Chapter 1A INTERJURISDICTIONAL WATERS: THE NEGOTIATIONS TO MODERNIZE THE INTERNATIONAL COLUMBIA RIVER TREATY

• Jurisdiction: United States

Water Law Institute
Chapter 1A

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INTERJURISDICTIONAL WATERS: THE NEGOTIATIONS TO MODERNIZE THE INTERNATIONAL COLUMBIA RIVER TREATY
Barbara Cosens University Distinguished Professor Emerita, University of Idaho College of Law, and Waters of the West Program Moscow, ID

Introduction

Domestic law of a nation-state¹ governs issues of who has authority to act on behalf of the nation-state and how it becomes bound by a particular international agreement. This is referred to as "domestic law in international law." Despite the Constitutional requirement of the advice and consent of a two-thirds majority of the Senate for ratification of a treaty, the means through which the United States enters international agreements that have the force of international law is actually much broader and more complicated and includes agreements authorized by both houses of Congress as well as sole Executive agreements.

The United States shares both surface and ground water with Canada and Mexico and generally relies on bilateral treaties to handle issues arising with shared watercourses. The Columbia River shared by the United States and Canada has been jointly operated for shared benefits under the Columbia River Treaty since 1964. A change in the obligations under the treaty in 2024 prompted a major review starting in 2010. Negotiation of a modernized treaty commenced in 2018 and continues at the time of this writing.

This paper will begin with a brief tutorial on the U.S. process for the negotiation and finalization of international agreements then turn to the Columbia River Treaty (CRT).

United States Domestic Law in International Law²

The United States Constitution provides authority for Presidential ratification (via signature) of international agreements following the advice and consent of a two thirds

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majority of the Senate.³ However, actual practice indicates greater flexibility and some room for unilateral Executive action. To date, the US Supreme Court has rejected challenges to unilateral Presidential action. The following sections provide details on the current practices of the United States when acting in international law in both negotiation and ratification of international agreements.

Negotiation of treaties pursuant to United States domestic law

International law leaves the question of who represents a nation-state in international law and the process for ratification of an international agreement to the domestic law of that nation-state. In U.S. domestic law, the Constitution provides that "[the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur . . ."⁴ US states or their subdivisions do not have the authority to enter into an agreement with the force of international law,⁵ although informal agreements on shared watercourses exist between US states and Canadian provinces.⁶ The authority to negotiate on behalf of the President is generally delegated to the Department of State, originally titled the Department of Foreign Affairs when it was the first established by Congress in 1789.⁷ Through the

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authority of the Executive to appoint the negotiators, it is possible to include state, community or tribal representatives on the negotiating team.⁸

Ratification of treaties in United States domestic law

Ratification of a treaty in U.S. domestic law is accomplished by the signature of the President. However, the steps necessary to allow the President to ratify an agreement that has the force of a treaty in international law, although clearly set forth in the Constitution, is in practice a gray area in U.S. domestic law. Under U.S. domestic law, international agreements that have the force of a treaty in international law may be ratified by the Executive (1) with the advice and consent of the Senate; (2) with prior or post-authorization of Congress; or (3) unilaterally.⁹ The uncertainty in the law relates to the choice of the mode of ratification. While in domestic law, the term "treaty" is reserved for those agreements ratified with the advice and consent of the Senate,¹⁰ in international law all three forms of agreement would be referred to as a "treaty."¹¹ The U.S. Senate website includes information on the growing use of means other than ratification on the advice and consent of the Senate to enter into international agreements, stating that "[a]ccording to a 1984 study by the Senate Committee on Foreign Relations, '88.3 percent of international agreements reached between 1946 and 1972 were based at least partly on statutory authority; 6.2 percent were treaties [with the advice and consent of the Senate], and 5.5 percent were based solely on executive authority.'"¹² In 1952 alone, "the United States signed 14 treaties and 291 executive agreements."¹³

Congressional-Executive agreements are international agreements negotiated by the Executive with either prior Congressional authorization or subsequent Congressional approval or both.¹⁴ This approach differs from the advice and consent of the Senate by (1) reducing the requirement of a two thirds Senate majority to a simple majority; and (2) allows the House of Representatives, where revenue and appropriations bills start, to weigh in by a simple majority vote.¹⁵ Trade agreements are often Congressional-

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Executive agreements.¹⁶ Use of this approach may provide an advantage if treaty implementation requires an appropriation, because the same bill can be used to either authorize or approve the treaty and to authorize an appropriation. With the exception of some scholarly writing that takes the position that the requirement for the advice and consent of a two thirds majority of the Senate in the U.S. Constitution is absolute,¹⁷ there seems to be little domestic controversy regarding the use of this method to enter into a binding international agreement.

Sole Executive agreements are international agreements entered into by the Executive without the concurrence of either Congress or the Senate. The U.S. Senate website indicates that the difficulty in obtaining a two thirds majority required for Senate consent and the growing scope of foreign interaction has led to a proliferation of Executive agreements since World War II.¹⁸ Executive agreements have the same legal standing as a treaty in international law and when addressed by U.S. courts. However, there is considerable debate about the scope of the Presidential power to act unilaterally¹⁹ among both scholars²⁰ and members of Congress.²¹ Even those scholars who do not go so far as to assert that all international agreements require the "advice and consent" of the Senate, suggest that the scope of Presidential authority is limited.²² Although some scholars base the scope of Presidential power to unilaterally enter into an international agreement on those powers enumerated in the Constitution²³ and draw the line at those

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powers specifically assigned to Congress,²⁴ as a practical matter the line is drawn politically in a battle of wills between the President and Congress.²⁵ This leads to considerable uncertainty regarding the scope of Presidential power to enter into an Executive Agreement.

Advice and Consent of a two-third majority of the Senate is required by the U.S. Constitution prior to Presidential ratification.²⁶ Although scholars debate whether the framers of the constitution intended this as the sole means for entering international agreements, the increase in international relations since World War II has led to increasing reliance on the more expedient approaches. The Department of State has developed criteria for determining when the advice and consent of the Senate is required.²⁷ These factors are:

(1) The degree of commitment or risk for the entire Nation;

(2) Whether the agreement is intended to affect state laws:

(3) Whether the agreement requires enabling legislation;

(4) Past U.S. practice;

(5) The preference of Congress;²⁸

(6) The degree of formality desired;

(7) The proposed duration and the need for prompt conclusion;

(8) General international practice on similar agreements.

Historically, debates between Congress and the Executive concerning the power of the President to enter into an Executive agreement have played out in both the political arena and the courts. U.S. Supreme Court rulings on the matter are discussed below. The political debate has generally involved cases dealing with the unilateral exercise of war powers by the President. In 1973, Congress passed the War Powers Act²⁹ over presidential veto,³⁰ attempting to limit the ability of the President to commit troops to battle.³¹ Kirgis notes "[t]he War Powers Resolution in practice has had the effect of inducing Presidents to consult with and report to Congress when U.S. armed forces are used in combat situations, but it has not significantly limited the President's practical

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power to commit the United States to use military force."³² The year before, in 1972, Congress also passed an act requiring transmittal of any Executive agreement to Congress within sixty (60) days of its finalization.³³ According to the Congressional Research Service, one of the reasons the Vienna Convention on the Law of Treaties remains pending on the Senate Foreign Relations Committee calendar is that the Executive branch objected to an interpretation the Senate would impose on approval - i.e. the position that a "treaty" for purposes of the convention (and thus international law) is limited to an international agreement entered into by the President with the advice and consent of the Senate.³⁴

The President's role as commander-in-chief of the armed forces arguably introduces some ambiguity in the area of war powers. It is more difficult, however, to assert that the power of the President to act unilaterally extends to areas of commerce such as water and hydropower.³⁵ Nevertheless...