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1. Intention of the parties to be bound in international law; 2. Significance of the arrangement;
3. Requisite specificity, including objective criteria for determining enforceability;
4. The necessity for two or more parties to the arrangement; 5. Form.
1. Intention of the parties to be bound in international law. The central requirement is that the parties intend their undertaking to be of legal, and not merely political or personal, effect. Documents intended to have political or moral weight, but not intended to be legally binding, are not international agreements. An example is the Final Act of the Helsinki Conference on Cooperation and Security in Europe.
In addition, the agreement must be governed by international law. Most instruments are silent as to governing law, but the intent is normally to seek guidance from rules of international law when questions arise with respect to interpretation or application. However, if the agreement specifies another legal system as entirely governing interpretation or application, we do not consider the arrangement to be a true international agreement. An example of the latter is a foreign military sales contract governed in its entirety by the law of the District of Columbia.
2. Significance of the arrangement.
It is our interpretation of sections 112a and 112b that minor or trivial undertakings, even if couched in legal language and form, do not constitute international agreements. Significance of the obligations undertaken is cited in the House Report on the Case Act (House Rept. 92-1301) as a relevant variable in deciding whether a particular document is an international agreement under the Act. Senator [Clifford] Case himself excluded "trivia" from the coverage of the Act (Hearings on S. 596, October 21, 1971, p. 65).
We have not developed detailed guidelines to assist in deciding what level of significance must be reached before a particular arrangement becomes an international agreement. This must remain a matter of judgment, taking into account the entire context of the particular transaction. It is frequently a matter of degree. For example, a promise to sell one map to a foreign nation is not an international agreement; a promise to sell one million maps probably is an international agreement. At what point between one and one million the transaction turned into an agreement is difficult to say.
The... letter from Acting Secretary of State Kenneth Rush in September 1973 to all Government departments and agencies addresses itself to the problem. It requires agencies to transmit to the Department for possible transmittal to the Congress "any agreements of political significance, any that involve a substantial grant of funds, any involving loans by the United States or credits payable to the United States, any that constitute a commitment of funds that extends beyond a fiscal year or would be a basis for requesting new appropriations, and any that involve continuing or substantial cooperation in the conduct of a particular program or activity, such as scientific, technical, or other cooperation, including the exchange or receipt of information and its treatment."
3. Requisite specificity, including objective criteria for determining enforceability.
International agreements require a certain precision and specificity setting forth the legally binding undertakings of the parties. Many international diplomatic undertakings are couched in legal terms, but are unenforceable promises because there are no objective criteria for determining enforceability of such undertakings. For example, a promise "to help develop a more viable world economic system" lacks the specificity essential to constitute a legally binding international agreement. At the same time, undertakings as general as those of articles 55 and 56 of the U.N. Charter have been held to create internationally binding obligations (though not self-executing ones).
4. The necessity for two or more parties to the arrangement.
While unilateral commitments on occasion may be legally binding and may be significant in international relations, they do not constitute international agreements. For example, a promise by the President to send money to Country Y to help earthquake victims, but without any obligation whatever on the part of Country Y, would be a gift and not an international agreement. It might be an important undertaking, but not all undertakings in international relations are in the form of treaties or executive agreements. There may be a difficult question whether a particular undertaking is truly unilateral in nature, or is part of a larger bilateral or multilateral set of undertakings. Parallel "unilateral" undertakings by two or more states may constitute an international agreement.
While form as such is not normally an important factor in the law of treaties and international agreements, it does deserve some weight. Documents which do not follow the customary form for international agreements, as to matters such as style, final clauses, signatures, entry into force dates, etc., may or may not be international agreements under the law. Failure to use the customary form may on occasion constitute evidence of a lack of intent to be legally bound by the arrangement. On the other hand, if the general content and context reveals an intention to enter into a legally binding relationship, the lack of proper form will not be decisive.
Two types of international arrangements which frequently cause difficulty in this context are agency-to-agency agreements and implementing agreements.
a. Agency-to-Agency Agreements.
Despite variations in prior practice, it is currently our position that agency level agreements are international agreements for purposes of publication and transmittal to the Congress if they meet the above criteria. The fact that an agreement is signed by a particular department or agency of the United States Government is not determinative. Agencies can and do bind the U.S. Government in international law, and it is questionable whether any Government agency has a separate legal personality. What is important is the substance of the agreement. This is of particular
current significance since many departments and agencies are now signing international agreements in their own name. The Rush letter was designed to ensure that the Department is made aware of these agreements in a timely fashion and is placed in a position to transmit them to the Congress, if in its view it is required to do so by the Case Act.
b. Implementing Agreements.
Implementing agreements present still more complicated problems. Assuming that an implementing agreement meets the criteria specified above, the question then becomes how precisely it is anticipated and identified in the underlying agreement it is designed to implement. For example, suppose the underlying agreement calls for the sale by the United States of 1,000 tractors, and a subsequent implementing agreement requires a first installment on this obligation by the sale of 100 tractors of the Brand X variety. In that case, the implementing agreement, is sufficiently identified in the underlying agreement, and would not be subject to the requirements of sections 112a and 112b. However, if the underlying agreement is general in nature, and the implementing agreement meets the specified criteria, it might well be subject to sections 112a and 112b. For example, if the "umbrella" agreement calls for the conclusion of "agreements for agricultural assistance," but without further specificity, then a particular agricultural assistance agreement subsequently concluded in "implementation" of that obligation, provided it meets the specified criteria, would constitute an international agreement independent of the "umbrella" agreement. It would be an "implementing agreement," but nevertheless subject to publication and Case Act requirements.
D. All officers who have not done so should familiarize themselves with the provisions of the Circular 175 Procedure, which sets forth detailed guidelines and information on Department procedures in the negotiation, signature, publication, and registration of treaties and other international agreements of the United States. The Circular 175 Procedure is found at 11 FAM 700. Dept. of State Airgram No A-1394, Mar. 9, 1976; Dept. of State File No. P76 0034-655. For excerpts from the letter of Sept. 6, 1973, from Kenneth Rush, Acting Secretary of State, to all executive branch departments and agencies, see the 1973 Digest, pp. 187-188. For the Circular 175 Procedure, see the 1974 Digest, pp. 199-215.
Intention of the Framers of the Constitution
A memorandum dated September 10, 1976, on the intention of the framers of the Constitution with respect to international agreements other than treaties was submitted by the Legal Adviser's Office of the Department of State to the Senate Foreign Relations Committee and the Subcommittee on International Security and Scientific Affairs of the House Committee on International Relations. The memorandum responded to arguments which had been advanced in House subcommittee hearings on H.R. 4438 (the Morgan-Zablocki bill) and Senate. committee hearings on S. Res. 486 (the Clark resolution) (see ante, pp.
242-252 and 257-263) to the effect that executive agreements were not intended by the framers of the Constitution to be a proper mode of concluding international agreements.
The legal memorandum examines the actual practice, both before and after adoption of the Constitution, by those framers of the Constitution who subsequently became President. Excerpts from the memorandum follow:
First, under the Articles of Confederation, which gave Congress far more control over agreements than the Constitution, three important executive agreements were concluded. On November 30, 1782, the Preliminary Articles of Peace between the United States and Great Britain were concluded as an executive agreement, thus bringing hostilities to an end between the two countries. (See 2 Miller, Treaties and Other International Acts of the United States of America, 1936, p. 96.) In 1786 the United States and Morocco entered into a ship signal agreement (2 Miller 219), not as a treaty, but as an executive agreement. In 1784 the United States, at the direction of Congress, amended a treaty of amity and commerce with France by means of an executive agreement. (See 2 Miller 158 and McClure, International Executive Agreements, New York: Columbia University Press, pp. 37-38.)
The men responsible for these agreements were Thomas Jefferson, John Adams, and Benjamin Franklin.
After the adoption of the Constitution, the Congress enacted legislation approved by President Washington in 1792 authorizing the Postmaster General to make international agreements for reciprocal delivery of mailed matter. 1 Stat. 236. Many such agreements have been concluded and they have been upheld by the courts. See Cotzhausen v. Nazro, 107 U.S. 215, 217 (1882). ...
The early practice by the framers of the Constitution also reveals that executive agreements might be authorized not only by statute, but by the Constitution itself. In 1799 President John Adams, one of the founding fathers of the nation, acting without authority of statute or treaty, concluded an agreement with the Netherlands to settle private American claims against that country. The agreement was not submitted to the Senate, was not proclaimed by the President, and was not ratified. David Hunter Miller, one of America's foremost scholars in the area of international agreements, wrote as follows about this agreement:
this agreement with the Netherlands (which would now be called an executive agreement) is the first instance of a definitive
settlement of a claim of an American citizen against a foreign government by diplomatic negotiation, fixing the amount; and it is the earliest precedent for the practice later settled and now undoubted, that submission of such agreements to the Senate is unnecessary. (Miller, Treaties and Other International Acts of the United States of America, 1936, p. 1079.)
Another important example of a pure executive agreement concluded by a framer of the Constitution was the 1813 agreement with Great Britain for an exchange of prisoners of war, concluded by President James Madison. . . . The lengthy and formal agreement Madison concluded with Britain, entered into during the War of 1812, had nothing to do with the actual battlefield conduct of the war, but rather includes provisions on the treatment of noncombatants, the parole, safety, and sustenance of prisoners, and the methods for effecting the transfers. (For the text and history of this executive agreement, see 2 Miller, op. cit., pp. 557-573.)
An executive agreement of great importance during this early period was the Rush-Bagot Agreement of 1817 with Great Britain, about which President James Monroe inquired of the Senate whether it was "such an arrangement as the executive is competent to enter into, by the powers vested in it by the Constitution, or is such an one as requires the advice and consent of the Senate. This agreement to limit naval armaments on the Great Lakes was of some consequence in the life of the United States. . . . in fact one of the precursors to the contemporary unarmed border with Canada.
It is significant that President Monroe, despite the importance of the agreement, doubted whether a treaty was necessary.
... President Monroe sent the agreement to the Senate after he implemented it and nearly a full year after it was concluded, asking the question quoted above. While the Senate approved the agreement (after it had entered into force) and President Monroe proclaimed it, there were no ratifications exchanged. Professor Louis Henkin notes that "President Monroe had acted under the agreement before the Senate consented." (Foreign Affairs and the Constitution, 1972, p. 428.) ..
The very language of Monroe's request indicates the appropriateness of certain international agreements entered into by the President under his constitutional powers. Was the agreement "such an arrangement as the executive is competent to enter into, by the powers vested in it by the Constitution, or is such an one as