printable banner

U.S. Department of State - Great Seal

U.S. Department of State

Diplomacy in Action

15.Memorandum on power to enter into international arms control agreements (February 27, 2002)


Share

February 27, 2002

MEMORANDUM FOR JOHN B. BELLINGER, III
SENIOR ASSOCIATE COUNSEL TO THE PRESIDENT
AND LEGAL ADVISER
NATIONAL SECURITY COUNCIL

FROM: William H. Taft, IV

SUBJECT: The International Agreement Power and Arms Control Agreements

I. GENERAL RULE: TREATY VS. OTHER INTERNATIONAL AGREEMENT

Determination of Type of Agreement
The following considerations, together with those discussed in the subsequent section of this memorandum, apply to determining whether the United States will treat an international agreement as a treaty requiring Senate advice and consent or bring the agreement into force pursuant to some other constitutional basis.

Constitutional Requirements
There are two procedures under the Constitution through which the United States becomes a party to international agreements. Those procedures and the constitutional parameters of each are:

Treaties
International agreements (regardless of their title, designation, or form) whose entry into force with respect to the United States takes places only after the Senate has given its advice and consent are "treaties." The President, with the advice and consent of two-thirds of the Senators present, may enter into an international agreement on any subject of concern in foreign relations, so long as the agreement does not contravene the United States Constitution; and

International agreements other than treaties
International Agreements brought into force with respect to the United States on a constitutional basis other than with the advice and consent of the Senate are "international agreements other than treaties." (The term "executive agreement" is generally reserved for agreement made solely on the basis of the constitutional authority of the President.) There are three constitutional bases for international agreements other than treaties as set forth below. An international agreement may be concluded pursuant to one or more of these constitutional bases:

Agreements pursuant to treaty
The President may conclude an international agreement pursuant to a treaty brought into force with the advice and consent of the Senate whenever the provisions of the treaty constitute authorization for the agreement by the Executive without subsequent action by the Congress;

Agreements pursuant to legislation
The President may conclude an international agreement on the basis of existing legislation or subject to legislation to be enacted by the Congress; and

Agreement pursuant to the constitutional authority of the President
The President may conclude an international agreement on any subject within his constitutional authority so long as the agreement is not inconsistent with legislation enacted by the Congress in the exercise of its constitutional authority. The constitutional sources of authority for the President to conclude international agreements include:

The President's authority as Chief Executive to represent the nation in foreign affairs;

The President's authority to receive ambassadors and other public ministers;

The President's authority as "Commander-in-Chief"; and

The President's authority to "take care that the laws be faithfully executed."

II. CONSIDERATION FOR SELECTING AMONG CONSTITUTIONALLY AUTHORIZED PROCEDURES

In determining what procedures should be followed for any particular international agreement, consideration is given to the following factors, together with those in the preceding section of this memorandum:

The extent to which the agreement involves commitments or risks affecting the nation as a whole;

Whether the agreement is intended to affect State laws;

Whether the agreement can be given effect without the enactment of subsequent legislation by the Congress;

Past U.S. practice as to similar agreements;

The preference of the Congress as to a particular type of agreement;

The degree of formality desired for an agreement;

The proposed duration of the agreement, the need for prompt conclusion of an agreement, and the desirability of concluding a routine or short-term agreement; and

The general international practice as to similar agreements.

In determining whether an international agreement should be brought into force as a treaty or as an international agreement other than a treaty, care is always taken to avoid any invasion or compromise of the constitutional powers of the President, the Senate, or the Congress as a whole.

III. APPLICATION OF PRINCIPLES IN SECTION I AND II TO ARMS CONTROL AGREEMENTS

Form
Treaties
International agreements of the United States in the arms control area have generally been concluded as treaties.

International agreements other than treaties
Agreements pursuant to treaty
A number of Arms Control Treaties provide mechanisms under which bodies established by the treaty are authorized to make limited changes to parts of the treaty. For example, Section XI of the Protocol to the Treaty Between the United States and the USSR on the limitation of underground nuclear weapons tests provides that the Parties to the Treaty may change certain provisions of the Protocol by agreement in the Bilateral Consultative Commission established by that Section. However, the Protocol states that such agreed changes shall not be considered amendments to the Treaty or this Protocol. Although treaties such as the Panama Canal Treaty authorize the conclusion of new agreements, there does not appear to be a similar provision in any arms control agreement that would authorize a major new agreement in that field.

Agreements pursuant to legislation
The Interim Agreement between the United States and the [former] USSR on Certain Measures with Respect to Limitation of Strategic Offensive Arms and a related Protocol signed at Moscow on May 26, 1972 were concluded pursuant to a Joint Resolution that authorized the President to accept the Agreement and Protocol.

Agreements pursuant to the constitutional authority of the President
Armistice with Italy signed at Fairfield Camp, Sicily, September 23, 1943 was concluded on the basis of the President's commander-chief power.

Selection among constitutionally authorized procedures

Extent of commitments
The agreement under consideration involves commitments or risks affecting the nation as a whole. This criterion argues for a treaty or a legislatively approved international agreement.

Intention to affect State laws
If there are provisions in the agreement under consideration that would affect State laws, the treaty form would be preferable.

Whether the agreement can be given effect without enactment of subsequent legislation by the Congress
It is unclear whether if the arms control agreement being contemplated were to be a treaty there would be a need for enactment of subsequent legislation by the Congress.

Past U.S. practice as to similar agreements
Nearly all arms control agreements of the United States have been concluded as treaties.
The preference of the Congress as to a particular type of agreement
Section 34 of the Arms Control and Disarmament Act provides that no action obligating the United States to reduce its armaments may be taken except pursuant to the treaty-making power or unless authorized by further affirmative legislation by Congress. The Senate prefers that arms control agreements be concluded as treaties and has on a number of occasions expressed this preference in resolutions of advice and consent to arms control treaties.

The degree of formality desired for an agreement
Although the Document agreed among the States Parties to the Treaty on Conventional Armed Forces in Europe of November 19, 1990 ("the Flank Agreement") is less formal than most arms control agreements, the United States handled it as an advice and consent treaty. Outside the arms control area the formality criterion was applied with respect to the 1990 Treaty on the Final Settlement with Respect to Germany. A State Department spokesman had stated that the Department was leaning to the conclusion of the agreement as an executive agreement. The Senate Majority Leader and the Chairman of the Senate Foreign Relations Committee stated that because of its importance it should be a treaty. In light of those views, the President sent it for advice and consent.

The proposed duration of the agreement, the need for prompt conclusion of an agreement, and the desirability of concluding a routine or short-term agreement
In the arms control area, the classic example of the short term, urgent agreement is the interim armistice agreement. The Military Armistice in Korea and the Temporary Supplementary Agreement of July 27, 1953 appear to have been based on the President's commander-in-chief powers. This criterion would favor the treaty form for the arms control agreement under consideration.

The general international practice as to similar agreements
The general international practice is to conclude arms control agreements as treaties.



Back to Top
Sign-in

Do you already have an account on one of these sites? Click the logo to sign in and create your own customized State Department page. Want to learn more? Check out our FAQ!

OpenID is a service that allows you to sign in to many different websites using a single identity. Find out more about OpenID and how to get an OpenID-enabled account.