Founding-era jus ad bellum and the domestic law of treaty withdrawal.

Author:Hessel, Daniel J.
Position:Introduction through II. The Original Understanding of Jus Ad Bellum and Congressional War Powers Implies a Role for Congress in Treaty Withdrawal A. Treaties and Jus Ad Bellum During the Founding Era, p. 2394-2416

NOTE CONTENTS INTRODUCTION I. THE DEBATE ON TREATY WITHDRAWAL POWER A. For Presidential Unilateralism B. Against Presidential Unilateralism II. THE ORIGINAL UNDERSTANDING OF JUS AD BELLUM AND CONGRESSIONAL WAR POWERS IMPLIES A ROLE FOR CONGRESS IN TREATY WITHDRAWAL A. Treaties and Jus Ad Bellum During the Founding Era 1. Treaty Breach Presented a Just Cause of War 2. At the Founding, Treaty Withdrawal Was Tantamount to Breach B. Congressional War Powers 1. The Original Understanding Was that Congress Had Broad War Powers 2. The Broad Scope of Congressional War Powers Implies a Role for Congress in Treaty Withdrawal III. COUNTERARGUMENTS AND IMPLICATIONS A. Distinguishing Between the Power To Declare War and the Power To Take Actions Bringing the Country Closer to War B. Unilateral Breach Versus Unilateral Withdrawal C. The Changed Law of Nations Should Not Upend Separation of Powers D. Distinguishing Among Treaties E. The House Should Have a Vote CONCLUSION INTRODUCTION

Despite articulating a detailed and arduous process by which the United States can enter into a treaty, the Constitution remains silent on how the country can exit from a treaty under domestic law. Article II, Section 2, which addresses treaty accession, contemplates heavy executive-branch involvement in the negotiation process with one or more foreign nations and requires a two-thirds supermajority of the Senate to approve any accord before a treaty becomes the law of the land. (1) In contrast, the Constitution provides no textual guidance on the process for treaty withdrawal, let alone Congress's role in that process. The Supreme Court has not clarified matters. In Goldwater v. Carter, (2) the most recent Supreme Court case on treaty termination, only one Justice reached the merits; (3) six other Justices determined that the case was nonjusticiable. (4)

The lack of textual and judicial guidance regarding treaty withdrawal has serious policy consequences. As numerous examples illustrate, there is little to stop a President from unilaterally withdrawing from a treaty, even though Congress's involvement would have been required to enter the treaty in the first place. (5) Most recently, the Bush Administration unilaterally withdrew from the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes. (6) As a result, the United States no longer recognizes the jurisdiction of the International Court of Justice to hear disputes arising from the Vienna Convention on Consular Relations, (7) following that Court's finding that the United States had violated the rights of death-sentenced Mexican nationals and that the sentences should be reconsidered. (8)

Congress's role in treaty withdrawal also prominently arose in 2001 when President Bush withdrew the United States from the nearly thirty-year-old Anti-Ballistic Missile Treaty (ABM) with Russia. (9) The ABM was negotiated by the Nixon Administration and the Soviet Union and approved by two-thirds of the Senate in 1972. It was viewed as a major development in U.S. nonproliferation policy with the Soviet Union, imposing strict limits on each country's ability to develop anti-ballistic missile technology. (10) At the time of withdrawal, myriad experts, policymakers, and foreign leaders warned that withdrawing from the ABM threatened global nonproliferation policy and risked upsetting a carefully calibrated relationship with Russia. (11) Despite these severe warnings, Congress played no formal role in the decision to withdraw from the treaty that two-thirds of the Senate had approved twenty-nine years earlier. (12) A federal district court dismissed a lawsuit filed by thirty-two members of Congress seeking to prevent unilateral executive-branch withdrawal from the ABM, citing as "instructive and compelling" the Goldwater plurality's opinion that treaty withdrawal presented a nonjusticiable political question. (13)

Goldwater itself demonstrates how treaty withdrawal implicates important foreign policy questions. The case arose after President Carter unilaterally withdrew from a mutual defense treaty with Taiwan (14) in an attempt to improve Sino-American diplomatic relations by temporarily ending U.S. obligations to assist Taiwan in the event of an attack. Senator Barry Goldwater, who led the suit against Carter, was a strong opponent of the President's China policy, which he decried as "selling out Taiwan." (15)

Given the serious policy implications of treaty withdrawal, it is perhaps unsurprising that the issue of congressional treaty withdrawal power--and the relative balance of power between the executive and legislative branches-is hotly debated. Politicians, (16) practitioners, (17) judges, (18) and academics (19) have weighed in. Yet for all the attention that treaty withdrawal has received, the debate has largely overlooked a crucial element: the original understanding of the relationship between treaty withdrawal and the international law of war.

This Note seeks to contribute to this debate by highlighting the original understanding of Congress's powers in treaty withdrawal. This Note argues that, at the Founding, treaty withdrawal provided a just cause of war under the law of nations. Because the Founders and their contemporaries likely viewed treaty withdrawal as a matter of war and peace, and because the Constitution assigns Congress the power to declare war, this Note concludes that the original understanding of the Constitution contemplated a congressional treaty withdrawal power.

A few words on the Note's methodology: within originalism, commentators often distinguish between "original intent" and "original public meaning." An "original intent" approach inquires into the meaning that the Constitution's drafters intended. (20) An "original public meaning" analysis asks "what meaning constitutional text would have had to a neutral reader of the English language at the time of the framing." (21) Yet as Gregory Maggs has suggested, these modes of originalism may be to some extent interchangeable. (22) The understanding of the Framers, as expressed in a particular document, is typically a strong indication of the public's understanding. (23) It is safe to assume that the law of nations was familiar to the Framers and to knowledgeable citizens. (24) William Eskridge has explained the relevance of originalism to the search for constitutional meaning:

The main reason original meaning is a relevant inquiry is that a strong body of scholarly work and Supreme Court precedent maintain that the most legitimate approach to constitutional interpretation at least starts with original meaning.... [A]ll of the [current Supreme Court] justices find original meaning relevant (and some believe it controlling). (25) While this Note focuses on the writings of the Framers and the leading international law theorists of the day, these sources provide clues to both the intent of the Framers and the "original public understanding" of treaty withdrawal under international law.

Originalism figures prominently in the debate over the domestic law of treaty withdrawal. (26) Even...

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