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International Agreements* LAW LIBRARY JOURNAL Vol. 108:3 [2016-17] Understanding the “Other” International Agreements* Ryan Harrington** The United States regularly concludes agreements with foreign states that are not ratified pursuant to the Treaty Clause, which leaves many researchers with a cloudy understanding of the agreements and their legal status. This article explains varia- tions in international agreement forms and provides advice on locating the agreement texts and the instruments that give the President’s agreements legal effect. Introduction .......................................................344 An Overview of “Other” International Agreements ........................347 Ex Post Congressional-Executive Agreements Become Law After Approval by Both Houses of Congress ............................347 Sole Executive Agreements Are Valid Pursuant to the Executive’s Constitutional Authority. .347 Ex Ante Congressional-Executive Agreements Authorize the President to Conclude an Agreement Without Any Further Congressional Action .......................................................348 Political Commitments Are Nonlegally Binding Agreements Concluded Without Congressional Involvement ..............................349 Standards and Requirements for the Creation of “Other International Agreements” ....................................................350 Circular 175 ......................................................351 Limited Reporting Requirements of the Case Act .......................352 Finding “Other” International Agreements ..............................353 Ex Post Congressional-Executive Agreements and Their Approval Acts ���������354 Sole Executive Agreements .........................................356 Authorizations for Ex Ante Congressional-Executive Agreements .........357 Political Commitments ............................................358 Conclusion ...........................................................359 * © Ryan Harrington, 2016. This is a revised version of a winning entry in the open division of the 2015 AALL/LexisNexis Call for Papers Competition. I am very grateful for the comments and suggestions of Gabriela Femenia, Sarah Ryan, Cate Kellett, Jordan Jefferson, and Fred Shapiro. ** Head of Foreign and International Law, Yale Law Library; Lecturer in Legal Research, Yale Law School, New Haven, Connecticut. 343 344 LAW LIBRARY JOURNAL Vol. 108:3 [2016-17] Introduction ¶1 On November 6, 2013, the United States deposited an “instrument of acceptance”1 with the United Nations to indicate its consent to be bound to the Minamata Convention, a treaty “to protect human health and the environment from the adverse effects of mercury.”2 The instrument of acceptance never passed through the Senate chamber for advice and consent because the executive branch insisted it could “implement Convention obligations under existing legislative and regulatory authority.”3 In other words, the executive branch not only negotiated and signed the Convention outside of the purview of the Treaty Clause in Article II of the U.S. Constitution, but it also bound the United States to the terms of the agreement without ratification from the Senate.4 ¶2 Similarly, the Office of the United States Trade Representative has repeatedly announced that the Anti-Counterfeiting Trade Agreement (ACTA) is consistent with existing U.S. law and is ready for implementation in the United States.5 The executive branch believes it has the authority to implement the Act without con- gressional action, although no academic commentators have agreed.6 ¶3 These two examples raise interesting questions about the way the United States concludes international agreements. This article seeks to shed light on the process and legality of these “other international agreements”—a term pulled from the official treaty publications series, United States Treaties and Other International Agreements. As the name of the series suggests, treaties, which this article will sub- sequently refer to as “Article II treaties,” are but one part of the range of inter- national agreements. In fact, Article II treaties comprise only a microcosm of this body of law, perhaps as little as 6.2% of the whole.7 1. Under international law, “acceptance” is an appropriate manner by which a state can consent to be bound to a treaty. See, e.g., Vienna Convention on the Law of Treaties, art. 14, May 23, 1969, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980). 2. Minamata Convention on Mercury, Jan. 19, 2013, http://www.mercuryconvention.org /Convention/tabid/3426/Default.aspx [https://perma.cc/R4C2-H3WX]. 3. Press Release, Office of the Spokesperson, U.S. Dep’t of State, United States Joins Minamata Convention on Mercury (Nov. 6, 2013), http://www.state.gov/r/pa/prs/ps/2013/11/217295.htm [https://perma.cc/2MND-AY2S]. 4. U.S. CONST. art. II, § 2, cl. 2 (providing that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur”). 5. “As noted, the ACTA is consistent with existing U.S. law and does not require the enact- ment of implementing legislation. The United States may therefore enter into and carry out the requirements of the Agreement under existing legal authority, just as it has done with other trade agreements.” ACTA: Meeting U.S. Objectives, OFFICE OF THE U.S. TRADE REPRESENTATIVE (Oct. 1, 2011), https://ustr.gov/about-us/policy-offices/press-office/fact-sheets/2011/september/acta-meeting-us -objectives [https://perma.cc/TV2U-PFWL]. 6. See, e.g., Christina Eckes, Elaine Fahey & Machiko Kanetake, International, European, and U.S. Perspectives on the Negotiation and Adoption of the Anti-Counterfeiting Trade Agreement (ACTA), 20 CURRENTS: INT’L TRADE L.J. 20 (2012); Sean Flynn, ACTA’s Constitutional Problem: The Treaty Is Not a Treaty, 26 AM. U. INT’L L. REV. 903 (2011); Joseph P. Johnson, The Anti-Counterfeiting Trade Agreement and Its Constitutional Dilemma, 67 CONSUMER FIN. L.Q. REP. 441 (2013); Eddan Katz & Gwen Hinze, The Impact of the Anti-Counterfeiting Trade Agreement on the Knowledge Economy: The Accountability of the Office of the U.S. Trade Representative for the Creation of IP Enforcement Norms Through Executive Trade Agreements, 35 YALE J. INT’L L. ONLINE 24 (2009). 7. The study of agreements concluded between 1946 and 1973 found that almost eighty-seven percent of all international agreements were executive agreements entered into by the President under Vol. 108:3 [2016-17] UNDERSTANDING THE “OTHER” INTERNATIONAL AGREEMENTS 345 ¶4 If Article II treaties comprise such a small portion of the total body of inter- national agreements, how can it be that researchers know so little about the other forms? The largest examination of international agreement–making in the United States appeared in this journal in 1993, when Professor Erwin Surrency devoted four paragraphs to the phenomenon of these other international agreements, focusing specifically on congressional-executive agreements.8 There is nothing in the literature about legal apparatuses that enable the creation of the other forms and nothing that would guide a researcher through legal obstacles to implementa- tion of the Minamata Convention or the ACTA, referenced above.9 ¶5 Even researchers who are aware of the sphere of international agreement– making outside of the Article II purview might be unaware of the distinctions in the forms of agreements. Professionals in the field use nomenclature such as “executive agreements” and “congressional-executive agreements” that only further muddies the waters because there are actually several types of executive agreements, and the distinctions between them are critical to understanding their legal legiti- macy. There are “executive agreements” that the President is entitled to conclude from his constitutional powers. These are otherwise known as “sole executive agree- ments.” Then there are congressional-executive agreements: agreements concluded by the President with congressional authorization.10 However, there are two types of congressional-executive agreements, and they operate fundamentally differently. The first, “ex ante” agreements, are similar to “sole executive agreements” because the President operates pursuant to preexisting authority.11 With ex ante agreements, the legislative branch has already passed an authorizing statute that the President signed into law. The President subsequently uses that authority to negotiate and conclude an international agreement. Once the President concludes an ex ante statutory authority granted by Congress. LOCH K. JOHNSON, THE MAKING OF INTERNATIONAL AGREE- MENTS 12–13 (1984). A second famous, but also dated, study found that “the overwhelming propor- tion of international agreements are based at least partly upon statutory authority (88.3 percent of agreements reached between 1946 and 1972), followed by treaties (6.2 percent) and agreements based solely on executive authority and action (5.5 percent).” R. ROGER MAJAK, 95TH CONG., INTERNATIONAL AGREEMENTS: AN ANALYSIS OF EXECUTIVE REGULATIONS AND PRACTICES 22 (Comm. Print 1977). 8. Erwin C. Surrency, How the United States Perfects an International Agreement, 85 LAW LIBR. J. 343, 348 (1993). The second part of this article covers congressional-executive agreements. Surrency does specifically allude to what I call political commitments: Other documents of significance in the conduct of international affairs are those declaring poli- cies that the parties intend to pursue. For example, the Final Act
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