human rights contexts internationally and domestically alike.
Significantly, the Vienna Convention does not itself identify any such norms, and scholars are not in full agreement regarding precisely what norms are peremptory. As noted above, however, it is generally accepted that, for example, the prohibitions against genocide; slavery; murder or causing the disappearance of persons; torture or other cruel, inhuman, or degrading treatment or punishment; prolonged arbitrary detention; systematic racial discrimination; and consistent patterns of gross violations of recognized human rights norms are all deemed be peremptory norms against which no state may derogate. Thus, a treaty to commit genocide, or a treaty to legalize any form of a slave trade, would be void as in contravention of jus cogens. This signifies that although a trade agreement might not directly address human rights issues, all such agreements are, by necessity, concluded in a context of universal acceptance that they cannot derogate from peremptory norms and a general agreement as to what some such norms are.
1.4 International Law as U.S. Law
The following overview of international law-making and its relation to domestic law (using the United States as an example) is intended to familiarize the reader with general international law-making, as all the themes that we will engage in this volume are “binding law” by virtue of both international norms—be they conventional or customary—and domestic norms. The trade agreements, bodies, and processes that will be introduced in chapter 2 and the human rights agreements, bodies, and processes that are introduced in chapter 3 all are either custom- or treaty-based.
With the international rules in mind, it is instructive to review U.S. domestic law on treaties. As briefly noted above, the U.S. Constitution requires the president to make treaties and then obtain the advice and consent of a two-thirds majority of the Senate. Thus, in the United States, the treaty-making power is one of executive-congressional codetermination. It is noteworthy that, contrary to popular usage, the Senate’s role is not one of ratification—rather, the Senate’s role is to give advice and consent. Ratification takes place when the parties formally exchange ratification instruments. We often witness the exchange of ratification instruments in Rose Garden ceremonies when the president signs the instrument after obtaining the requisite senatorial advice and consent. It is always a plenipotentiary who signs the instrument’s ratification.
Although treaty power is one of executive-congressional codetermination, in recent years it effectively has moved, at least outside the trade regime, toward becoming a presidential monopoly by executive use of other types of agreements that have been considered the functional equivalent of treaties. The most notable of the alternatives is the sole executive agreement. The other is the executive agreement pursuant to legislation or joint resolution. Both of these alternatives satisfy the Vienna Convention definition of “treaty,” although they fall short of U.S. constitutional requirements because they lack the advice and consent of two-thirds of the Senate. It is undisputable that before and after adoption of the Constitution, however, the president signed international agreements that were binding without the Senate’s advice and consent.
Effectively, the president utilizes the sole executive agreement to bypass the Senate. There is constitutional authority for such agreements, however, if they are based on express presidential powers such as commander in chief, authority to receive ambassadors, or implied powers to conduct foreign relations. It thus becomes simply an undeclared treaty that seeks to avoid paying constitutional dues by changing its name. It is an agreement between the president or his or her subordinates and a foreign counterpart; this agreement, because it is not submitted to the Senate for its advice and consent, cannot be a treaty for constitutional purposes.
In the early days pure executive agreements were rare, and when they existed they were limited in scope. For instance, there might be an executive agreement for the exchange of prisoners of war. But they became much more frequently used in the 20th century. The high-water mark for such agreements came with President Franklin Delano Roosevelt’s recognition of the communist regime in Moscow and the transfer of title to Russian properties in the United States to compensate U.S. citizens who had lost on investments in Russia. The U.S. Supreme Court held that the executive agreement recognizing Russia and effecting the transfer of property was constitutional because it constituted the exercise of president plenary power to recognize foreign governments.14
One problem with this sole executive agreement approach is that it avoids constitutional checks and balances. The country cannot be sure about what obligations are being assumed and foreign nations cannot be certain what obligations Congress will consider binding. A unilateral executive approach also has the potential for causing difficulties for the executive in carrying out the agreement’s obligations should any funds be needed, as it is Congress that possesses the power of the purse. To be sure, the trend toward executive agreements has caused concern in the Senate, which feels squeezed out of its advice and consent function.
In fact, as a result of the proliferation of executive agreements in 1972, Congress, relying on the “necessary and proper” clause, passed the Case-Zablocki Act,15 which requires regular reporting to the Senate about ongoing international negotiations.16 It provides Congress with surveillance power over executive agreements as the secretary of state must send to Congress the text of any international agreement to which the United States is a party, including oral ones, other than a treaty (by constitutional standards), within sixty days of the agreement coming into force. Moreover, the president under his or her own signature, “not later than March 1, 1979, and at yearly intervals thereafter,” must transmit to Congress a report concerning what agreements were negotiated after the expiration of the sixty-day period with an explanation for the delay.17
Early executive agreements were mostly made pursuant to legislation or joint resolution of Congress. The executive agreement pursuant to legislation avoids having to obtain the advice and consent of a supermajority of the Senate. Today, executive officials cite the early cases to conclude that such historical reality legitimizes the use of executive agreements.
In the original draft of the Constitution, the Committee of Detail assigned the treaty power solely and exclusively to the Senate. The shift to a shared executive-Senate function requiring a supermajority vote in the Senate reveals a desire for a higher degree of consensus for passage of an international agreement than for ordinary law. In fact, a proposal at the Constitutional Convention that international law be made by the president and a simple majority of both chambers of Congress was rejected. In light of this history, it is interesting that the executive agreement plus joint resolution is one of the accepted treaty alternatives.
Significant events in U.S. history have occurred pursuant to these other agreements. For example, the annexation of Texas in 1845 was accomplished by executive agreement plus joint resolution. The President opted for that alternative after the Senate vote did not yield the two-thirds supermajority necessary for a constitutionally defined treaty.18 More recently, and significant to this volume, a constitutional challenge to the validity of the North American Free Trade Agreement (NAFTA), based on its being concluded as a congressional-executive agreement, failed.19
Clear constitutional language on treaties notwithstanding, presidents have come to treat the formal agreements together with sole executive agreements and executive agreements plus joint resolution as interchangeable. Even the U.S. Department of State endorses these three alternative approaches to making international agreements: (1) agreements pursuant to treaty; (2) agreements pursuant to legislation; and (3) agreements pursuant to constitutional authority of the president: (a) as chief executive representing the nation in foreign affairs, (b) to receive ambassadors and other public ministers, (c) as commander in chief, and (d) to take care that the laws be faithfully executed.20
These trends notwithstanding, there are some subjects that warrant an agreement that follows the traditional constitutional Article II treaty process.21 These
