Trump and Weaponization of Treaty Termination — Constitutional and International Legal Issues.

Trump and Treaty Termination (Oct. 2018)

President Trump is aggressively terminating treaties. The U.S. Constitution establishes procedures for treaty making but says nothing about treaty termination. This treaty-making power is shared with the Senate. Little case law addresses the issue of treaty termination, which raises significant international law and constitutional issues impacting U.S. foreign policy and national security.

The following are some announcements concerning terminating treaties that the Trump administration made just this October:

  • The Trump administration announced pulling out of the 1955 bilateral treaty with Iran. This announcement came immediately after the International Court of Justice ruled in Iran’s favor and awarded it provisional measures in Iran’s action contesting renewed U.S. trade sanctions.
  • At that time, the administration declared that it would review all treaties that give the International Court of Justice (ICJ) jurisdiction to decide disputes with the U.S.
  • Also at that time, the administration declared that it would no longer be bound by the Vienna Convention on Diplomatic Immunity’s “optional clause,” which the U.S. accepted as giving the ICJ jurisdiction over treaty disputes involving the U.S.
  • Immediately afterward, the administration announced its intention to withdraw from the 144-year-old International Postal Treaty (Universal Postal Union).
  • Most recently, this month, the Trump administration announced it will withdraw from the Intermediate-Range Nuclear Forces Treaty (INF) with Russia.

 

Of course, the administration previously withdrew from the multilateral nuclear agreement with Iran, threatened to withdraw from the North American Free Trade Agreement, continuously threatens to withdraw from the World Trade Organization, and refused to continue negotiating the Trans-Pacific Partnership on the administration’s first day in office. The administration continuously threatens to withdraw from various bilateral trade deals. This threat of treaty termination is made alongside the administration’s threats to withdraw from a host of multilateral organizations and other diplomatic undertakings.

So, what’s the relevant U.S. constitutional law concerning the president’s authority to terminate treaties?

In 1979, the Supreme Court upheld President Carter’s unilateral withdrawal from the defense treaty with Taiwan. It considered treaty termination to be a non-justiciable “political question.” In a subsequent case involving the termination of the Anti-Ballistic Missile treaty by President Bush in 2002, a federal district court held that treaty termination was also a non-justiciable question. However, keep in mind that even though broad deference is made to the president in foreign affairs, the Supreme Court’s Curtis-Wright Case of 1936 clearly makes this point. More recent cases have consistently reviewed executive actions that affect national security. Witness the recent federal cases concerning President Trump and various immigration matters.

Proponents of broad presidential power concerning treaty termination argue that such power is implicit in the president’s foreign affairs and diplomatic powers. This statement is true to an extent. However, it does not extend to all cases of termination, such as those concerning non-self-executing treaties that have been implemented via congressional legislation. This is especially true concerning treaties or executive agreements regarding trade issues, where Congress has exclusive authority and where the agreements are implemented through congressional legislation.

The Trump administration’s aggressive use of treaty termination amounts to a weaponization of this power that has not previously occurred.

No matter what the domestic legality of the termination of a treaty may be, presidential termination does, in fact, terminate the agreement between the U.S. and its treaty partner. However, this termination may well be a violation of the treaty if it does not comply with the withdrawal provisions of the treaty, and such termination would place the U.S. in violation of international law.

International lawyers, foreign policy experts and Congress, among others, need to seriously review this matter. Because treaties create international and domestic laws, Congress should have major input in their formation and termination. Of course, the violation of international law raises serious foreign policy and national security concerns for the entire nation.

 

About Stuart Malawer

Distinguished Service Professor of Law & International Trade at George Mason University (School of Public Policy).
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