Can USA exit a treaty that was signed and ratified by President with Senate approval?

If so, what is the precise mechanism for withdrawing from a treaty for US Government?

If the answer differs for non-international treaties - e.g. with Native tribes - please answer international or both

Emmerich de Vattel wrote a chapter in his work The Law of Nations or the Principles of Natural Law (1758): Of the Dissolution and Renewal of Treaties.

De Vattel says that there are 4 ways to exit a treaty:

  • Expiration
  • Violation
  • Destruction of one of the contracting powers
  • Dissolution by mutual consent

Expiration The US can exit a treaty that is limited in time by not renewing at the end of the term or if the other signatories choose not to renew the treaty. The North Atlantic Treaty (that creates the NATO Alliance) Expires after 20 years but is self renewing unless a signatory provides notice of denunciation in which case that signatory would exit after one year. (Article 13)

If the renewal requires action to be renewed then the Senate would have to agree to renew and the president sign it(US Constitution Article 1 Section 8). In the case of auto renewal it is possible that the president could issue an executive order that would issue the notice of denunciation. I suspect that congress could challenge that order but the results of that challenge are not obvious.

Violation

The US could also exit a treaty through violation. Germany exited the Treaty of Versailles in 1939 this way. The Germans were limited in what military arms they could produce and they were prohibited from any aggressive military actions. When the Germans invaded Poland in 1939 the Treaty of Versailles was declared void and Europe returned to a state of war. In this method it is the option of the other signatories to dissolve the treaty not the violator, so this is not the best course of action unless the US is willing to deal with all of the consequences.

The president could choose this method on his own with out the Senate in many cases simply by ordering the military to take some action that violates the treaty.

The US could also be on the right side of a violation. For instance, if Russia was caught providing nuclear weapons to Iran, the US could pull out of its non proliferation treaties. I am not saying that it would be in the US's interest to do so, just that such a violation would give them the option to make that choice.

In the case where the US is on the right side of the violation it has in the past required senate action to dissolve the treaty. In the case of Iraq in 2002 the Senate found Iraq's actions in violation of the UN brokered treaty and choose to take action. This was done at the presidents request. This is the precedent that has been used several times through out US history.

Destruction of one of the contracting powers

This one is pretty simple. If one of the signatories of the treaty were to be destroyed or dissolved, then any or all of the other signatories could choose to pull out of the treaty at that point.

Dissolution by mutual consent

If all parties wish the treaty to be void then they can make it so. It is unclear how this would work in practice. In theory it would require that the Senate take action to approve the dissolution, but I Suspect that if the nations leaders got together and agreed to void the treaty there is little the legislative bodies could do to prevent that action. It would be difficult to convince the world courts that the president did not have the authority to agree to the dissolution if the other members wanted out.

  • 1
    I think this misunderstands the question. DVK is asking about America's (and perhaps international law's) legal mechanisms for withdrawing from treaties. – Avi Feb 19 '14 at 0:24
  • @Avi - Those are the mechanisms. What is unclear? It is not codified because never before have we had a president that flagrantly ignored the constitutional demand for advice and consent of the Senate. – SoylentGray Feb 19 '14 at 5:22
  • then I think you want to say it's never before been codified. DVK is asking about how the US can withdraw from treaties legally, not just in practice, though he can correct me if I'm wrong. – Avi Feb 19 '14 at 6:25
  • @Avi - If you read at the end of each section I have included what would be required to do so. – SoylentGray Feb 19 '14 at 11:54
  • In the last case, some treaties include in their terms a mechanism for contracting parties to withdraw, whether entirely or with respect to certain aspects of the treaty. Withdrawing from a treaty in keeping with the treaty's own terms presumably counts as "mutual consent." – phoog Aug 10 at 16:51

Aside from exit by consent of the parties to the treaty, the United States may exit a treaty by officially finding its apparent ratification to be invalid. Invalidity includes cases where the Senate by passing the treaty was acting Ultra Vires in breach of the US Constitution.

One may recall that the Senators and the US President take oaths of office to the effect that they are only authorized to act as agents of the People of the United States in Federal Convention under the provisions of the federal Constitution. Therefore, treaties which breach the Due Process and Unjust Takings Clauses, for example, cannot be validly ratified by the Senate.

For example, a treaty cannot validly abolish private property. However, State governments have a habit of acquiescing to Federal Takings of State Government jurisdiction via Treaties pursuant to the language in Article 6 of the federal Constitution that "all Treaties made [...] under Authority of the United States [...] Judges in every State shall be bound thereby". See Larry Becraft's article "Treaties: A source of Federal municipal power".

A treaty may be found invalid officially by act of the People in Federal Convention or by decision of the US Supreme Court or by Congressional resolution. The President or Secretary of State, perhaps acting through ambassadors, should maintain honor by giving a written notice of invalidity to the other treaty-making parties.

If the Treaty was a Charter for a Public International Organization which has not committed any gross malfeasance it would be appropriate for the United States to waive any rights it has in the property of that organization upon dissolution. This will help prevent adhesion to the treaty via principles of Equity.

It depends on in the context of what law.

  • Under international law: A treaty signed and ratified cannot be "exited" except as provided by the treaty. Some treaties expire after a certain amount of time or when a certain thing happens. Some treaties allow a state to withdraw from it, which may or may not require a certain notification time before the state is considered withdrawn. Some other treaties do not allow a state to leave at all once it joins.

    If a state tries to "leave" a treaty other than as provided by the treaty, then the state is still bound by the treaty in the eyes of the international community, and any action by the state contrary to the terms of the treaty will still be viewed as a violation of the treaty.

  • Under U.S. law: A treaty's effects within U.S. law depends on the specific U.S. legal instrument that is used to implement the treaty. U.S. legal terminology differs from the international one and there are several different kinds of things an international "treaty" can be implemented as in the U.S.:

    • What is called in U.S. law as a "treaty", as described in Article II, section 2, clause 2 of the Constitution: The President signs it and it is ratified by two thirds of the Senate. (The House of Representatives is not involved.)
    • A "congressional-executive agreement": The President signs it and it is passed (or has already been passed) as regular legislation by Congress through the regular lawmaking process (passed by majority in both houses and signed by president).
    • A "sole executive agreement": The President signs it and Congress is not involved.

    The first two types ("treaties" and "congressional-executive agreements") both have the effect of federal laws under U.S. legal theory. As such, any parts of it which conflict with the Constitution (as decided by U.S. federal courts) are void. Furthermore, as with any other federal law, Congress can repeal or amend it by simply passing a new law that conflicts with it through the normal lawmaking process (passed by majority in both houses and signed by president or a veto is overridden by two-thirds of both houses).

    The third type ("sole executive agreement") has the effect of an executive order under U.S. legal theory. As such, it can only act in areas where the President himself has the legal authority to act. The current or a future president can repeal or amend it unilaterally at any time by issuing a new executive order. And Congress can repeal or override it at any time by passing a law that conflicts with it through the normal lawmaking process (passed by majority in both houses and signed by president or a veto is overridden by two-thirds of both houses).

    Note that in all the above cases where a treaty is repealed or changed under U.S. law (e.g. courts declare it constitutional, or it is repealed or changed by Congress and/or the President), it does not change the obligations of the treaty on the U.S. in the eyes of international law. Under international law, the domestic institutions of a state (whether it be courts, Congress, constitution, etc.) are all part of that "state", which cannot unilaterally alter its own obligations under the treaty, except as provided by the treaty. So for example if a court declares a treaty provision unconstitutional, then under U.S. law that provision would be void, and the executive branch will have no choice but to abide by that, even if it means it will have to violate the terms of the treaty in the eyes of the international community.

This question is expressly referring only to a narrow portion of the US agreements that are considered treaties under international law (per user102008's comment/answer etc.) But for simplicity henceforth I'll use "treaty" below to refer just these treaties ratified by a 2/3 majority of US senate, i.e. use US law terminology.

From a 2001 study by the Congressional Research Service... starting with a vague reference to Vattel (Law of Nations) and similar monist ideas:

As a general rule, international law and domestic law regarding the amendment or modification, extension, suspension, and termination of treaties and other international agreements are in substantial harmony. [...]

It can be argued that amendment or modification, extension, suspension, and termination of a treaty are essentially the forging of new agreements and that, therefore, each is subject to the same rules as apply to the making of a treaty, that is, conjoint action by the President and the Senate. However, that conclusion is not established by an unbroken line of consistent practice. By and large the participation of the Senate with respect to amendment or modification and extension of treaties seems fairly well established; suspension seems largely left to Presidential determination; termination has happened in such a variety of ways that it has been said that ‘‘[n]o settled rule or procedure has been followed.’’

The last bit is footnoted to Whiteman, Marjorie. Digest of International Law, 1970. v. 14, 460 (hereafter cited as 14 Whiteman). Compare S. Rept. 97, 34th Cong., 1st Sess. See, generally, U.S. Congress. Senate. Committee on Foreign Relations. Termination of Treaties: The Constitutional Allocation of Power. Committee Print. 95th Cong., 2d Sess. (1978).

And a bit later is detailed (not much) as:

The Constitution is silent on procedures for modifying or terminating treaties, and agreement has not been reached between the branches on a single proper mode. [...]

Twice in recent years the method of terminating a treaty has raised serious controversy within the United States. In 1978, President Carter terminated the defense treaty with the Republic of China [Taiwan] without the concurrence of either the Senate or Congress when he established diplomatic relations with the People’s Republic of China.
In 1977, the new Panama Canal Treaty terminated the 1903, 1936, and 1955 treaties with Panama. Although a new treaty was approved by the Senate, some contended that the termination of the earlier treaties required an act of Congress, thus including approval by the House of Representatives as well as the Senate.

Most of the discussion there is about modifications; I've quoted only the portion about exit/termination.


In practice, some (more recent) treaties have a clause that allows the US president to terminate them unilaterally, e.g. KORUS has/had:

If the President does invoke Article 24.5, and no further action is taken, KORUS will terminate 180 days after such notice is given.

Since the whole text is approved by the Senate, such an exit clause is basically like a mini "congressional-executive agreement" just on the exit route, in the sense that the Senate explicitly delegates the power to exit (a particular treaty) to the President.

And stated as a more general observation in the Congressional study

Termination.—At the international level, treaties often contain provisions regarding duration and the method of termination, or nations may terminate treaties by mutual consent. Grounds for termination include violation of the agreement, but violation does not automatically terminate a treaty.

Domestically, the Constitution does not prescribe the process for the United States to terminate a treaty, and the process continues to be controversial. Treaties have been terminated in a variety of ways, including by the President following a joint resolution of Congress, by the President following action by the Senate, by the President and with subsequent congressional or Senate approval, and by the President alone.

And the study gives examples of each later on...

  • executive withdrawal or termination pursuant to prior authorization or direction from Congress; [examples are fairly numerous, a recent one:] Comprehensive Anti-Apartheid Act of 1986, mandating that “[t]he Secretary of State shall terminate immediately” a tax treaty and protocol with South Africa

  • executive withdrawal or termination pursuant to prior authorization or direction from the Senate [most examples are old; the most recent I've seen mentioned: Wilson's termination in 1921 of the International Sanitary Convention of 1903]

  • executive withdrawal or termination without prior authorization, but with subsequent approval by Congress: [the only clear case given] "In 1864 the Secretary of State directed the U.S. Minister in London to give the British Government the stipulated 6-months’ notice of an intention to terminate the Great Lakes Agreement of 1817 regulating armaments on the Great Lakes. The minister did so, and a few months later Congress by joint resolution ‘‘adopted and ratified’’ the notice of termination [There's a confusing case in 1911, in which Congress "adopted and ratified" a declaration of President Taft terminating a 1832 treaty with Russia, which the President only asked the Senate to ratify].

  • executive withdrawal or termination without prior authorization, but with subsequent approval by the Senate; [no real examples except the confusing one with Taft (from right above), interpreted differently]

  • unilateral executive withdrawal or termination without authorization or direction by Congress or the Senate [famous example(s):] Telegram from the U.S. Department of State to the Embassy of the Republic of China (Dec. 23, 1978) [leading to Goldwater v. Carter, in which the Supreme Court declined to rule on the constituionality of the Telegram but also dismissed the complaint against it. Based on this precedent, Reagan unilaterally terminated a Treaty of Friendship, Commerce and Navigation with Nicaragua, and the (district) courts also dismissed the complaint against this termination, citing Goldwater v. Carter. Then came Bush and the ABM Treaty, the complaint against it dismissed in Kucinich v. Bush.]

Who in the US determines treaty violation(s) so bad that the US can exit the treaty is basically the same issue as who can decide termination (which is why I mentioned that first.) And since that's the case, what can also happen in case of violations is...

Suspension.—The President conveys notice of suspension of a treaty and makes the determination that would justify suspension, such as a fundamental change in circumstances or material breach of a treaty by another party.

(Giving examples of suspension is veering too much off-topic.)


And regarding ultra vires (void treaties): following Missouri v. Holland (1920) and Reid v. Covert (1957), the US Constitution (unsurprisingly) was found to take precedence and void any treaty (or agreement) clauses violating it; quoting from the latter case:

[n]o agreement with a foreign nation can confer power on the Congress, or on any other branch of Government, which is free from the restraints of the Constitution.

In Missouri v. Holland, the Supreme Court found nothing violating the Constitution in the treaty in question (on migratory birds). Reid v. Covert was about an executive agreement (not treaty) that was found unconstitutional because it allowed US citizens who were not members of the military to be judged abroad by military tribunals. I'm not aware of cases after that... but there were before Reid v. Convert basiscally overturned In re Ross (a case from 1891) as "a relic from a different era"; in that case a seaman was tried abroad by a consular court pursuant to a treaty.

Since the 1960s, virtually all examples of such tension between treaty and Constition have been issues handled at accession rather than being discovered thereafter:

Treaty practice continues to be consistent with Reid v. Covert. Where accession to an international treaty regime poses a plain downward departure from internal interpretations of individual rights, the United States has rejected or qualified its participation.


One more thing to note is that the US has singed (in 1970) but not ratified the Vienna Convention on the Law of Treaties. The convention is still on the pending treaties list of the Senate and successive US administrations have stood by the signature when queried explicitly.

The Convention is somewhat relevant here because it also covers treaty termination routes,

[a]ny act declaring invalid, terminating, withdrawing from or suspending the operation of a treaty pursuant to the provisions of the treaty ... through an instrument communicated to the other parties. If the instrument is not signed by the Head of State, Head of Government or Minister for Foreign Affairs, the representative of the State communicating it may be called upon to produce full powers.

But this text largely ignores everything particular to the US, e.g. one commentary is:

Under this rule, a notice of withdrawal issued by the President (i.e., the “Head of State” for the United States) would effectively withdraw the United States from the international agreement as a matter of international law, providing such notice complied with applicable treaty withdrawal provisions. In this regard, the withdrawal process under international law may not account for the unique constitutional and separation of powers principles related to withdrawal under U.S. domestic law.

The convention also covers disputes, but those are mostly referred to the ICJ and since 1985 the US has decided not to recognize the ICJ's authority except on a case-by-case basis.

Under U.S. Constitutional law, a duly adopted treaty may be abrogated (which isn't quite the same as exited), by passing a subsequent ordinary act of Congress or treaty that contradicts some or all of the terms of the previously adopted treaty, even though almost no other countries permit these means of treaty exit.

It is not clear to me, however, the extent to which this principle applies to treaties with Indian Tribes and I offer no opinion on that question.

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