Document Type

Article

Disciplines

International Law

Abstract

The Constitution expressly grants to the President and the Senate the power to make treaties' but does not explicitly address the issue of treaty 2 termination. As such, "[t]he silence of the Constitution renders a textual analysis impossible, but the nature, character, and structure of the treaty making power' 3 and the conclusions to be drawn from the legal status of existing treaties allow for logical inferences to be made in determining how a treaty may be properly terminated. Resolving the constitutional issue of how treaties can be terminated is obviously a serious matter because the termination of a treaty involves fundamental questions of foreign policy.4 The analytical process involved in resolving this issue turns on examining what claims the respective branches of the government have in the process of terminating treaties.

The President has historically taken the lead role in conducting foreign relations for the United States and has consistently been involved in the treaty termination process. In this light, the Restatement of Foreign Relations Law only provides a role for the President in its section addressing the authority to terminate treaties under the law of the United States.6 However, several discernable trends have created a strong possibility that Congress may attempt to assert more authority in the foreign affairs area generally, and the treaty termination area specifically. First, international agreements (including both treaties and executive agreements) have become increasingly significant in determining the national well-being. Second, a perception exists that the institution of the Presidency is not as strong as it was just a few years ago. Last, the courts have not ruled definitively in certain areas relevant to the treaty termination question. These perceived trends must be examined in greater detail in order to then analyze Congress' case for the legitimacy of its assumed attempted "power grab" in the treaty termination area.

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