into agreements with international counterparts for mail delivery).
39 At the time, the operative statutory delegation came from An Act to Revise, Consolidate, and Amend the Statutes Relating to the Post Office Department, 17 Stat. 283 (1872) (providing that “the Postmaster-General, by and with the advice and consent of the President, may negotiate and conclude postal treaties or conventions, and may reduce or increase the rates of postage on mail-matter conveyed between the United States and foreign countries”). The postmaster general of the United States duly “ratified and approved” the Treaty of Berne on March 8, 1875, and the president “approve[d]” the treaty on the same day. Treaty Concerning the Formation of a General Postal Union, 19 Stat. 577, 588 (1874). This use of an ex ante congressional-executive agreement rather than an Article II treaty would later be cited as historical practice justifying the broader use of congressional-executive agreements as a substitute for Article II treaties. E.g., McDougal, Myres S. & Lans, Asher, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy: I, 54 Yale L. J. 181, 344 (1945)Google Scholar (“the United States has remained a member of the Universal Postal Union since 1875 [and i]n [that] case also, the agreement was approved only by the President, pursuant to authority contained in the postal statutes”); An Act to Provide for the Participation of the United States in the International Monetary Fund and the International Bank for Reconstruction and Development: Hearing on H.R. 3314 Before the S. Comm. on Banking & Currency, 79th Cong. 547 (1945) (“Reference has been made above to United States membership in the Universal Postal Union pursuant to specific authorization by the Congress to the executive to ‘negotiate and conclude postal treaties or conventions’ and to ‘reduce or increase the rates of postage on mail matter conveyed between the United States and foreign countries.’”) (citing the Act of June 8, 1872).
40 Postal Accountability and Enhancement Act, Pub. L. No. 109-435, at §405, 120 Stat. 3198, 3230 (2006) (codified at 39 U.S.C. § 407) (further setting out objectives that the executive branch should pursue in its negotiations).
41 See Stephen P. Mulligan, Cong. Research Serv., R44761, Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement 7 (2018) (observing that “[f]or congressional-executive agreements that Congress has preauthorized by statute (called ex ante agreements), Presidents sometimes have unilaterally terminated the agreement without objection”). The statute does expressly indicate that the secretary of state has power to “renegotiate” postal treaties as well as to make them in the first place. Pub. L. No. 109-435, at § 405; 120 Stat. at 3231.
42 Donald J. Trump, Remarks in an Exchange with Reporters in Elko, Nevada, 2018 Daily Comp. Pres. Doc. No. 718, at 3 (Oct. 20).
43 Id.
44 Id. at 4–5.
45 Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Elimination of Their Intermediate-Range and Shorter-Range Missiles, U.S.-U.S.S.R., Dec. 8, 1987, 1657 UNTS 2.
46 Hilary Hurd & Elena Chachko, U.S. Withdrawal from the INF Treaty: The Facts and the Law, Lawfare (Oct. 25, 2018), at https://www.lawfareblog.com/us-withdrawal-inf-treaty-facts-and-law.
47 Id.
48 John Hudson & Paul Sonne, Bolton Pushes Trump Administration to Withdraw from Landmark Arms Treaty, Wash. Post (Oct. 19, 2018), at https://www.washingtonpost.com/world/national-security/bolton-pushes-trump-administration-to-withdraw-from-landmark-arms-treaty/2018/10/19/f0bb8531-e7ce-4a34-b7ba-558f8b068dc5_story.html?utm_term=.c7ca9ac48f46.
49 U.S. Dep't of State Press Release, Bureau of Arms Control, Verification and Compliance Factsheet INF Treaty: At a Glance (Dec. 8, 2017), at https://www.state.gov/t/avc/rls/2017/276361.htm [https://perma.cc/H9HQ-JW6A].
50 U.S. Dep't of State, Adherence to and Compliance with Arms Control, Nonproliferation and Disarmament Agreements and Commitments 8 (2014), available at https://www.state.gov/documents/organization/230108.pdf [https://perma.cc/4R6D-6QL2].
51 Hurd & Chachko, supra note 46.
52 Pub. L. No. 115-232, § 1243(a)(2), __ Stat. __ (2018).
53 Id. § 1244, __ Stat. at __; cf. VCLT, supra note 15, Art. 60 (setting out the conditions under international law for suspension of treaty obligations in response to the material breach by another party).
54 David E. Sanger & William J. Broad, U.S. to Tell Russia It Is Leaving Landmark I.N.F. Treaty, N.Y. Times (Oct. 19, 2018), at https://www.nytimes.com/2018/10/19/us/politics/russia-nuclear-arms-treaty-trump-administration.html.
55 Hurd & Chachko, supra note 46.
56 INF Treaty, supra note 45, Art. XV.
57 Julian Borger & Andrew Roth, EU Warns Trump of Nuclear Arms Race Risk after INF Withdrawal Move, Guardian (Oct. 23, 2018), at https://www.theguardian.com/world/2018/oct/22/eu-us-nuclear-arms-race-inf-treaty-bolton-moscow (describing responses from European leaders); Julian Borger, European Diplomats Mount Last-Ditch Effort to Stop United States Scrapping INF Treaty, Guardian (Nov. 18, 2018), at https://www.theguardian.com/world/2018/nov/18/inf-treaty-european-diplomats-us-russia (describing European efforts to try to ward off the U.S. withdrawal).
58 U.S. Dep't of State Press Briefing, Press Availability at NATO Headquarters (Dec. 4, 2018), at https://www.state.gov/secretary/remarks/2018/12/287873.htm [https://perma.cc/4FEG-PC6A] [hereinafter Pompeo Briefing].
59 Id. (“I will tell you, our European partners approve that extra time [of sixty days]”).
60 NATO Press Release, Statement on the Intermediate-Range Nuclear Forces (INF) Treaty (Dec. 4, 2018), at https://www.nato.int/cps/en/natohq/official_texts_161122.htm?selectedLocale=en.
61 Pompeo Briefing, supra note 58 (“stating that “[t]he six-month period will begin to run 60 days from now” while also noting that “we would welcome a Russian change of heart … [and] over the next 60 days they have every chance to do that”).
62 See Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States, 111 AJIL 1036 (2017)Google Scholar (discussing the announced U.S. withdrawal from the Paris Agreement); Galbraith, Jean, Contemporary Practice of the United States, 112 AJIL 107 (2018)Google Scholar (discussing the announced U.S. withdrawal from UNESCO); 112 AJIL 311 (2018) (discussing the cessation of U.S. participation in the Global Compact on Migration); 112 AJIL 315, 320 n. 42 (2018) (noting the decision not to seek ratification of the Trans-Pacific Partnership); 112 AJIL 514 (2018) (discussing the U.S. withdrawal from the JCPOA); 112 AJIL 745 (2018) (discussing the U.S. withdrawal from the UN Human Rights Council). The trend is not entirely in one direction, as the Trump administration has also pursued the making or renegotiation of some international agreements. See, e.g., Galbraith, Jean, Contemporary Practice of the United States, 113 AJIL 151 (2018)Google Scholar (discussing the renegotiated NAFTA); 113 AJIL 142 (2018) (describing the recent passage of implementing legislation for the Marrakesh Treaty and noting more generally that from January 2017 to November 2018 the U.S. Senate advised and consented to six treaties).