35. Memorandum, David Small, Assistant Legal Adviser for Oceans, International Environmental and Scientific Issues, regarding territorial sea convention (April 5, 1989) and response of John McGinnis, Office of Legal Counsel (July 1, 1991)
U.S. Department of Justice
Office of Legal Counsel
Washington, AC 20530
July 1, 1991
Mr. Alan J. Kreczko
Deputy Legal Advisor
United States Department of State Washington, D.C. 20520
Dear Mr. Kreczko:
You have asked this Office whether extension of the contiguous zone by the United States would raise concerns under the 1958 Convention on the Territorial Sea and the Contiguous Zone (1958 Convention). For the reasons set forth below, we defer to your judgment that the 1958 Convention does not prevent the United States from extending its contiguous zone.
The 1958 Convention provides that a nation's contiguous zone "may not extend beyond twelve miles from the baseline from which the breadth of the territorial sea is asserted." You have said, however, that a consensus has emerged since 1958 that a twenty-four mile contiguous zone is permissible under international law. For example, the 1982 Law of the Sea Convention states that a nation may now claim a contiguous zone of up to twenty-four miles. Although the United States has not ratified the 1982 Law of the Sea Convention, President Reagan said that the United States will act in accordance with it "so long as the rights and freedoms of the United States and others under international law are recognized" by coastal nations.
It is your view that the United States is no longer generally bound by the limitations contained in the 1958 Convention. In written submissions to this office, you have identified several principles of international law that suggest that the 1958 Convention no longer constrains the extent of the contiguous zone of the United States. Given your expertise in this area, we are willing to defer to your conclusion about the nature of the obligations that the 1958 Convention now imposes on the United States.
Please let us know if we can be of further assistance. Sincerely,
John O. McGinnis
Deputy Assistant Attorney General
United States Department of State
Washington, D.C. 20520
April 5, 1989
To: L - Judge Sofaer
Through: L - Alan Kreczko
From: L/OES - David H. Small
Subject: Legality of Extending the U.S. Contiguous Zone
Under international law, may the United States extend its contiguous zone to 24 nautical miles notwithstanding the 12 mile rule stated in Article 24(2) of the 1958 Convention on the Territorial Sea and the Contiguous Zone? May the President constitutionally do so?
Yes, to both questions. Summary:
Under international law, a treaty rule may lose its effect if the parties accept an inconsistent customary norm and do not intend the treaty to constitute a special regime among themselves. The process has safeguards and allows written international law to be developed without creating unrealistic rigidity. Though various concerns prevented express codification of this principle in the Vienna Convention on the Law of Treaties, it has ample support. The 1958 Convention parties have accepted a norm permitting 24 nautical mile contiguous zones and are not applying Article 24(2) as a special regime. It no longer binds the U.S. internationally.
The Constitution does not generally constrain the President under a treaty where the treaty does not constrain the U.S. internationally. There were no Executive Branch representations to the Senate at the time of ratification that Article 24(2) was part of a special regime. Accordingly, Article 24(2) does not constitutionally bar Presidential proclamation of a 24 nautical mile contiguous zone.
The 24 nautical mile rule is not controversial and involves no vested rights. Congressional consultations indicated no substantive concern with it. The record of similar action by other parties to the 1958 Convention indicates that no other party will object.
I. International law
A. Supersession of the 12 nautical mile limit
The 24 nautical mile contiguous zone provision of the 1982 UN Convention on the Law of the Sea (LOS)(Article 33) was non-controversial in the LOS negotiations. The United States has accepted the 24 nautical mile contiguous zone rule as customary international law. See, e.g., Statement by the President, March 10, 1983, 19 Weekly Comp. Pres. Docs. 383 (recognizing the rights of coastal states as reflected in the 1982 LOS Convention); see also Restatement (3d), Foreign Relations Law of the United States, �511(b), comment(k), and Introductory Note to Part V (1988). Thirty-six states now have contiguous zones greater than 12 nautical miles.
Moreover, the parties to the 1958 Convention, in fact, accept the supersession of the 12 nautical mile rule of Article 24(2) among themselves: eleven parties have extended their zones beyond 12 miles; our recent survey of those parties turned up no reports of protests (except for a U.S. protest before we accepted the extended limits). To date, we have found no indication that any state party to the 1958 Convention is in the position of a "persistent objector" to the 24 nautical mile contiguous zone rule. A Dutch official recently expressed the prevailing international attitude: "[The Netherlands] has never objected to any country extending its contiguous zone beyond twelve miles; it assesses an extension of the contiguous zone equal to the territorial sea as consequential to the extension of the territorial sea." (The Hague 0100, 5 January 1989.)
The contiguous zone case has a direct analogue in the 1958 High Seas Convention and the 200 nautical mile exclusive economic (or fishing) zone. Such zones are recognized in the 1982 LOS Convention and are now claimed by one hundred and two states. Thirty-four of them, the U.S. included, remain party to the 1958 High Seas Convention, which is inconsistent with such zones, inter alia, in providing for freedom of fishing for all states (Article 2) in all parts of the sea beyond the territorial sea (Article 1). We surveyed these states party: their experience too was acquiescence, not protest since the mid-1970's. After the President's 1983 proclamation of our 200 mile EEZ, the United States received some objections to picking out a portion of the 1982 LOS "package deal", but these were not legal protests.
B. Theoretical bases for the supersession
These cases are not treated by the states party to the 1958 conventions or generally understood by international law authorities as involving treaty breach, at least by the states
which acted after the initial few extensions. A variety of theories, some overlapping, support this legal result.
1. Emergence of a new inconsistent customary rule modifying the operation of a prior treaty
Article 68(c) of the 1964 ILC draft articles on the law of treaties stated that "the operation of a treaty may be modified by "subsequent emergence of a new rule of customary law relating to matters dealt with in the treaty and binding upon all the parties." 2 ILC Yearbook 198 (1964); adopted unanimously, 1 ILC Yearbook 318 (1964). The government comments on this draft article and the comments of the ILC members on this and its predecessor (Article 73 of the Third Report on the Law of Treaties, 2 ILC Yearbook 53 (1964)) evidence acceptance of the rule as existing customary law, although there were some questions raised about the appropriateness of including it in the convention and some sentiment that it was more appropriately conceived of as a rule of interpretation than application or modification. See Annex: Summary of Consideration of Draft Law of Treaty Articles on Informal Modification, attached to this memorandum. The United States found the formulation "literally accurate and in keeping with the long recognized principle that treaties are to be applied in the context of international law and in accordance with the evolution of that law." Citing difficulties its codification might lead to, the U.S. suggested leaving the principle "to be applied under the norms of international law in general...." 2 ILC Yearbook 358 (1966), quoted in Annex, 3-4. The ILC later dropped Article 68(c) because "the question would in any given case depend to a large extent on the intentions of the parties" and the relation between customary and treaty norms was too complex, id. at 236; at the same time, the ILC broadened the interpretation article to encompass subsequent changes in law. Id. at 222, Annex, 5-6.
The principle is generally accepted. Case Concerning Delimitation of the Continental Shelf, (U.K./France), infra. 10; Restatement, � 102, Comment j; 1 Rousseau, Droit International-Public 344 (1970); Reuter, Introducion au Droit des Traites 117-118 (2nd ed. 1985); Schachter, General Course in Public International Law 178 Receuil des Cours 98 (1982); Thirlway, International Customary Law and Codification 130-142 (1972); Morelli, Observations on Treaty Termination, 1 Annuaire de l'Inst. de Droit Int'l 296-297(1967); Giraud, Modification et terminaison des traités collectifs, Annuaire 49, 54-59 (1961); R. Pinto, La Prescription en Droit International, 87 Receuil 431-432 (1955); Villager, Customary International Law and Treaties 207-234 (1985). The instances in which certain provisions of the 1958 LOS conventions have been displaced by new inconsistent customary rules are cited as prime examples of this principle in operation. Restatement, � 102, Comment j; Schachter, at 98; Villager, at 213.
One explanation of the principle is that the treaty and customary law rule are essentially equal sources and that the later will control in the case of incompatibility. Such a principle would be highly questionable if it operated without regard to the possible intent of the parties that a treaty provision remain binding among themselves. See, U.K. comment on article 68(c), 2 ILC Yearbook 345 (1966), and Sixth Report on the Law of Treaties, id. at 90. However, as the ILC made clear in dropping article 168(c) and encompassing subsequent law change in the interpretation articles, the principle's application depends largely on the parties' intent. This is reflected in the Restatement formulation: "A new rule of customary law will supersede inconsistent obligations created by earlier agreement if the parties so intend and the intention is clearly manifested." Restatement, �102, Comment j.
2. Properly interpreting a law-stating treaty as not originally intended to maintain a special régime
The result may also be explained as a matter of treaty interpretation, not modification, "taking into account" the customary factors: the treaty's object and purpose, subsequent practice in its application which establishes the agreement of the parties regarding its interpretation and any relevant rules of international law applicable in the relations between them. Vienna Convention, Article 31(3)(a),(b)and(c).
The purpose of parties in concluding a treaty may be to establish and maintain a special arrangement among themselves, for example a regional code of conduct. The emergence of a new inconsistent general rule of customary law, applicable in the relations of the regional arrangement parties with non-parties, would not supercede the regional code in the relations of the parties inter se, unless the new rule were a peremptory norm of international law. Vienna Convention, Article 64.
The general purpose of law-stating treaties, however, is
to render accessible, clarify, crystallize or develop general international law. Such treaty rules are drafted as general rule statements, e.g., "the contiguous zone shall not exceed twelve miles." They do not commit parties to persistent objection to emerging change: it is implicit that a treaty rule may became obsolete; the parties may accept an inconsistent norm, making the original object and purpose in stating the treaty rule impossible to achieve. To consider the parties bound inter se in those circumstances would artificially convert the treaty rule to a
special regime, absent reason to believe the parties intended it. Vamvoukos, Termination of Treaties in International Law 214 (1985) ("...even in a case where recourse to objective tests cannot justify an application of the rebus doctrine, one may reach the conclusion, by interpreting the treaty, that the changes are of such a nature that the continuation of the treaty would be incompatible with the original intention of the parties"). In the case of the 1958 law of the sea conventions, the parties' practice evidences agreement that the obsolete provisions were not intended as a special regime in these circumstances.
While this might appear to strain the line between interpreting a treaty and modifying its effects, it is consonant with the LOS process since the 1950's and is precisely the kind of interpretive possibility contemplated during the drafting of Vienna Article 31(3) and left open by its wording. The ILC deliberations indicate the close practical equivalence between modification of a treaty provision's effect by subsequent developments and modifying its interpretation. Annex 1, 4-6. This was also noted expressly during the Vienna Diplomatic Conference by Israel (Rosenne), in justifying dropping the proposed article on modification through subsequent practice: "A theoretical distinction certainly existed between subsequent practice as a means of interpreting a treaty and the modification of a treaty through subsequent practice in its application; but, in practice, the consequences were substantially the same, so that it did not seem necessary to insert a separate article." Official Records, U.N. Conf. on the Law of Treaties, Pt. 2, at 213. Also, Restatement, �334, Reporters' Note 2 ("The question of modification by subsequent practice tends to merge into that of interpretation by subsequent practice...."). The ILC shifted the reference to subsequent customary law several times between the draft articles on interpretation and modification; when it finally dropped the express reference to subsequent law from the modification article, it broadened the interpretation article to cover customary law both at the time of a treaty's adoption and as subsequently developed and did so with the understanding that "correct application of the temporal element would normally be indicated by the interpretation of the term in good faith." Report of the ILC, 2 ILC Yearbook 222-223 (1966); Annex, 6. The interpretation article was adopted in that form by the Vienna Diplomatic Conference. Annex, 6.
3. Subsequent practice establishing tacit consent of all the parties to modify the treaty's effect
The distinction between new inconsistent custom changing a treaty's interpretation and modifying its effect is of little practical significance, especially for states which accept the
broader principle, reflected in Article 68(b) of the 1964 ILC draft articles, that, even in cases where changed customary law is not involved, the effect of a treaty may be modified by "subsequent practice of the parties in the application of the treaty establishing their agreement to" the modification. 2 ILC Yearbook 198 (1964). That article, renumbered 38, was unfortunately worded and was deleted at the Vienna diplomatic conference. Some governments voiced constitutional concern about informal treaty amendment and some doubted its status as customary law. However, most governments commenting on the issue, including the U.S., accepted as custom that a treaty's effect may be modified by such practice. Annex p. 7.
Either this principle or one of the previously described bases for loss of treaty rule effect appears implicit in an H.M.G. response in the House of Lords on the relationship between the 1958 Territorial Sea Convention, to which the U.K. is party, and the 1982 LOS Convention, which it has not signed: "Where the elements figuring in the 1982 convention reflect generally accepted state practice, we would expect to observe them .... In order to assess the current position in international law one must look not only at the old convention but also at the extent to which modern state practice reflects the newer formulations in the 1982 convention." 58 Brit. Y.B. Int'l L. 612-613 (1987).
Omission of Article 38 from the Vienna Convention is, in any event, not conclusive. The Convention's preamble affirms "that the rules of customary international law will continue to govern questions not regulated by" its provisions. H. Thierry, S. Sur, J. Combacau, C. Vallee, Droit International Public, 4th ed., 98 ("Article 38 disappeared from the Convention because of the uncertainty it brought to written law. But the Convention is not exhaustive in this regard. This type of modification can perfectly well subsist under general international law, on condition that the agreement of the parties is clearly established.")(informal translation). Moreover, the Article 38 principle may be inferred from the well-accepted principle that treaties may be terminated by tacit agreement. The ILC considered that, when termination by obsolescence or desuetude occurred, it was based on the parties' consent to abandon the treaty, which was to be implied from their conduct and was covered by draft article 51(b) on termination by consent. 2 ILC Yearbook 237 (1966). With the addition of a procedural requirement of prior consultation, 51(b) was adopted as Article 54(b) of the Vienna Convention. Official Records, U.N. Conf. on the Law of Treaties, 1st Session, Part 2, at 476. The principle is well supported by other authority. E.g., McNair, The Law of Treaties 508 (1961) ("The termination of-a treaty may be implied from the conduct of the parties to it, though the implication more frequently arises from the conclusion
of a new treaty by the parties"); Brownlie, Principles of Public International Law 614-615 (3d ed. 1979); Schwarzenberger, A Manual of International Law 136-137 (6th ed. 1976); Thierry, et al., at 98; Vamvoukos, at 266-267, 276, 302-303; Villager, at 207-234; Weisburd, Customary International Law: The Problem of Treaties, 21 Vand. J. Trans. L. 20-22 (1988). As Shabtai Rosenne noted, "all [ILC] members seemed to admit that in one way or another obsolescence or desuetude could be used as a means of bringing a treaty to an end, and a fortiori as a means of modifying it." 1 ILC Yearbook 168(1966); see also Pinto, at 431 ("Abrogation of a treaty is obviously only a radical form of modification.")(informal translation).
As with interpretation, the process of modification or termination by subsequent practice may depend upon the nature of the particular treaty. "It would often be difficult to read into the conduct of the parties to a treaty a positive, if tacit, agreement to consider it as terminated, without some assistance from the character of the treaty itself, as being or not being one which the parties would be inherently likely to regard in that light." Vamvoukos, at 267. Problems should not arise unless a party were to dispute that past conduct showed tacit agreement to the change, in which case "the inherent character of the treaty" would become important in objectively determining the parties" intent. Id.
4. Suspending operation of a treaty provision as a response to material breach.
The actions of the first few parties to deviate from a treaty norm may be in a legal gray area. If those actions are considered in material breach, the remaining practice may be viewed as a lawful response by tacit agreement, consistent with customary law reflected in Article 60(2)(a) of the Vienna Convention, which provides: "[a] material breach of a multilateral treaty by one of the parties entitles ... the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part ... as between all the parties." (For a party to the Vienna Convention, Article 65 requires notice.)
5. Loss of treaty provision force through estoppel.
While original intent or later tacit consent of the
parties may adequately explain modification of the effect of a treaty provision, estoppel may be the underlying principle in cases such as the 1958 LOS Conventions. "A considerable weight of authority supports the view that estoppel is a general principle of international law, resting on principles of good faith and consistency and shorn of the technical features to be found in national law." Vamvoukos, at 294; See, separate opinions of Fitzmaurice and Alfaro and authorities cited therein, Case
concerning the Temple of Preah Vihar, 1962 ICJ Reports 30-51, 62-66. "The primary foundation" of estoppel or waiver of right by failure to protest "is the good faith that must prevail in international relations." Alfaro, at 44. Estoppel is implicit in, not a derogation from, the principle pacta sunt servanda, of which good faith is also a fundamental element. Thus, at the Vienna Conference, Sir Humphrey Waldock "expressed surprise that some delegations should think article 38 constituted a quasi-violation of the principle pacta sunt servanda, especially as the legal basis of the article was good faith. The provision was based on the principle that a State which had taken up a position on a point of law, particularly in the interpretation of treaties, and allowed another State to act in accordance with that understanding of the legal position, could not go back on its representation of the legal position and declare the act performed illegal." Official Records, 215; Annex, 11.
In the present case, both the parties which have already extended their contiguous zone and those which have acquiesced would be estopped from objecting to an extension of the U.S. contiguous zone to 24 nautical miles. "The absence of protest may ... in itself become a source of legal right inasmuch as it is related to - or forms a constituent element of - estoppel or prescription." Lauterpacht, Sovereignty over Submarine Areas, 27 Brit. Y.B. Int'l L. 393-398. (1950). The extensions were formal open state actions, monitored by many maritime states--and by the U.N. Secretariat, which disseminated the information to all member states. The eleven parties which extended their contiguous zone asserted a jurisdictional right over the vessels of the other parties and, with the acquiescing parties, contributed to the demise of the 12 nautical mile limit as actual or potential customary law. Given their conduct, for parties to invoke Article 24(2) against new contiguous zone extenders would be discriminatory and abuse the "good faith" element of pacta sunt servanda.
Under all these approaches, the subsequent developments modify the operation or application of the treaty provision, not the treaty provision itself. See, e.g., H. Briggs, 1 ILC Yearbook 165 (1966), and Statement of Netherlands, Official Records, 213, summarized Annex, 10. The distinction between modifying a treaty and modifying its effect may be unimportant except to avoid unnecessary doctrinal issues, such as the alleged principle of "formal parallelism" that "modifications of a treaty at the domestic level should follow the same procedure as the original text." See, Statement of France, Official Records, 208-209, summarized Annex 7. In the case of
law-stating treaties, the unmodified convention provision ceases to
be internationally controlling; the new norm, as custom, becomes controlling for the parties. "At that stage, denunciation clauses, or other formal means provided for amending or terminating the convention will have become irrelevant; failure to invoke them produces inconclusive results, since the conventional rule is ex hypothesi no longer in force." Villager, at 215-216.
C. Arbitral and Judicial Precedent
The possibility of lawful change in the effect of a treaty, without formal textual amendment, is confirmed by substantial judicial and arbitral precedent.
In the Case concerning the Temple of Preah Vihar, 1962 ICJ Reports 6, 33-34, the I.C.J. held that Thailand had acquiesced by its conduct in a French map which placed the temple in Cambodia. The map "adopted an interpretation of the treaty settlement which caused the map line, in so far is it may have departed from the line of the watershed, to prevail over the relevant clause of the treaty." The Court explained that it could have reached the same result were it to deal with the matter "as one solely of ordinary treaty interpretation."
In the Case Concerning the Interpretation of the Air Transport Services Agreement, (U.S. and France), XVI Reports of Int'l Arbitral Awards 6, 62-63 (1963) (Ago, President; Reuter and de Vries), the tribunal found that subsequent practice had given the United States a legal route right which could not be derived by interpreting the air transport agreement. It stated that a course of conduct "may in fact be taken into account not merely as a useful means for interpreting the Agreement, but also ... as a possible source of a subsequent modification, arising out of certain actions or certain attitudes, having a bearing on the juridical situation of the Parties and on the rights that each of them could properly claim".
In its Namibia advisory proceeding, 1971 ICJ Reports 16, 22, the I.C.J., despite Article 27(3) of the Charter which requires the "affirmative vote" of the permanent members, accepted an advisory opinion request made by the U.N. Security Council through a vote in which a permanent member abstained. The Court stated that "presidential rulings and the positions taken by members of the Council, in particular its permanent members, have consistently and uniformly interpreted the practice of voluntary abstention by a permanent member as not constituting a bar to the adoption of resolutions."
In the Case Concerning the Delimitation of the Continental Shelf, (U.K. and France), XVII Reports of Int'l Arbitral Awards 3, 37 (1977)(Castren, President; Briggs, Gros, Ustor, Waldock), the Court recognized "the importance of the evolution of the law of the sea which is now in progress and the possibility that a development in customary law may, under certain conditions, evidence the assent of the States concerned to the modification, or even termination, of previously existing treaty rights and obligations." However, the Court rejected the contention of France that this had by then occurred with the 1958 Continental Shelf Convention.
D. The legal policy
The possibility that an obsolete treaty norm will lose its legal force meets the concern that use of conventions to codify and develop customary law would rigidify that law unduly, but does not introduce harmful instability. Villager, at 225; see also Rousseau, at 348-352. Law must adapt to the evolving needs of the international community. "It would clearly be rash to assume that international law in codified form, however great the care and effort with which it is prepared and drafted, will remain the most satisfactory solution of the problems with which it attempts to grapple, whatever changes may occur in international relationships." Thirlway, at 125. Amendment of a multilateral treaty is cumbersome and often impracticable for reasons which have nothing to do with the viability of a particular treaty norm. Requiring denunciation to escape one obsolete provision would unnecessarily destroy an otherwise valuable convention. Emergence of new custom and obsolescence of an inconsistent treaty rule require substantial open state practice and do not arise out of capricious action by one party over the objection of others. Dissenters have significant ability to preserve their customary law position from an emerging norm and even greater ability to protect their treaty position from loss through tacit agreement or estoppel.
Although one must be careful about the circumstances in which the principle is invoked, customary law permits the international legal effect or operation of a treaty provision to change through subsequent developments among the parties, particularly their acceptance of a customary norm inconsistent with a general norm stated by treaty.
This has occurred with regard to Article 24(2) of the 1958 Convention on the Territorial Sea and the Contiguous Zone: having accepted the new customary law norm and its enjoyment by those eleven parties which have already extended their contiguous
zones beyond twelve miles, the parties are no longer legally in a position to invoke the convention's twelve mile language to bar similar action by another party.
Finally, should a party dispute our understanding of its position, the issue would be whether to refrain from exercising contiguous zone jurisdiction over its vessels, not whether to refrain from adopting that jurisdiction as a general matter.
II. Constitutional Issues
As a general matter, the President has "the power to determine how far this country will claim territorial rights in the marginal sea as against other nations." United States v. Louisiana, 363 U.S. 1, 35 (1960); see also Proclamation 5928, December 27, 1988 (extending the U.S. territorial sea to 12 nautical miles). A fortiori, the President has the power to extend a maritime jurisdiction under international law which is less than full sovereignty, such as the contiguous zone. This has been done by Presidential action with respect to the exclusive economic zone. Proclamation 5030, March 10, 1983.
The question has been raised, however, whether Article 24(2) of the 1958 Territorial Sea Convention limits the President's authority to extend the contiguous zone beyond 12 nautical miles. That it does not do so in present circumstances flows from two constitutional considerations: first, the President may unilaterally determine for the United States that Article 24(2) no longer binds the United States as a matter of international law; and second, a treaty provision's force in domestic law is generally no greater than its international law force.
A. Presidential Authority to Act on the International Plane
It is well-established that the President is "the sole organ of the federal government in the field of international relations." United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936); see also 10 Annals of Congress 613 (1800) (Representative John Marshall) (President "the sole organ of the nation in its external relations, and its sole representative with foreign nations"), rpt. in 18 U.S. (5 Wheat.) Appendix note 1, at 26.
The President's constitutional authority to act for the United States in international relations includes the power to engage in state practice that contributes to or dissents from the establishment of customary norms, as well as the power to assess the customary norms relevant to United States action. As a leading scholar has stated,
"It is principally the President, 'sole organ' of the United States in its international relations, who is responsible for the behavior of the United States in regard to international law, and who participates on her behalf in the indefinable process by which customary international law is made, unmade, remade. He makes legal claims for the United States and reacts to the claims of others; he performs acts reflecting views on legal questions and justifies them under the law, in diplomatic exchange, in judicial or arbitral proceedings, in international organizations or in the public forum."
L. Henkin, Foreign Affairs and the Constitution 188 (1972). His constitutional authority also includes significant power with relation to the operation of treaties. As Alexander Hamilton stated:
"[The President's] power of determining virtually upon the operation of national treaties, as a consequence of the power to receive public ministers, is an important instance of the right of the executive to decide upon the obligations of the country with regard to foreign nations. Hence ..., treaties can only be made by the President and Senate jointly, but their activity may be continued or suspended by the President alone."
A. Hamilton, Letters of Pacificus and Helvidius on the Proclamation of Neutrality of 1793, at 12-13 (Gideon ed. 1845). But cf. Taylor v. Morton, 23 Fed. Cas. 784, 786 (C.C. Mass. 1855); 4 Moore, Digest of International Law 321 (1906) (quoting Jan. 2, 1791, letter of James Madison intimating that Senate must participate in decision to declare a treaty void).
At the extreme, it is often asserted that a President has the general authority to terminate treaties on behalf of the United States. See L. Henkin, supra, at 168-69 and notes; 2 C. Hyde, International Law Chiefly as Interpreted and Applied by the United States 1519-20 (2d ed. 1945); Restatement (Third) of the Foreign Relations Law of the United States, � 115, Reporters' Note 3; cf. Goldwater v. Carter, 617 F.2d 697 (D.C. Cir.)(en banc)(President has power to terminate treaty in order to recognize foreign state), vacated on other grounds, 444 U.S. 996 (1979). While this has never been specifically approved by the courts, there are numerous instances in which the President has terminated a treaty unilaterally. See Declaration of Arthur Rovine, Goldwater v. Carter, Civ. No. 78-2412 (D.D.C. 1979)(of 25 instances of Presidential actions to terminate treaties, in twelve cases the President acted unilaterally), rpt. in U.S. Foreign Relations Law: Documents and Sources 513 (M. Glennon & T. French eds. 1980).
Acts in exercise of the foreign relations power may contribute to the modification or termination of a treaty provision. For example, when another party acts inconsistently with a treaty provision, it is the President who must determine whether it constitutes a material breach. Since such breach renders a treaty voidable but not void, a decision must also be made on the appropriate response under international law, e.g., suspension or termination of the agreement in whole or in part or acquiescence or waiver on behalf of the United States. It is settled that the President has the power to waive the right of the United States to terminate a treaty for breach by another party. Charlton v. Kelly, 229 U.S. 447, 474-76 (1913) ("The executive department having thus elected to waive any right to free itself from the obligation to deliver up its own citizens, it is the plain duty of this court to recognize the obligation to surrender the appellant...."). Implicit in this is the view that the executive can exercise the U.S. right rather than waive it. But cf. Taylor v. Morton, 23 Fed. Cas. 784, 786 (C.C. Mass. 1855)stating in dicta that "no body other than congress possesses [the power of repealing treaties operating as part of municipal law]"). If he acquiesces in general violations of the treaty by the other parties, this can have the effect of terminating the treaty obligation. See 5 Hackworth, Digest of International Law 340-41; 14 M. Whiteman, Digest of International Law 441 (1970).
"The President is, of course, without authority, except by and with the advice and consent of the Senate, to modify a treaty provision. There are, however, instances in which he, acting through the Secretary of State, has tacitly acquiesced in action by foreign governments which had the effect of modifying stipulations in our treaties."
Memorandum of the Solicitor for the Department of State(Hackworth), Feb. 28, 1931, quoted in 5 Hackworth, supra, at 340.
The Court has also deferred to the executive branch in determining whether a treaty was abrogated due to the outbreak of war, Clark v. Allen, 331 U.S. 503, 508-09 (1947) (although the outbreak of war does not "necessarily suspend or abrogate treaty provisions," the executive may formulate a national policy "inconsistent with the enforcement of a treaty in whole or in part"), or was abrogated by the operation of law, due to the absorption of the other party into another state, Terlinden v. Ames, 184 U.S. 270 (1902) (Court was without power to review the validity of a treaty if the practice of the parties indicated that they recognized the treaty as in force). Similarly, during World War II, the Attorney
General ruled that the President had the authority to suspend or declare inoperative a peacetime treaty on the grounds of rebus sic stantibus. 40 Op. Att'y Gen. 119 (1941). As the Attorney General stated:
"Attention to the observance of treaties is an executive responsibility.... The facts which bring into operation the right to declare the convention inoperative or suspended, are within the knowledge of and can be promptly and adequately appraised by the executive department; and it is proper that the President, as 'the sole organ of the nation in its external relations,' should speak for the nation in announcing action which international law clearly permits."
Id. at 123.
Another relevant and more routinely exercised aspect of the President's foreign affairs power is that the President has the initial and primary responsibility to interpret and apply treaty provisions. The President has submitted treaty construction issues to the Senate only in exceptional instances. S. Crandall, Treaties, Their Making and Enforcement 369 (2d ed. 1916). While courts may interpret treaty provisions in the context of cases properly before them, they have traditionally given great weight to the interpretations of the Executive Branch. See Sullivan v. Kidd, 254 U.S. 433 (1921); Charlton v. Kelly, 229 U.S. 447, 468 (1913); Whitney v. Robertson, 124 U.S. 190, 194-95 (1888); Restatement 326; L. Henkin, supra, at 167. Were the issue to arise before our courts, substantial deference would be given to the Executive Branch view that the 1958 Territorial Sea Convention was adopted as a law-stating treaty and was not intended to constitute a special regime, particularly given that no contrary interpretation was presented to the Senate during the ratification process. See Four Conventions and an Optional Protocol Formulated at the United Nations Conference on the Law of the Sea, Message of the President, Exec. J-N, 86th Cong. 2d Sess. (1959) (Conventions were mixture of codification of existing law and progressive development); Law of the Sea Conventions, Rpt. of the Senate Comm. on For. Rel., Exec. Rpt. No. 5, 86th Cong. 2d Sess. (1960); Conventions on the Law of the Sea, Hearings before the Senate Comm. on For. Rel., 86th Cong. 2d Sess. (1960) (testimony of Arthur Dean, head of U.S. delegation to UN Law of Sea Conference).
Thus, in the context of the contiguous zone extension, the President, as the "sole organ of the United States in its external relations," has the constitutional authority (1) to determine that customary international law now permits a 24 nautical mile
Contiguous zone, (2) to assess the intent of the 1958 Convention parties regarding the preservation of Article 24(2) as a special regime, (3) to acquiesce in conduct by other parties inconsistent with the wording of the 1958 Territorial Sea Convention, thereby leading to the termination of Article 24(2) by estoppel and (4) to decide that Article 24(2) no longer is operative under international law for the United States.
B. Treaties as Domestic Law
Article VI of the Constitution declares that treaties are among the "supreme law of the land." Although this provision appears largely to have been intended to ensure that the states abide by federal treaty obligations, see S. Crandall, Treaties,Their Making and Enforcement 153 (2d ed. 1916); L. Henkin, supra, at 129, treaties are viewed as on a par with statute, and, if self-executing, can be given direct effect by U.S. courts. Moreover, treaties are among the laws that the President must "faithfully execute." U.S. Constitution, Art. II, sec. 2; see Restatement (Third), at � 111, comment c ("That international law and agreements of the United States are law of the United States means . . . that the President has the obligation and the necessary authority to take care that they be faithfully executed.").
The status of treaties as law of the land, however, does not mean that they are in all respects equivalent to statutes. Treaties are, at root, compacts among sovereigns. Head Money Cases, 112 U.S. 580, 598 (1884); Federalist No. 75. They become the law of the land through the combined action of the President and Senate -- the "fourth branch of government" as Hamilton called it. See L. Henkin, supra, at 130. More importantly, their status as "law of the land" depends on their status as international law. Except perhaps with respect to treaties that create vested rights, "[a] rule of international law or an international agreement has no status as law of the United States if the United States is not in fact bound by it: for example, ... a provision in a treaty that is invalid or has been terminated or suspended." Restatement (Third), at � 111, comment b; see also id. at � 339, Reporters' Note 1; L. Henkin, supra, at 160 ("The status of a treaty as law of the land derives from and depends on its status as a valid, living treaty of the United States.... It is not law of the land if it is not an effective treaty of the United States internationally because it is not binding, or is invalid under international law, or because it has expired, or has been terminated or destroyed by breach, whether by the United States or the other party."); cf. S. Crandall, supra, at 446 (if rights vested under treaty, these rights not terminated by treaty termination); Society for Propagation of the Gospel v. Town of New Haven, 21 U.S.(8 Wheat.) 464, 491 (1823) (termination of treaty, like repeal of municipal law, does not divest property rights vested under it).
Based on these principles, it follows that, if Article 24(2) of the 1958 Territorial Sea Convention has been superseded on the international plane by a new rule of customary international law permitting a 24 nautical mile contiguous zone, then Article 24(2) no longer has effect as a law of the United States and need not be "faithfully executed" by the President. Henkin, supra, at 168 note (President's duty to see that treaties are faithfully executed ceases to apply if President terminates the treaty pursuant to his foreign affairs powers).
It is important to note that to reach this conclusion one need not reach the question of whether customary international law will supersede a statute. See Paquete Habana, 175 U.S. 677, 700 (1900) (only resort to customary international law if there is "no controlling executive or legislative act"). Treaty and custom both operate on the international plane and, on that plane, the customary norm can supersede the treaty norm; this terminates the domestic legal effects of the treaty because those effects are derivative of the treaty's status as binding under international law. In contrast, statutes derive their effect from independent action of domestic institutions. The effect of changed custom on an earlier statute involves a different constitutional question, whether domestic and customary international law have the same status or whether they stand in a hierarchical relationship.
While it has not been authoritatively determined that the emergence of a new rule of customary international law which supersedes a treaty provision on the international plane also has the effect of superseding the treaty provision as a matter of domestic law, there seems, not surprisingly, to be no authority for the contrary proposition. It would be anomalous to have our domestic law on the obligations of the United States vis-a-vis other nations derive from but become more restrictive than our international law obligations. Where (i) the treaty has not created vested rights, (ii) the new rule of customary international law is clearly recognized as internationally controlling by the executive and (iii) there were no contrary assurances on which the Senate relied in granting advice and consent, there is no good reason to adopt a constitutional rule creating such an anomaly. Because treaties are, at root, compacts among sovereigns, it is appropriate that the President, "sole organ" of the United States in its foreign relations, have wider powers with respect to treaties than statutes.
In light of the international legal considerations set forth in the first section of this memorandum, Article 24(2) has lost its controlling effect internationally for the United States.
The Constitution does not provide Article 24(2) with independent continuing legal force and, therefore, does not require the President to refrain from exercising his foreign affairs power to extend the contiguous zone of the United States beyond the 12 nautical mile limited stated in that Article.