A. CONCLUSION, ENTRY INTO FORCE, AND RESERVATIONS · 2019. 9. 6. · rights treaties to which they are a party, as well as other obligations of States under international law. Similarly,

Table of Contents

CHAPTER 4 ............................................................................................................................. 120

Treaty Affairs ........................................................................................................................ 120

A. CONCLUSION, ENTRY INTO FORCE, AND RESERVATIONS ............................. 120

1. U.S. Objections to Palestinian Authority Efforts to Accede to Treaties .......................... 120

2. U.S. Reservation to SPAW Protocol.............................................................................. 121

3. 2030 Agenda for Sustainable Development ................................................................... 122

4. Joint Comprehensive Plan of Action with Iran............................................................... 123

5. U.S.-France Agreement on Compensation for Holocaust-Related Deportation ............... 126

6. U.S. Statement on Multilateral Treaties and the Rule of Law ......................................... 126

7. ILC Work on the Law of Treaties ................................................................................. 128

B. LITIGATION INVOLVING TREATY LAW ISSUES ........................................... 131

1. Abu Khatallah .............................................................................................................. 131

2. Patookas v. Teck Cominco ............................................................................................ 135

3. Crawford v. U.S. Department of the Treasury ............................................................... 137

Cross References ................................................................................................................... 141

CHAPTER 4

Treaty Affairs

A. CONCLUSION, ENTRY INTO FORCE, AND RESERVATIONS

1. U.S. Objections to Palestinian Authority Efforts to Accede to Treaties

On January 6, 2015, the Palestinian Authority tendered instruments of accession by the “State of Palestine” to six multilateral treaties. The United States communicated objections to the purported accessions on the basis that the United States does not believe the “State of Palestine” qualifies as a sovereign state and therefore considers the Palestinian Authority ineligible to become a party to multilateral treaties for which accession is limited to sovereign States. The U.S. objections relating to those treaties to which the United States is a party further indicate that the United States does not consider itself to be in a treaty relationship with the “State of Palestine” under those treaties.

On January 15, 2015, the United States sent objections to the United Nations with respect to: the Convention on the Political Rights of Women, done at New York, March 31, 1953; the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York, June 10, 1958; the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, done at New York, December 14, 1973; the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects, done at Geneva, October 10, 1980 and its Protocols I and III thereto; the United Nations Convention Against Transnational Organized Crime, done at New York, November 15, 2000; and the Rome Statute of the International Criminal Court, done at Rome, July 16, 1998. Copies of the objection notes are available at www.state.gov/s/l/cB183.htm.

On December 28, 2015, the U.S. Embassy in The Hague addressed to the Ministry of Foreign Affairs of the Netherlands the U.S. objection to the purported accession of

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DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 121

the “State of Palestine” to the Convention for the Pacific Settlement of International Disputes, done at The Hague, October 18, 1907, for which the Netherlands serves as depositary. Excerpts follow from the December 28 note from the United States to the Ministry of Foreign Affairs of the Kingdom of the Netherlands. The note in its entirety is available at www.state.gov/s/l/cB183.htm.

* * * *

The Government of the United States of America does not believe the “State of Palestine” is

qualified to accede to the Convention.

Consistent with Article 93 of the Convention, accession to the Convention was initially

limited to “powers invited to the Second Peace Conference,” convened in The Hague in 1907.

Article 94 of the Convention further provides that, “The conditions on which the powers which

have not been invited to the Second Peace Conference may adhere to the present convention

shall form the subject of a subsequent agreement between the Contracting Powers.”

At a March 3, 1960 meeting, the Administrative Council of the Permanent Court of

Arbitration, having consulted all parties to the two Hague conventions on the pacific settlement

of disputes, decided that after March 15, 1960, the Government of the Netherlands would invite

members of the United Nations which did not participate in the activities of the Permanent Court

of Arbitration to declare (1) whether they considered themselves parties to the 1899 or 1907

Hague conventions on pacific settlement of disputes, or, if this were not the case, (2) whether

they were willing to adhere to these conventions or to one of them. On the basis of this

subsequent agreement of the parties to the Convention, eligibility to accede to the Convention

has been extended to UN member states.

The Government of the United States is not aware of any subsequent decision of the

parties to the Convention to extend eligibility to accede to the Convention to entities that are not

members of the United Nations. The “State of Palestine” is not a member of the United Nations.

Further, the Government of the United States does not believe the “State of Palestine” qualifies

as a sovereign State and does not recognize it as such. Because the “State of Palestine” is neither

a “power invited to the Second Peace Conference” nor a member of the United Nations, it is not

eligible to accede to the Convention.

The Government of the United States believes that the Kingdom of the Netherlands, in its

capacity as depositary of the Convention, should not list the “State of Palestine” as a party to the

Convention. Accordingly, the Government of the United States affirms that it would not consider

the “State of Palestine” to be a party to the Convention and would not consider itself to be in a

treaty relationship with the “State of Palestine” under the Convention.

* * * *

2. U.S. Reservation to SPAW Protocol

On March 3, 2015, the United States notified Colombia, as depositary for the Protocol Concerning Specially Protected Areas and Wildlife (“SPAW”) to the Convention for the

http://www.state.gov/s/l/cB183.htm


Protection and Development of the Marine Environment of the Wider Caribbean Region, done at Kingston January 18, 1990, that it was entering a reservation to the listing of ten species in Annex II and Annex III of the Protocol, as decided by the SPAW Conference of Parties on December 9, 2014. The United States entered its reservation pursuant to Article 11.4(d) of the SPAW Protocol. The ten species are identified in the March 3, 2015 letter from Judith G. Garber, Acting Assistant Secretary of State, to Maria Angela Holguín Cuéllar, Minister of Foreign Affairs for the Republic of Colombia, available at www.state.gov/s/l/c8183.htm. The letter explains:

This reservation is based on the concern of the United States that the decision to list these ten species was the outcome of a process that failed to follow the procedures for listing that are set forth in Article 11.4 of the Protocol.

Article 11.4(a)-(c) of the SPAW Protocol details the following procedures for amending the annexes… The Parties elaborated on these procedures in a set of guidelines adopted in 2014.

The ten species in question were added to the annexes without a formal nomination by any Party, without the requisite supporting documentation, and without the [Scientific and Technical Advisory Committee’s or] STAC’s review. The failure to follow the procedures for listing as set forth in Article 11.4 prevented the United States from conducting a full scientific review and from following the domestic procedures that are a prerequisite for acceptance by the United States of SPAW Protocol listings.

While the SPAW Protocol Parties’ decision to list these ten species without following the Protocol’s procedures compels the United States to enter this reservation, the United States may consider withdrawing its reservation for the relevant species after it completes its own domestic review process.

3. 2030 Agenda for Sustainable Development

As discussed in Chapter 13, the UN General Assembly achieved consensus on the 2030 Agenda for Sustainable Development in 2015. In delivering the U.S. explanation of position on the 2030 Agenda on September 1, 2015, Tony Pipa, U.S. Special Coordinator for the Post-2015 Development Agenda, clarified the status of the 2030 Agenda under international law. Mr. Pipa’s statement is excerpted below and available at http://usun.state.gov/remarks/6833. Additional excerpts of Mr. Pipa’s September 1 statement and excerpts from others of his statements on the 2030 Agenda appear in Chapter 13.

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http://usun.state.gov/remarks/6833


We would like to take the opportunity to make important points of clarification on the text, with

the understanding that none of the provisions of this Agenda—including those characterized as

having been “agreed”—create or affect rights or obligations under international law, as

recognized in paragraph 18. For example, the United States understands that the language

regarding the permanent sovereignty of each State over its wealth, natural resources and

economic activity must be read consistent with states’ obligations under international human

rights treaties to which they are a party, as well as other obligations of States under international

law. Similarly, this Agenda does not affect potential constraints under international law or

agreements that apply to “policy space,” nor does the Agenda, including and especially

paragraph 30, affect the rights of states to take trade measures. Finally, target 6.5 must be read

consistent with existing transboundary agreements.

We also highlight our mutual recognition, in paragraph 58, that implementation of this

Agenda must respect and be without prejudice to the independent mandates of other processes

and institutions, including negotiations, and does not prejudge or serve as precedent for decisions

and actions underway in other forums. For example, the United States continues to view the

World Trade Organization as the appropriate forum for the negotiation of trade issues, and this

Agenda does not represent agreement on WTO Doha Round-related issues, nor does it represent

a commitment to provide new market access for goods or services. This Agenda also does not

interpret or alter any WTO agreement or decision, including the Agreement on Trade-Related

Aspects of Intellectual Property (TRIPS Agreement). Similarly, indicators, governance

proposals, and language developed through this process have no precedential value for the

International Financial Institutions, including the IMF and World Bank Group.

* * * *

4. Joint Comprehensive Plan of Action with Iran

As discussed in more detail in Chapter 19, Iran, the European Union, and the permanent five members of the Security Council plus Germany (“P5+1”) reached the Joint Comprehensive Plan of Action (“JCPOA”) to constrain Iran’s nuclear program in 2015. During the negotiations of the JCPOA, members of the U.S. Congress criticized the Obama administration for pursuing such an arrangement with Iran and proposed legislation that would have mandated a Congressional vote of approval for any deal with Iran. Denis McDonough, Assistant to the President and Chief of Staff, explained In a March 14, 2015 letter to Senator Bob Corker, Chairman of the Senate Committee on Foreign Relations, that non-binding political arrangements such as the JCPOA have been negotiated by the Executive Branch repeatedly and should continue to serve as a useful tool of U.S. foreign policy and diplomacy. Excerpts follow from the letter to Senator Corker, which is available at www.state.gov/s/l/c8183.htm.

* * * *



Thank you for your March 12 letter to the President regarding Iran. I am responding on his

behalf. The Administration has welcomed Congress’ important role in the United States’ policy

toward Iran and takes seriously our continued engagement with Congress on this issue. …

We agree that Congress will have a role to play—and will have to take a vote—as a part

of any comprehensive deal that the United States and our international partners reach with Iran.

As we have repeatedly said, even if a deal is reached, only Congress can terminate the existing

Iran statutory sanctions. We also agree that the existing statutory sanctions should remain in

place, even as we suspend some of them using waivers included by Congress in the Iran

sanctions statutes that it has enacted, until after Iran has complied with its commitments for an

extended period of time, so that we retain the capability to re-impose sanctions if Iran does not

comply with a deal, and so that Congress has the benefit of seeing whether Iran lived up to its

commitments before taking actions.

However, the legislation you have introduced in the Senate goes well beyond ensuring

that Congress has a role to play in any deal with Iran. Instead, the legislation would potentially

prevent any deal from succeeding by suggesting that Congress must vote to “approve” any deal,

and by removing existing sanctions waiver authorities that have already been granted to the

President. We believe that the legislation would likely have a profoundly negative impact on the

ongoing negotiations—emboldening Iranian hard-liners, inviting a counter-productive response

from the Iranian majiles; differentiating the U.S. position from our allies in the negotiations; and

once again calling into question our ability to negotiate this deal. This would therefore

complicate the possibility of achieving a peaceful resolution to the Iranian nuclear issue if

legislative action is taken before a deal is completed. Moreover, if congressional action is

perceived as preventing us from reaching a deal, it will create divisions within the international

community, putting at risk the very international cooperation that has been essential to our ability

to pressure Iran. Put simply, it would potentially make it impossible to secure international

cooperation for additional sanctions, while putting at risk the existing multilateral sanctions

regime.

In addition to its impact on the negotiations, this legislation would also set a potentially

damaging precedent for constraining further Presidents of either party from pursuing the conduct

of essential diplomatic negotiations, making it much harder for future Presidents to negotiate

similar political commitments. These factors have led the President to determine that he would

veto this legislation, were it to pass the Congress.

It is also important to note that, despite the recent commentary that some of your

colleagues addressed to the Iranian leadership, non-binding arrangements—like the deal we are

negotiating with Iran and the United Kingdom, France, Germany, Russia, and China, and the

European Union—are an essential element of international diplomacy and do not require

congressional approval. Presidents from both parties have relied on such arrangements to address

sensitive national security matters, including nonproliferation. The United States has

implemented numerous similar arms-control and nonproliferation arrangements. A few examples

include:

The 2013 U.S.-Russia framework to remove chemical weapons from Syria, which was

not legally binding and was not subject to congressional approval, outlined the steps for

eliminating Syria’s chemical weapons and helped lay the groundwork for a successful

multilateral effort to rid the world of these dangerous weapons.

A variety of multilateral initiatives, including the Proliferation Security Initiative (a

multilateral effort involving over 100 countries aimed at stopping the trafficking of


weapons of mass destruction), the Nuclear Suppliers Group Guidelines (a set of

principles that govern nuclear trade for peaceful purposes), the Missile Technology

Control Regime (a voluntary association of countries that coordinate on export licensing

efforts to prevent the proliferation of unmanned delivery systems capable of delivering

weapons of mass destruction), the Hague Code of Conduct Against Ballistic Missile

Proliferation (a multilateral arrangement involving over 100 countries to curb ballistic

missile proliferation worldwide and to further delegitimize such proliferation), the

Vienna Declaration on nuclear safety (a 2015 initiative to prevent nuclear accidents and

mitigate their radiological consequences), and a series of instruments related to the

Organization for Security and Cooperation in Europe (including the Helsinki Final Act

and the Vienna Document on Confidence- and Security-Building Measures).

A variety of bilateral cooperative arrangements—to take a few recent examples, a 2015

exchange of letters with the Government of Vietnam on cooperative threat reduction, a

2014 memorandum of understanding with Canada on nuclear forensics, a memorandum

of cooperation between the Nuclear Regulatory Commission and China from 2007, and a

2006 memorandum of understanding between the Department of Energy and China

implementing the 123 Agreement.

Political commitments that were developed at major multilateral nonproliferation

conferences also often result in the development of important, non-binding political

commitments. For example, the Nuclear Security Summit hosted by the United States in

2010 resulted in the development of a Communique and Work Plan in which participants

committed to ensure effective security of all nuclear materials under their control, to

consolidate or reduce the use of weapons-usable materials in civilian applications, and to

work cooperatively to advance nuclear security.

These types of arrangements are also common in other areas of diplomacy and foreign

policy. To cite just a few examples: the Atlantic Charter, negotiated by President Roosevelt in

1941, was a joint declaration with Great Britain addressing objectives for World War II and the

post-war international order. The Shanghai Communique, negotiated by President Nixon in

1972, was a joint declaration with China on principles governing bilateral relations and led to the

normalization of relations. Other examples, which are too numerous to list in this letter, include

bilateral commitments on issues ranging from foreign taxation to intelligence cooperation and

defense measures. Additionally, the deal we are negotiating will allow us to retain significant

leverage, as Iran would face severe consequences for any violation since we would have the

capacity to swiftly re-impose punishing sanctions if Iran does not meet its commitments.

The United Nations Security Council will also have a role to play in any deal with Iran.

Just as it is true that only Congress can terminate U.S. statutory sanctions on Iran, only the

Security Council can terminate the Security Council’s sanctions on Iran. …

The Administration’s request to the Congress is simple: let us complete the negotiations

before the Congress acts on legislation. The Administration is committed to sharing the details

and technical documents related to a long-term comprehensive deal with Congress. If we

successfully negotiate a framework by the end of this month, and a final deal by the end of June,

we expect a robust debate in Congress. We will aggressively seek public and congressional

support for a deal—if we reach one—because we believe a good deal is far better than the

alternatives available to the United States. We understand that Congress will make its own

determinations about how to respond, but we do not believe that the country’s interests are

served by congressional attempts to weigh in prematurely on this sensitive and consequential


ongoing international negotiation aimed at achieving a goal that we all share: using diplomacy to

prevent Iran from developing a nuclear weapon.

* * * *

5. U.S.-France Agreement on Compensation for Holocaust-Related Deportation

See discussion in Chapter 8 of the entry into force and the exchange of rectifying notes for the Agreement reached between the United States and France on Compensation for Certain Victims of Holocaust-Related Deportation from France Who Are not Covered by French Programs. The Agreement, including the rectifying notes, is available at http://www.state.gov/documents/organization/251005.pdf.

6. U.S. Statement on Multilateral Treaties and the Rule of Law

On October 15, 2015, Stephen Townley, Deputy Legal Adviser for the U.S. Mission to the UN, delivered remarks at the 70th UN General Assembly Sixth Committee session on “The Rule of Law at the National and International Levels.” Mr. Townley’s remarks on the role of multilateral treaties in promoting and advancing the rule of law are excerpted below and available at http://usun.state.gov/remarks/6904.

* * * *

Multilateral treaties play important roles in promoting and advancing the rule of law across a

broad range of subjects. To give just a handful of examples, they promote transparent and

predictable rules that advance international trade, investment, communications, and travel; they

facilitate cooperation in the investigation and prosecution of serious crimes and help countries

work together to prevent and punish conduct that threatens our common interests; and they

outline fundamental human rights the protection of which is a critical imperative.

The breadth of the topics addressed by multilateral treaties brings with it, though, a

proliferation of kinds of multilateral treaties, not only with regard to their substance, but also

with regard to the processes by which they are negotiated and concluded.

Yet even before one can speak of such processes, it is also useful to bear in mind that

treaties are not the only tools at the international community’s disposal for advancing common

interests, including the rule of law. Treaties have the capacity to create binding obligations under

international law. But in many areas, non-binding instruments can serve as effective means for

promoting international cooperation and shaping state conduct. They may also provide

advantages—including greater flexibility and potential for faster implementation—that may

make them preferable to treaties in some circumstances. For these reasons, when it comes to

addressing the antecedent question of whether, in fact, a treaty is the best solution to a particular

problem that international cooperation might be helpful in addressing, we respectfully submit

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that it is not enough to suggest that the responsive instrument should be legally binding, as the—

in the view of some—‘highest form’ of norm setting. In our view, the question is a much more

nuanced one, and, taking into account for instance the difficulty of negotiating and forging

support for a treaty, sometimes a different answer may be the appropriate one.

When it comes specifically to treaties, though, we think two particularly important

considerations must be born in mind in whatever forum and by whatever means the treaty is to

be negotiated: clarity of drafting and a commitment to implementation.

Clarity of drafting is important to ensuring that the broad range of actors who will be

responsible for giving effect to treaty obligations understand and are able to apply the treaty’s

provisions. These actors may include members of national legislatures who may have to approve

a state joining a treaty, national court judges and private parties who may be called upon to

interpret and apply the treaty, or may invoke it in litigation, respectively, and members of the

media who may have a role in the public’s understanding of the treaty and its requirements.

With these considerations in mind, we strive to pay careful attention during treaty

negotiations to the clarity of treaty text. Ensuring that treaty terms are clearly defined and that

the nature and scope of treaty obligations is clearly stated can contribute significantly to the

treaty’s ultimate effectiveness. In addition, where treaties are concluded in multiple languages, it

is important to consider how treaty terms may be translated so that they clearly convey the

intended meaning in each language version of the treaty. During treaty negotiations, U.S.

negotiators will often make proposals designed to improve the clarity of treaty provisions in

these and other respects. Such changes may sometimes appear technical in nature, but they can

produce important benefits in helping the treaty to achieve its intended objectives. We would be

interested in how others approach issues of clarity in treaty provisions under negotiation.

A second critically important consideration is treaty implementation. Consistent with the

principle of “pacta sunt servanda” every treaty is binding upon the parties to it and must be

performed by them in good faith. States can maximize the effectiveness of treaties, and ensure

compliance with their legal obligations, by giving careful consideration to the steps that will be

required to implement treaty obligations before becoming party to a treaty. In the United States,

we employ a standardized process through which interested agencies across the U.S. government

carefully review treaties before the United States joins them. Among the most important issues

we consider through this process is how we would expect to implement the treaty’s various

obligations. For each treaty we might join, we carefully consider whether any new legislation

would be required for us to be able to implement it, and adopt any such legislation before

becoming party. We would be interested to hear more about other states’ processes for

addressing treaty implementation. It may also be useful to examine further how treaties

themselves have addressed the need for effective implementation, and to identify factors and

mechanisms that have proven most useful in promoting such implementation

But it is not just states that can help achieve clarity and ensure implementation. An

increasingly salient aspect of the multilateral negotiation process, also identified in this year’s

Secretary General’s report, is the involvement of non-governmental actors such as civil society

or the private sector in treaty processes. While it must be states that develop international law,

we believe non-governmental actors can sometimes play a useful role, both with regard to

providing input during the negotiation of an instrument, and after the fact, in helping to hold us

collectively to account to our obligations.


And the UN of course, can itself make a critical contribution to both clarity and

implementation.

With regard to clarity in treaty drafting, the Secretary General, and the UN Office of

Legal Affairs, can serve as a repository of treaty practice. In this role, they may assist negotiators

in formulating treaty provisions, drawing on relevant similar provisions in other instruments.

This, in turn, may result in a clearer understanding of how an eventually-adopted provision

should be understood.

With regard to treaty implementation, this Committee can play an important role in

allowing states to exchange information and identify best practices with a view to helping states

strengthen their approaches, and their commitment to, treaty implementation.

And, of course, it goes without saying that states need to be able to participate in

multilateral treaty regimes once they have been negotiated and once states are in position to

implement them. In that regard, we would also like to highlight and commend the Office of

Legal Affairs for its work in support of the Secretary General’s depositary function, and to

encourage an update to the Guide to Depositary Practice, within existing resources. This Guide is

an extremely useful resource for states and helps facilitate their effective participation in

multilateral treaty regimes.

Finally, in addition to considerations relating to clarity and implementation, we also

believe that the effectiveness of treaties can be advanced by greater public understanding and

awareness. We recognize and commend OLA’s work to expand access to information about

treaties, including its excellent UN treaty collection website and its organization of the annual

treaty event. From our perspective, we have recently sought to publicize to state and local

officials the human rights treaties to which the U.S. is party. And, of course, the Geneva

Conventions include an obligation to disseminate them. But it would be useful to understand

what the practice in other instruments has been, and how states themselves have gone about

making treaties known, not only to other states, but internally. While Article 102 of the Charter

concerned the importance of other states understanding the legal regimes in place, today, it is

equally key that our citizens understand the obligations their governments are preparing to

undertake or have undertaken. We think it would be very useful to discuss further how best to

achieve this.

* * * *

7. ILC Work on the Law of Treaties

On November 6, 2015, Assistant Legal Adviser Todd Buchwald delivered remarks on behalf of the United States at the 70th UN General Assembly Sixth Committee on the Report of the International Law Commission (“ILC”) on the Work of its 67th Session. He discussed the work of the ILC on multiple subjects, including subsequent agreements and subsequent practice in relation to the interpretation of treaties. Mr. Buchwald’s remarks on customary international law and crimes against humanity are excerpted in Chapter 7. Excerpts below relate to subsequent agreements and subsequent practice. His remarks are available in full at http://usun.state.gov/remarks/6968.



* * * *

Mr. Chairman, turning to the topic of “Subsequent agreements and subsequent practice in

relation to the interpretation of treaties,” we would like to thank the Special Rapporteur, Georg

Nolte, and the Commission for their perceptive and insightful work on this topic, including on

the important issue of the role of the practice of international organizations in the interpretation

of treaties.

We have studied with great interest Draft Conclusion 11 and commentary as

provisionally adopted by the Commission this past summer and agree with much of the analysis.

In particular, we agree that the rules of treaty interpretation reflected in Articles 31 and 32 of the

Vienna Convention on the Law of Treaties apply to the constituent instruments of international

organizations, as stated in Draft Conclusion 11, paragraph 1. We also agree that a subsequent

agreement or subsequent practice by the parties to a treaty may arise from or be expressed in the

practice of an international organization in the application of its constituent instrument, as stated

in Draft Conclusion 11, paragraph 2. For example, the parties may instruct the international

organization to engage in a certain practice or react to the activities of the international

organization in a way that constitutes subsequent practice of the parties.

However, we have doubts about Draft Conclusion 11, paragraph 3, which says the

“[p]ractice of an international organization in the application of its constituent instrument may

contribute to the interpretation of that instrument when applying articles 31, paragraph 1, and

32.”

The draft commentary explains that the purpose of this provision is to address the role of

the practice of an international organization “as such” in the interpretation of the instrument by

which it was created. The Commission apparently recognized—correctly in the view of the

United States—that the practice of that international organization is not “subsequent practice” for

the purposes of the rule reflected in Vienna Convention, Article 31, paragraph 3b, because the

international organization itself is not a party to the constituent instrument and its practice as

such, therefore, cannot contribute to establishing the agreement of the parties.

However, faced with the inapplicability of paragraph 3b of Article 31, the Commission

has proposed instead that consideration of the international organization’s practice is appropriate

under paragraph 1 of Article 31 and Article 32 of the Vienna Convention.

Mr. Chairman, paragraph 1 of Article 31 is not relevant in this context. Paragraph 1

reads: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be

given the terms of the treaty in their context and in light of its object and purpose.” The factors to

be considered pursuant to Article 31, paragraph 1—“ordinary meaning,” “context” and “object

and purpose”—do not encompass consideration of subsequent practice regardless of whether the

actor is a party or the international organization. The Commission provides no evidence from the

travaux préparatoires of the Vienna Convention, including the Commission’s own work, in

support of using Article 31, paragraph 1, in this way. Moreover, none of the very few cases cited

by the Commission in support of this proposition appear to rely on Article 31, paragraph 1, of the

Vienna Convention.

Article 32 of the Vienna Convention may potentially provide a basis for considering the

practice of an international organization with respect to the treaty by which it was created,

particularly where the parties to the treaty are aware of and have endorsed the practice. We


believe that circumstances in which the practice of the international organization may fall within

Article 32, however, should be explained in the commentary.

Mr. Chairman, before concluding on this topic, we would like to make two final points.

First, as the United States has noted previously, we welcome the situating of this topic in the

framework of the rules on treaty interpretation reflected in Articles 31 and 32 of the Vienna

Convention. For this reason, we have questions about discussions, in the commentary to Draft

Conclusion 11, of interpretative rules that may be inconsistent with those reflected in Articles 31

and 32, such as the commentary’s reference in paragraph 35 to a “constitutional interpretation”.

Finally, we note that the Commission indicated an interest in “examples where

pronouncements or other action by a treaty body consisting of independent experts have been

considered as giving rise to subsequent agreements or subsequent practice relevant for the

interpretation of a treaty.” The United States believes it is important that the Commission make

clear that the actions or views of treaty bodies consisting of independent experts do not, in and of

themselves, constitute a “subsequent agreement” or “subsequent practice” for the purposes of

paragraph 3 of Article 31 of the Vienna Convention, as they are neither agreements “between the

parties” nor practice that establishes such an agreement. However, the views of treaty bodies

composed of independent experts may be relevant indirectly. For example, States parties’

reactions to the pronouncements or activities of a treaty body, in some circumstances, may

constitute subsequent practice (of those States) for the purposes of Article 31, paragraph 3.

In conclusion, we again thank the Special Rapporteur and the Commission for their

valuable work on this important topic and look forward to further refinement of Draft Conclusion

11 and its commentary as this topic progresses.

* * * *

On November 11, 2015, Mark Simonoff, Minister Counselor for the U.S. Mission

to the UN, delivered remarks at the 70th UN General Assembly Sixth Committee on the Report of the International Law Commission on the Work of its 67th Session. Excerpts below address the topic of provisional application of treaties. Mr. Simonoff’s remarks are also excerpted in Chapter 7 and available in full at http://usun.state.gov/remarks/6976.

* * * *

Mr. Chairman, with respect to the topic of “Provisional application of treaties,” the United States

thanks the Special Rapporteur, Juan Manuel Gómez-Robledo, for his third report, including the

extensive work and consideration of States’ views that it reflects. We also thank the Drafting

Committee for its contributions in the three Draft Guidelines it provisionally adopted in July.

As the United States has stated, we believe the meaning of “provisional application” in

the context of treaty law is well-settled—“provisional application” means that a State agrees to

apply a treaty, or certain provisions of it, prior to the treaty’s entry into force for that State.

Provisional application gives rise to a legally binding obligation to apply to the treaty or treaty

provision in question, although this obligation can be more easily terminated than the treaty itself



may be once it has entered into force. We hope to see this clearly stated in the Draft Guidelines

as they progress.

We also believe it is important that the Draft Guidelines make clear that a State’s legal

obligations under provisional application can only arise through the actual agreement of that

State and the other States that undertake to apply the treaty provisionally. We are concerned that

the Special Rapporteur’s Draft Guideline 2 and the language of his report may suggest that such

obligations may be incurred through some method other than agreement, contrary to Article 25

of the Vienna Convention on the Law of Treaties.

Mr. Chairman, the United States is impressed by the extensive research reflected in the

Special Rapporteur’s third report, which contains references to a wide variety of situations. We

caution, however, that not every situation in which States apply a treaty prior to its entry into

force involves “provisional application” of the treaty within the meaning of the Vienna

Convention. We do not believe, for example, that the application by an international organization

of its constituent instrument is “provisional application” in the sense of the Vienna Convention,

as the international organization is not a prospective party to the treaty. Similarly, a non-legally

binding commitment to begin applying a treaty prior to entry into force is not “provisional

application” in our view.

With regard to future work of the Special Rapporteur and the ILC on this topic, we

support the suggestion that the ILC develop model clauses as a part of this exercise as those

clauses may assist practitioners in considering the many options that are available to negotiators

and how best to capture those options in their drafts. However, we are not convinced of the

merits of studying the legal effects of the termination of provisional application with respect to

treaties granting individual rights, as we do not believe that the rules regarding provisional

application of treaties differ for such instruments.

* * * *

B. LITIGATION INVOLVING TREATY LAW ISSUES

1. Abu Khatallah

On September 9, 2015, the United States filed its brief in opposition to the motion brought by defendant Ahmed Salim Faraj Abu Khatallah asking that the Court divest itself of personal jurisdiction over his prosecution in the United States and send him back to Libya. Abu Khattala is a Libyan national, charged with participating in the September 11-12, 2012, terrorist attack in Benghazi, Libya. As commander of Ubaydah Ibn Al Jarrah (“UBJ”), one of the Libyan-based Islamist extremist groups that carried out the attack, Abu Khatallah allegedly participated by, among other things, coordinating efforts to turn away emergency responders and entering the Mission compound to supervise its plunder during the attack. Abu Khatallah was captured in Benghazi in 2014 after he was charged in a criminal complaint and a warrant was issued for his arrest. Excerpts below are from the section of the U.S. brief responding to Abu Khatallah’s contention that his apprehension violated international treaties. The full text of the brief is available at http://www.state.gov/s/l/c8183.htm.



* * * *

The defendant argues that his capture and subsequent detention violated treaties of the United

States, specifically the U.N. Charter and the Hague Convention;6

thus, the Court should divest

itself of personal jurisdiction over the defendant. He is incorrect. The defendant’s argument …

ignores the fact that the treaties he cites are not self-executing and the fact that the treaties do not

provide for individual rights.

As a threshold matter, the apprehension of the defendant violated neither the U.N.

Charter nor the Hague Convention.7

Even if the U.N. Charter or the Hague Convention were

construed to prohibit certain apprehensions—and there is nothing in either treaty that specifically

prohibits such conduct—they are not self-executing treaties that may be directly enforced in

court. Moreover, the defendant fails to identify any provision of these international agreements

which creates rights enforceable by a private individual. …

A. Neither the U.N. Charter nor the Hague Convention may be enforced by this

Court to sanction the Executive for the apprehension of the defendant.

In order for the U.N. Charter or the Hague Convention to be directly enforced by this

Court, they would have to be “self-executing.” As the Supreme Court explained in Medellin v.

Texas, 552 U.S. 491, 505 (2008), “a treaty is ‘equivalent to an act of the legislature,’ and hence

self-executing, when it ‘operates of itself without the aid of any legislative provision. When, in

contrast, ‘[treaty] stipulations are not self-executing they can only be enforced pursuant to

legislation to carry them into effect.’” (Citation omitted.)

The treaty provisions on which the defendant relies are not self-executing. First,

numerous courts, including the D.C. Circuit, have examined various provisions of the U.N.

Charter and found them not to be self-executing. See, e.g., Comm. of U.S. Citizens Living in

Nicaragua v. Reagan, 859 F.2d 929, 938 (D.C. Cir. 1988) …. The provision of the U.N. Charter

on which the defendant relies, Article 2, also should be viewed as not self-executing.

Section 4 of Article 2 of the U.N. Charter, on which the defendant apparently relies, provides

that “[a]ll members shall refrain in their international relations from the threat or use of force

against the territorial integrity or political independence of any state, or in any other manner

inconsistent with the Purposes of the United Nations.” This Section, therefore, relates to one of

the most fundamentally political questions that faces a nation—when to use force in its

6 There are actually multiple Hague Conventions. The defendant cites (at 11) the Hague Convention on the Law of War: Rights and Duties of Neutral Powers and Persons in Case of War on Land, adopted by the United

States on November 27, 1909, which is commonly referred to as the Hague Convention V. For purposes of

terminology, all references in this brief to the “Hague Convention” will be to the Hague Convention V, unless

otherwise noted. 7 Notably, Libya is not even a party or a signatory to the Hague Convention. As provided in Article 20 of that Convention, “[t]he provisions of the present Convention do not apply except between Contracting Powers and

then only if all the belligerents are Parties to the Convention.” Therefore, the United States has no treaty obligations

to Libya under this Convention and the provisions of this treaty have no bearing on the apprehension of the

defendant.


international relations, including when to wage war. It also is phrased extremely broadly,

prohibiting the “threat or use of force . . . in any other manner inconsistent with the Purposes of

the United Nations.” The defendant has cited nothing, and the government is aware of nothing, to

suggest that this rule—or, in fact, any other rule established under Article 2—was intended,

standing alone, to be directly enforceable in the courts of the United States. To the contrary, the

breadth of the Article’s language suggests that carefully crafted legislation would be required

before such a provision, or any part of it, would be directly enforceable in United States courts.

As noted in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 809 (D.C. Cir. 1984) (Bork, J.,

concurring): “Articles 1 and 2 of the United Nations Charter are likewise not self-executing.”

…

The same is true of the Hague Convention. While the defendant appears to invoke the

Hague Convention V (see n.6, supra), by analogy, multiple courts have found the Hague

Convention IV to be not self-executing. …As far as we are aware, no court has ever held that the

Hague Convention V is self-executing. This is not surprising in that the Convention provision on

which the defendant appears to rely, Article 1, which states only that “the territory of neutral

Powers is inviolable,” like Article 2 of the U.N. Charter, reflects only a general principle that

could not have reasonably been intended to be enforceable in U.S. courts. See Al Liby, 23

F.Supp.3d at 202.

B. Neither the U.N. Charter nor the Hague Convention creates privately

enforceable rights.

Treaties do not generally create rights that are privately enforceable in the federal courts:

Even when treaties are self-executing in the sense that they create federal law, the

background presumption is that international agreements, even those directly benefiting

private persons, generally do not create private rights or provide for a private cause of

action in domestic courts. Accordingly, a number of the United States courts of appeals

have presumed that treaties do not create privately enforceable rights in the absence of

express language to the contrary.

Medellin, 552 U.S. at 505 n.3; see, e.g., Gara v. Lappin, 253 F.3d 918, 924 (7th Cir. 2001)

(“[A]s a general rule, international agreements, even those benefitting private parties, do not

create private rights enforceable in domestic courts.”). Therefore, the defendant must

demonstrate, not only that the U.N. Charter and the Hague Convention are self-executing, but

also that the treaties create privately enforceable rights. The defendant has not and cannot do so

as the text and negotiating and legislative history of the provisions at issue give no indication that

they were intended to create privately enforceable rights.

Defendant appears to rely on the following portion of Article 2 of the U.N. Charter:

The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act

in accordance with the following Principles.

1. The Organization is based on the principle of the sovereign equality of all its Members.

2. All Members, in order to ensure to all of them the rights and benefits resulting from

membership, shall fulfill in good faith the obligations assumed by them in accordance

with the present Charter.

3. All Members shall settle their international disputes by peaceful means in such a manner

that international peace and security, and justice, are not endangered.


4. All Members shall refrain in their international relations from the threat or use of force

against the territorial integrity or political independence of any state, or in any other

manner inconsistent with the Purposes of the United Nations.

Similarly, the defendant’s Hague Convention argument appears to rely on Article 1 of the

Convention, which also addresses relations among states. These provisions do not speak of

individual rights. Moreover, there is no suggestion elsewhere in the treaties that these provisions

were intended to be privately enforceable. Indeed, the treaties do not speak of private rights at

all:

[Articles 1 and 2 of the United Nations Charter] do not speak in terms of individual rights

but impose obligations on nations and on the United Nations itself. They address states,

calling on them to fulfill in good faith their obligations as members of the United

Nations. Sanctions under article 41, the penultimate bulwark of the Charter, are to be

taken by states against other states. Articles 1 and 2, moreover, contain general “purposes

and principles,” some of which state mere aspirations and none of which can sensibly be

thought to have been intended to be judicially enforceable at the behest of individuals.

These considerations compel the conclusion that articles 1 and 2 of the U.N. Charter were

not intended to give individuals the right to enforce them in municipal courts, particularly

since appellants have provided no evidence of a contrary intent.

Tel-Oren, 726 F.2d at 809; Al Liby, 23 F.Supp.3d at 202-03 (“Al Liby has not identified any

provision of the United Nations Charter . . . that created judicially enforceable private rights.”).

Furthermore, the government is aware of nothing, and the defendant points to nothing, in

the drafting history of the provisions or in their consideration by the President and Senate to

support a conclusion that the provisions were intended to create privately enforceable rights.

Thus, the language and negotiating and legislative history of the U.N. Charter and the Hague

Convention do not support a construction that confers individual rights that could in turn be

judicially enforced by private parties.

The lack of any such individual right, when considered in conjunction with the fact that

the treaties in question are not self-executing, further underscores why the Court should deny the

defendant’s claim for relief pursuant to these agreements. Even if his apprehension constituted a

violation of these treaties (and it did not), the defendant has not shown that the Court should even

consider that he has an individual right to enforce them.

C. Even if the defendant had a private right to enforce the treaties upon which

he relies, divestiture of personal jurisdiction would not be the appropriate

remedy. Even if the treaties upon which the defendant relies were directly enforceable in federal

court and he had a private right to enforce them, the remedy he seeks—divestiture of personal

jurisdiction—would not be appropriate because these treaties provide for no such remedy. Courts

will not, and should not, infer such a drastic remedy as divestiture of personal jurisdiction for

violation of an international agreement absent clear language in the text of the treaty providing

for such a remedy: “If we were to require suppression for Article 36 violations without some

authority in the [Vienna] Convention, we would in effect be supplementing those terms by

enlarging the obligations of the United States under the Convention. This is entirely inconsistent

with the judicial function.” Sanche-Llamas v. Oregon, 548 U.S. 331, 346 (2006); see also United


States v. Li, 206 F.3d 56, 61 (1st Cir. 2000) (“we will infer neither an entitlement to suppression

nor an entitlement to dismissal absent express, or undeniably implied, provision for such

remedies in a treaty’s text.”); Al Liby, 23 F.Supp.3d at 203 (“even assuming that the international

treaties were self-executing and created judicially enforceable private rights, dismissal of the

indictment would not be appropriate”). The defendant has cited to no such language, and the

government is aware of none.

* * * *

2. Patookas v. Teck Cominco

On October 13, 2015, the United States filed a brief as amicus curiae in the U.S. Court of Appeals for the Ninth Circuit in a case involving claims of environmental damage brought by the State of Washington and tribal authorities against a Canadian

corporation. Patookas et al. v. Teck Cominco Metals, Ltd., No. 15-35228 (9th Cir.). The district court had concluded that hazardous substances from Teck’s smelter stacks were “disposed” under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq., upon being deposited on the ground at the Upper Columbia River Superfund Site (“UCR Site”). On appeal, the government of Canada intervened as amicus, contending that CERCLA should not apply, rather the dispute should be resolved using a “bilateral mechanism” pursuant to the 1935 Convention for the Establishment of a Tribunal to Decide Questions of Indemnity Arising from the Operation of the Smelter at Trail (the “Ottawa Convention”) and related arbitration decisions in 1938 and 1941. The sections of the U.S. amicus brief refuting Canada’s argument regarding the Ottawa Convention are excerpted below.

* * * *

B. The Ottawa Convention Does Not Apply to the Cleanup of Trail Smelter Metals at

the UCR Site. If the Court were to address Canada’s argument, the argument lacks merit and

misinterprets the Ottawa Convention. Canada identifies no applicable international obligation, let

alone one that conflicts with CERCLA. At most, Canada has pointed to a binding arbitration that

resolved a narrow set of questions, and a wholly discretionary process, based on the mutual

consent of the Governments, that the United States potentially could use to raise additional

damage claims arising from the Trail Smelter.

1. The United States Is Not Obligated to Bring Any Claims Under the Ottawa

Convention, Which Cannot Be Invoked Without U.S. Consent. The United States often attempts to achieve diplomatic solutions to transborder pollution

issues and is committed to fulfilling its international obligations when they apply. Here, Canada

cites nothing under the Ottawa Convention mandating that the Governments refer to arbitration


any dispute concerning the Trail Smelter. “The interpretation of a treaty, like the interpretation of

a statute, begins with its text.” Abbott v. Abbott, 560 U.S. 1, 10 (2010) (internal quotation marks

and citation omitted). Furthermore, an Executive Branch interpretation of treaty provisions is

entitled to great weight and deference. See id. at 15; Sumitomo Shoji Am., Inc. v. Avagliano, 457

U.S. 176, 185 (1982).

The Ottawa Convention referred to the Tribunal four specific questions concerning

whether the Trail Smelter caused damage in Washington state after January 1932 and, if so, what

indemnity should be paid and what preventative operational measures (or “regime”) should be

implemented. Ottawa Conv., Art. III. The convention also prescribed a procedure for litigating

those questions and specified that the proceedings would conclude when the Governments

“inform the Tribunal they have nothing additional to present.” Id., Arts. IV-XI. It also provided

that the Tribunal’s report reflecting its “final decisions” on the questions would be the

concluding step. Id. Art. XI. The issuance of the 1941 Decision concluded the Tribunal’s work

and was the extent of the Governments’ commitment to submit to the outcome of an arbitration

process.

Under the Ottawa Convention, the Tribunal would have no competence over further

claims relating to the Trail Smelter unless and until the Governments, in their discretion, “may

make arrangements” to address “claims for indemnity for damage” arising after the timeframe

covered by the 1941 Decision. Id. Art. XI (emphasis added); see also 1941 Decision at 1980

(same). The United States has not invoked this process, and has no present intention of invoking

it here.11

The 1941 Decision reiterates the voluntary and discretionary nature of this process,

expressing “the strong hope that any investigations which the Governments may undertake in the

future, in connection with the matters dealt with in this decision, shall be conducted jointly.”

1941 Decision at 1981 (emphasis added). Because the 1941 Decision concluded the matters

before the Tribunal and the United States has no present intention to consent to refer any new

matter under Article XI, the Ottawa Convention has no provisions for this Court to apply or

enforce.

2. The Ottawa Convention Applies Only to Government Claims, Not the Claims

of Individuals. Canada also errs in asserting that the “Permanent Regime is fully capable of redressing”

Plaintiffs’ claims. Canada Br. at 8. The Ottawa Convention is available only to resolve a dispute

between the Governments, subject to their agreement to invoke it. “The controversy is between

two Governments . . .; the Tribunal did not sit and is not sitting to pass upon claims presented by

individuals or on behalf of one or more individuals by their Government.” 1941 Decision at

1038. The Ottawa Convention simply is not available to Plaintiffs to recover response costs in

the way that CERCLA is, nor is it a substitute for their CERCLA claims. See Medellin v. Texas,

552 U.S. 491, 506 n.3 (2008) (“The background presumption is that ‘[i]nternational agreements,

even those directly benefiting private persons, generally do not create private rights or provide

for a private cause of action in domestic courts.’”) (citation omitted).

3. The Regime Mandated by the Tribunal Applied to Claims for Damage from

11 Canada claims that it “aimed” to invoke the Ottawa Convention through two diplomatic notes. Canada Br. at 5, 16. The first, dated March 20, 2015, did not mention the Ottawa Convention, vaguely complained of a

“unilateral compulsory measure” against a Canadian company, and urged a non-specific “government to

government” process to address Teck’s “air deposition.” The second, dated August 10, 2015, expressly raised the

Ottawa Convention, but asserted only that the Ottawa Convention “could effectively address future claims.”


Sulfur Dioxide and Is Not Available Here.

Plaintiffs’ CERCLA claims concern natural-resource damages and recovery of their costs

to clean up from the UCR Site various metals from the Trail Smelter’s stacks. However, the

regime of preventative operational measures mandated by the Tribunal (e.g., maximum hourly

sulfur dioxide emissions and placement of sulfur dioxide recorders) was devised “to solve the

sulphur dioxide problem presented to the Tribunal.” 1941 Decision at 1973, 1974 (purpose of the

regime is “to prevent the occurrence of sulphur dioxide in the atmosphere in amounts . . . capable

of causing damage in the State of Washington”); see also Pakootas I, 452 F.3d at 1069 n.5

(noting that Trail Smelter arbitration “concerned sulfur dioxide emissions from the Trail

Smelter.”).

Canada offers no textual support for the suggestion that the regime applies much more

broadly to any “transboundary air emissions passing from the Trail Smelter.” Canada Br. at 12.

And even Canada acknowledges that the regime would need to undergo “modification,” based on

consultation between the Governments, to address the effects of Trail Smelter contamination at

issue in this case (i.e., metals and other non-sulfur-dioxide pollutants). See id. at 23.

Given the weight of evidence of the treaty’s meaning outlined above and the deference

owed to the Executive Branch’s interpretation, there is no basis for the Court to conclude that the

Ottawa Convention prevents the consideration of Plaintiffs’ CERCLA claims.

* * * *

3. Crawford v. U.S. Department of the Treasury

On August 12, 2015, the United States filed its brief in opposition to plaintiffs’ motion for a preliminary injunction in Crawford et al. v. U.S. Department of the Treasury et al., No. 3:15-cv-250-TMR (S.D. Ohio). Plaintiffs sought to enjoin enforcement of the Foreign Account Tax Compliance Act (“FATCA”) and related intergovernmental agreements (“IGAs”). See Digest 2012 at 413 and Digest 2013 at 358 for background on FATCA. Excerpts below from the U.S. brief (with most footnotes omitted) respond to plaintiffs’ arguments regarding the constitutionality of the IGAs. The brief and procedural history of the case are discussed further in Chapter 11.

* * * *

A. The IGAs Are a Valid Exercise of Executive Power (Counts 1 and 2)

1. The IGAs Are Permitted Under the President’s Constitutional Authority and By

Statute (Count 1)

The Supreme Court has consistently recognized the authority of the President to conclude

international agreements without the advice and consent of the Senate where the President’s own

constitutional authority, authority derived from Congressional action, or some combination of

them, provide support for the President’s actions. See Weinberger v. Rossi, 456 U.S. 25, 30 n.6

(1982) (“[T]he president may enter into certain binding agreements with foreign nations without

complying with the formalities required by the Treaty Clause of the Constitution[.]”); Dames &


Moore v. Regan, 453 U.S. 654, 682-83 (1981); Belmont v. United States, 301 U.S. 324, 330-31

(1937); B. Altman & Co. v. United States, 224 U.S. 583, 601 (1912).

Presidential authority to make executive agreements is consistent with the president’s

wide-ranging power over foreign policy-making in general. See Zivotofsky v. Kerry, 135 S. Ct.

2076 (2015); Am. Ins. Assoc. v. Garamendi, 539 U.S. 396, 414 (2003); United States v. Curtiss-

Wright, 299 U.S. 304, 320 (1936). These agreements require no further approval by Congress.

Garamendi, 539 U.S. at 415.

Moreover, “When the President acts pursuant to an express or implied authorization from

Congress, he exercises not only his powers but also those delegated by Congress.” Dames &

Moore, 453 U.S. at 668 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637

(1952) (Jackson, J., concurring)); Treaties and Other Int’l Agreements: The Role of the U.S.

Senate, 106th Cong., 2d Sess., S. Prt. 106-71 (2001), at 79 (“Congress has enacted statutes

providing authority in advance for the President to negotiate with other nations . . . This authority

may be explicit, or . . . implied[.]”).21

Congress’s “enactment of legislation closely related to the question of the President’s

authority in a particular case which evinces legislative intent to accord the President broad

discretion may be considered to ‘invite’ ‘measures on independent presidential responsibility[.]’”

Dames & Moore, 453 U.S. at 678 (quoting Youngstown, 343 U.S. at 637 (Jackson, J.,

concurring)). That is, some legislation “requires, or fairly implies, the need for an agreement in

order to execute the legislation.” Restatement (Third) of Foreign Relations Law, § 303, cmt. e.

Agreements are allowed “where there is no contrary indication of legislative intent and when

there is a history of congressional acquiescence[.]” Dames & Moore, 453 U.S. at 678-79; see

also Haig v. Agee, 453 U.S. 280, 291 (1981) (“[I]n the areas of foreign policy and national

security . . . congressional silence is not to be equated with congressional disapproval.”).

Contrary to Plaintiffs’ belief, the executive agreements at issue here in no way “usurp”

Congress’s power “to lay and collect taxes.” Doc. No. 8-1 at 15 (PageID 153). The IGAs do not

“impose” any taxes (Complaint ¶ 113); rather, they facilitate the implementation of tax rules

previously enacted by Congress. And the IGAs are authorized both expressly and impliedly.

Congress passed legislation that “permits the disclosure of a tax return or return information to a

competent authority of a foreign government which has an income tax or gift and estate tax

convention, or other convention or bilateral agreement relating to the exchange of tax

information, with the United States[.]” See 26 U.S.C. § 6103(k)(4) (emphasis added). Moreover,

§ 1471(b)(2) delegates authority to the Secretary to determine that it is not necessary to apply all

21 Plaintiffs cite Sec. Pac. Nat’l Bank v. Gov’t & State of Iran, 513 F. Supp. 864, 872 (C.D. Cal. 1981), arguing that,

“executive agreements are only valid insofar as they fall within the President’s independent constitutional powers,”

Doc. No. 8-1 at 11 (PageID 149), but that case allows that the president can also “enter into executive agreements . .

. pursuant to valid statutory delegations of authority.” They also cite United States v. Guy W. Capps, Inc., 204 F.2d 655 (4th Cir. 1953). In that case, the court concluded that an executive agreement conflicted with a statute and

invalidated the agreement on that basis. Id. at 658. By contrast, the agreements at issue here are authorized by, and

in furtherance of the purposes of, applicable statutes. Capps has been read by some to imply that an executive

agreement can never concern matters that are within Congress’s Article I powers. See id. at 659; see also Doc. 8-1 at

13 (PageID 151) (citing Capps for this proposition). This reading of Capps, however, has been criticized for taking

“the narrowest view of the President’s power” in a way that “does not accord with the practice either before or since

. . . . If the President cannot make agreements on any matter on which Congress could legislate, there could be no

executive agreements with domestic legal consequences.” Louis Henkin, Foreign Affairs and the Constitution 181

(1972). The Fourth Circuit’s implication in this regard was not adopted by the Supreme Court when it affirmed, see

348 U.S. 296 (1955), and more recent Supreme Court authority like Dames & Moore is to the contrary.


the § 1471 rules to particular classes of FFIs.

Federal courts have found statutory authorization to enter similar executive agreements.

In Barquero v. United States, 18 F.3d 1311 (5th Cir. 1994), the Fifth Circuit, reading 26 U.S.C.

§ 274(h)(6)(C) in conjunction with 26 U.S.C. 927(e)(3), upheld the tax information exchange

agreement (TIEA) with Mexico as constitutional because Congress had expressly authorized it.

18 F.3d at 1314-15. The court also found “that these sections of the Code provide ‘implicit

approval’ for the President’s actions,” and were “an ‘invitation’ for the President to enter into

TIEAs[.]” 18 F.3d at 1315 (citing § 6103(k)(4) and quoting Dames & Moore, 453 U.S. at 678);

see also United States v. Walczak, 783 F.2d 852, 856 (9th Cir. 1986) (“[S]ince Congress

contemplated that agreements having to do with civil aviation would be negotiated by the

executive branch, the agreement in question is among those which the President may conclude

on his own authority.”); Owner-Operator Indep. Drivers Ass’n, 724 F.3d. at 237-38 (executive

agreement for the reciprocal recognition of commercial drivers’ licenses permitted under the

Secretary of Transportation’s statutory authority to prescribe regulations on minimum standards

for licenses); B. Altman & Co., 224 U.S. at 601; Weinberger, 456 U.S. 25; Lemnitzer v.

Philippine Airlines, Inc., 52 F.3d 333 (table), 1995 WL 230404 (9th Cir. 1995); Harris v. United

States, 768 F.2d 1240 (11th Cir. 1985).

Plaintiffs’ claim that the IGAs are unconstitutional ignores this precedent. Like the

executive agreements considered in Barquero, Walzack, and Owner-Operator Independent

Drivers Association, the IGAs here are both expressly and impliedly authorized by statute, as

explained above with respect to §§ 1471 and 6103(k)(4). Furthermore, “there is a history of

congressional acquiescence,” Dames & Moore, 453 U.S. at 678, in this area, with successive

presidential administrations having entered into at least 30 TIEAs as executive agreements since

1983. Each of these agreements was reported to Congress pursuant to 1 U.S.C. § 112b, and

Congress has not acted to contest or express objection to any of them.

2. Bilateral Treaties Authorizing International Sharing of Tax Information

Provide Further Support for the IGAs (Count 1) The four IGAs at issue are also authorized by treaties previously approved by the Senate.

The preambles of all four IGAs refer to the Canadian Convention, Czech Convention, Israeli

Convention, and Swiss Convention, respectively, as sources of authority. The Canadian, Czech,

Israeli, and Swiss IGAs are all with countries with which the United States has preexisting tax

treaties that already permit sharing between our governments of information of the kind

contemplated under FATCA. These tax treaties provide an independent source of authority for

the IGAs.

3. The IGAs Are Consistent with the FATCA Statute (Count 2) Count 2 of the Complaint is based on the false premise that “the IGAs directly

contradict” the FATCA statute and “establish a different regulatory scheme.” Doc. No. 8-1 at 17

(PageID 155); Complaint ¶ 121. Plaintiffs list only two purported inconsistencies between the

FATCA statute and IGAs, neither of which is an inconsistency at all. First, they complain that

Model 1 IGAs (Canadian, Czech, and Israeli) “exempt covered FFIs from the statutory

requirement that FFIs report account information directly to the Treasury Department, 26 U.S.C.

§ 1471(b)(1)(C), and instead allow such FFIs to report the account information to their national

governments[.]” Complaint ¶ 121. This is a reporting requirement that the Secretary has

discretionary power to waive, under § 1471(b)(2)(B), when the FFI “is a member of a class of

institutions with respect to which the Secretary has determined that the application of this section

is not necessary to carry out the purposes of this section.” The Secretary has exercised this


discretion to waive the requirement for all FFIs in Model 1 jurisdictions to report directly to

Treasury, because the IGA enables Treasury to obtain the same information from foreign

governments, making direct reporting by individual FFIs unnecessary.

Second, plaintiffs express dismay that Model 2 IGAs, like the one with Switzerland,

“exempt covered FFIs from the obligation ‘to obtain a valid and effective waiver’ of any foreign

law that would prevent the reporting of information required by FATCA, 26

U.S.C.§ 1471(b)(1)(F)(i), and instead obligates the foreign government to suspend such laws

with respect to FATCA reporting by covered FFIs[.]” Complaint ¶ 121. They bemoan that,

“[t]his deprives account holders of their right under the statute to refuse a waiver.” Id. However,

they are misreading § 1471 and, by extension, what the IGA “exempts” FFIs from having to do.

The obligation of the FFI under § 1471(b)(1)(F) is merely “to attempt to obtain a valid and

effective waiver” from the account holder of foreign nondisclosure laws or else to close an

account if a waiver is not obtained in a reasonable time. § 1471(b)(1)(F)(i), (ii) (emphasis

added). That is, refusing a waiver results in the account being closed. This provision is only

applicable when foreign law would (but for a waiver) prevent reporting of FATCA-required

information. The statute does not create or enshrine foreign legal rights, nor do IGAs.

Switzerland suspending laws that permit refusal of a waiver, in keeping with the IGA, is not

inconsistent with § 1471. Whatever rights the plaintiffs may have under foreign laws (or may

previously have had, pre-IGA), they are not a valid basis for a U.S. court to order relief against

the Government.

In any event, as with the first alleged inconsistency, there is also no inconsistency here

because § 1471(b)(2) expressly allows the Secretary to deem FFIs to be in compliance

with§ 1471(b)(1) regardless of whether they ever seek waivers from their clients

under§ 1471(b)(1)(F). The Secretary has exercised this statutory discretion, and as a result, the

“waiver” provision in § 1471(b)(1)(F) does not apply to FFIs in IGA countries.

* * * *


Cross References

Extradition treaty with Dominican Republic, Chapter 3.A.1. Mutual Legal Assistance Treaties (Kazakhstan, Algeria, Jordan), Chapter 3.A.2. Extradition case regarding treaty (Patterson), Chapter 3.A.3.a. State and local governments’ role with regard to treaty obligations, Chapter 6.A.2. Palestinian efforts to join ICC Rome Statute, Chapter 7.B. ILC’s work on most favored nation clauses, Chapter 7.D.2. Agreement for compensation for holocaust deportation, Chapter 8.C. Transmittal of tax treaties to U.S. Senate, Chapter 11.E.1. FATCA litigation (Crawford), Chapter 11.2. 2030 Agenda for Sustainable Development, Chapter 13.A.2.b. Montreal Protocol (ozone depletion), Chapter 13.A.3. Protocol on Heavy Metals, Chapter 13.A.4. Port State Measures Agreement and Antigua Convention, Chapter 13.B.2. Cultural Property MOUs with El Salvador and Nicaragua, Chapter 14.A. Hague Apostille Convention entry into force between U.S. and Liberia, Chapter 15.A.3. Middle East Peace Process, Chapter 17.A. Litigation involving alleged NPT breach, Chapter 19.B.2.C. Entry into force of Convention on Supplemental Compensation, Chapter 19.B.3. Nuclear security treaties, Chapter 19.B.5.a

Documents

A. CONCLUSION, ENTRY INTO FORCE, AND RESERVATIONS · 2019. 9. 6. · rights treaties to which they are a party, as well as other obligations of States under international law. Similarly,