In the current issue of the Yale Law Journal, Daniel Hessel (Yale Law School J.D. '16): Founding-Era Jus Ad Bellum and the Domestic Law of Treaty Withdrawal (125 Yale Law Journal 2394 (2016)). Here is the abstract:
The Constitution provides no textual guidance for how, as a matter of domestic law, the United States can withdraw from an Article II treaty. The Supreme Court has not clarified matters. In the face of this uncertainty, government officials and scholars alike have long debated whether the President may unilaterally withdraw from a treaty or whether Congress has a role to play. This Note contributes to the debate by examining the relationship between treaty withdrawal and war powers through an originalist lens. Through close assessment of the contemporaneous jus ad bellum, the Note concludes that, at the Founding, treaty withdrawal presented a clear justification for war. Treaty withdrawal therefore implicates the War Powers Clause, which assigns primary responsibility for initiating war to Congress. Because the Founders and their contemporaries likely saw treaty withdrawal as a matter of war and peace, and because the Constitution entrusts Congress with the power to commence war, this Note concludes that the original understanding of the Constitution supports a role for Congress in treaty withdrawal.
Another interesting and well-executed originalist student note on foreign affairs law (see previously here). I like this one too, but frustratingly it does not adequately distinguish between treaty withdrawal (that is, exit from a treaty regime by the terms of the treaty) and treaty abrogation (that is, exit from a treaty regime in violation of the terms of the treaty). As I've urged in my scholarship, these are best regarded as two different powers; even if one concludes (contrary to my view) that one entity holds both of them, the arguments in support are going to be different.
This note is an example of the importance of the difference. I think it plausible that abrogation (withdrawal contrary to a treaty's terms) was a justification for initiating war in the eighteenth century, as it constituted a violation of a sacred promise (in Vattel's phrase). I do not think it plausible that withdrawal from a treaty in accordance with its terms constituted a justification for initiating war (at least not categorically). In eighteenth-century international law treaties were voluntary arrangements and if the treaty allowed withdrawal, then no offense should be taken by the other treaty party — and clearly no international law right would be violated – in the case of a permitted withdrawal. While there might be circumstances in which a permitted withdrawal nonetheless signaled a level of hostility sufficient to permit hostilities in response, those would be unusual circumstances.
Posted at 6:50 AM