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Trump Administration Announces Withdrawal from Four International Agreements

Published online by Cambridge University Press:  14 January 2019

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In October of 2018, the Trump administration announced that the United States would withdraw from four international agreements. On October 3, 2018, Secretary of State Mike Pompeo announced that the United States would withdraw from the Treaty of Amity, Economic Relations, and Consular Rights with Iran. Later that day, National Security Advisor John Bolton announced that the United States was also withdrawing from the Optional Protocol to the 1961 Vienna Convention on Diplomatic Relations (VCDR). Both withdrawals were triggered by pending International Court of Justice (ICJ) cases grounded in these treaties that were recently brought against the United States. Two weeks later, in an escalation of the ongoing trade dispute with China, the United States gave notice of withdrawal from the Universal Postal Union (UPU), the international body charged with overseeing the international mailing system. Finally, on October 22, 2018, President Trump announced that the United States would be terminating the Intermediate-Range Nuclear Forces (INF) Treaty with Russia. Unlike other withdrawals undertaken by the Trump administration, this latest round involved three Article II treaties to which the Senate had provided its advice and consent. In addition, the international commitments withdrawn from in this round were long-standing ones, with U.S. participation in the UPU going back as far as 1875.

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Type
General International and U.S. Foreign Relations Law
Information
American Journal of International Law , Volume 113 , Issue 1 , January 2019 , pp. 131 - 141
Copyright
Copyright © 2019 by The American Society of International Law 

In October of 2018, the Trump administration announced that the United States would withdraw from four international agreements. On October 3, 2018, Secretary of State Mike Pompeo announced that the United States would withdraw from the Treaty of Amity, Economic Relations, and Consular Rights with Iran. Later that day, National Security Advisor John Bolton announced that the United States was also withdrawing from the Optional Protocol to the 1961 Vienna Convention on Diplomatic Relations (VCDR). Both withdrawals were triggered by pending International Court of Justice (ICJ) cases grounded in these treaties that were recently brought against the United States. Two weeks later, in an escalation of the ongoing trade dispute with China, the United States gave notice of withdrawal from the Universal Postal Union (UPU), the international body charged with overseeing the international mailing system. Finally, on October 22, 2018, President Trump announced that the United States would be terminating the Intermediate-Range Nuclear Forces (INF) Treaty with Russia. Unlike other withdrawals undertaken by the Trump administration, this latest round involved three Article II treaties to which the Senate had provided its advice and consent. In addition, the international commitments withdrawn from in this round were long-standing ones, with U.S. participation in the UPU going back as far as 1875.

The U.S. decision to withdraw from the Treaty of Amity came on the heels of a unanimous ruling by the ICJ directing the United States to ensure that the sanctions it imposed on Iran after withdrawing from the Joint Comprehensive Plan of Action (JCPOA) did not affect the export of humanitarian goods to the country.Footnote 1 In announcing the withdrawal, Pompeo stated:

I'm announcing that the United States is terminating the 1955 Treaty of Amity with Iran. This is a decision, frankly, that is 39 years overdue. In July, Iran brought a meritless case in the International Court of Justice alleging violations of the Treaty of Amity. … Iran is attempting to interfere with the sovereign rights of the United States to take lawful actions necessary to protect our national security. And Iran is abusing the ICJ for political and propaganda purposes and their case, as you can see from the decision, lacked merit.

…

In light of how Iran has hypocritically and groundlessly abused the ICJ as a forum for attacking the United States, I am therefore announcing today that the United States is terminating the Treaty of Amity with Iran. I hope that Iran's leaders will come to recognize that the only way to secure a bright future for its country is by ceasing their campaign of terror and destruction around the world.Footnote 2

Ratified by the United States on September 14, 1956, after the Senate provided its advice and consent on July 11, 1956, the Treaty of Amity addresses economic and consular relations between the United States and Iran.Footnote 3 Article XXI of the Treaty provides for ICJ jurisdiction over disputes concerning the interpretation or application of the Treaty.Footnote 4 Article XXIII, which contains the withdrawal provision, provides in relevant part that “[e]ither High Contracting Party may, by giving one year's written notice to the other High Contracting Party, terminate the present Treaty at the end of the initial ten-year period or at any time thereafter.”Footnote 5 As a matter of U.S. domestic law, the prevailing view is that the president has the power to withdraw the United States from treaties approved by the Senate without returning to the Senate, as long as the withdrawal is consistent with international law.Footnote 6 This view has never been resolved by the Supreme Court and is not without dispute.Footnote 7 In practice, however, it is the approach taken by the executive branch, and provided that the executive branch has given the requisite written notice to Iran, the U.S. withdrawal will become effective in October 2019. While the practical importance of the Treaty of Amity has been limited since the Iranian revolution in the late 1970s, U.S. withdrawal will have the effect of removing a jurisdictional gateway to the ICJ that both countries have used in the past.Footnote 8

On the same day that Pompeo announced the planned U.S. withdrawal from the Treaty of Amity, Bolton declared that the United States would withdraw from the VCDR's Optional Protocol Concerning the Compulsory Settlement of Disputes, following a suit brought against the United States in the ICJ by Palestine.Footnote 9 This Optional Protocol provides for ICJ jurisdiction between parties over all disputes “arising out of the interpretation or application of” the VCDR, which in turn sets forth international legal rules regarding diplomatic relations between states.Footnote 10 The United States ratified the VCDR and the Optional Protocol on November 8, 1972, a few years after the Senate had provided its advice and consent to both on September 14, 1965.Footnote 11

Bolton stated:

In addition to the Treaty of Amity, I am announcing that the President has decided that the United States will withdraw from the Optional Protocol and Dispute Resolution to the Vienna Convention on Diplomatic Relations. This is in connection with a case brought by the so-called “State of Palestine,” naming the United States as defendant, challenging our move of our embassy from Tel Aviv to Jerusalem.

I'd like to stress: The United States remains a party to the underlying Vienna Convention on Diplomatic Relations and we expect all other parties to abide by their international obligations under the Convention.

Our actions today are consistent with the decisions President Reagan made in the 1980s in the wake of the politicized suits against the United States by Nicaragua to terminate our acceptance of the Optional Compulsory Jurisdiction of the International Court of Justice under Article 36(2) of the ICJ statute and his decision to withdraw from a bilateral treaty with Nicaragua.

It is also consistent with the decision President Bush made in 2005 to withdraw from the Optional Protocol to the Vienna Convention on Consular Relations following the ICJ's interference in our domestic criminal justice system.

So our actions today deal with the treaties and current litigation involving the United States before the International Court of Justice. Given this history and Iran's abuse of the ICJ, we will commence a review of all international agreements that may still expose the United States to purported binding jurisdiction dispute resolution in the International Court of Justice. The United States will not sit idly by as baseless, politicized claims are brought against us.Footnote 12

In response to a question, Bolton further emphasized that both treaty withdrawals were at least partly motivated by the administration's concerns about international courts:

Look, this is really—has less to do with Iran and the Palestinians than with the continued consistent policy of the United States to reject the jurisdiction of the International Court of Justice, which we think is politicized and ineffective. It relates, obviously, in part, to our views on the International Criminal Court and to the nature of so-called purported international courts to be able to bind the United States.Footnote 13

It is unclear whether the United States has a right under international law to withdraw from the Optional Protocol. The treaty itself does not contain an express provision governing withdrawal.Footnote 14 The validity of the U.S. withdrawal under international law therefore turns on whether it was performed in accordance with the relevant principles of customary international law. Article 56 of the Vienna Convention on the Law of Treaties (VCLT), which may reflect customary international law, provides:

  1. 1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:

    1. a. It is established that the parties intended to admit the possibility of denunciation or withdrawal; or

    2. b. A right of denunciation or withdrawal may be implied by the nature of the treaty.

  2. 2. A party shall give not less than twelve months’ notice of its intention to denounce or withdraw from a treaty under paragraph 1.Footnote 15

Article 56 “establishes a general presumption against unilateral denunciation.”Footnote 16 Absent an indication that the parties intended the possibility of withdrawal from the Optional Protocol, the lawfulness of the announced U.S. withdrawal turns on whether treaties aimed at establishing a dispute settlement process are the type for which a right of withdrawal should be implied. This question received attention in the lead-up to the VCLT, with Humphrey Waldock reporting his view to the International Law Commission that “‘a treaty of arbitration, conciliation or judicial settlement’” contained an implied right of withdrawal.Footnote 17 In the Fisheries Jurisdiction case, the ICJ declined to “examine or pronounce” upon the “views expressed by certain authorities to the effect that treaties of judicial settlement or declarations of acceptance of the compulsory jurisdiction of the Court are among those treaty provisions which, by their very nature, may be subject to unilateral denunciation in the absence of express provisions regarding their duration or termination.”Footnote 18

Even if the Optional Protocol is the kind of treaty covered by Article 56(1)(b), the United States has not sought to withdraw from it in a manner consistent with Article 56(2). Although Article 56(2) requires one year of notice, the United States indicated in its notification to the UN secretary-general (who serves as the Optional Protocol's depository) that its denunciation was immediately effective. The United States wrote that it “hereby withdraws” from the Optional Protocol and that “[a]s a consequence of this withdrawal, the United States will no longer recognize the jurisdiction of the International Court of Justice reflected in that Protocol.”Footnote 19 The United States had used identical language in communicating its withdrawal from the Optional Protocol to the Vienna Convention on Consular Relations in 2005.Footnote 20 If withdrawal with immediate effect is not allowed for this treaty as a matter of international law, there is a strong argument that it also lies beyond the president's power to effectuate as a matter of U.S. domestic law.Footnote 21

Two weeks after the United States announced its withdrawal from the Optional Protocol, it also declared its intent to withdraw from the Universal Postal Union (UPU).Footnote 22 Originally established in 1874, the UPU describes itself as “the second oldest international organization worldwide.”Footnote 23 Among other things, it establishes the rates that member states’ postal services may charge to deliver mail and small packages worldwide.Footnote 24 Pursuant to a 1969 agreement adopted by the UPU's governing body establishing what is known as the “terminal dues” system, the national postal service of a package's country of origin must reimburse the postal service of the destination country for the cost of handling and delivering the item.Footnote 25 Under the current arrangement, which is intended to “progressively incorporate the developing and least developed countries into a target system,” countries pay terminal dues that vary depending on their particular stage of economic development.Footnote 26 In practice, this has meant that the cost of shipping small packages to the United States from China and other developing countries is often cheaper than shipping domestically within the United States.Footnote 27 The U.S. Postal Service lost an estimated $170 million in fiscal year 2017 as a result of the terminal dues system.Footnote 28

In announcing the U.S. notice of withdrawal from the UPU, White House Press Secretary Sarah Sanders stated:

President Donald J. Trump received a report from the Department of State pursuant to the August 23, 2018, Presidential Memorandum on “Modernizing the Monetary Reimbursement Model for the Delivery of Goods Through the International Postal System and Enhancing the Security and Safety of International Mail.” The report noted that sufficient progress has not been made on reforming terms of the Acts of the Universal Postal Union (UPU) in line with the policies of the United States outlined in the Memorandum. The report also recommended steps the United States can take to address the problems identified in the Memorandum.

The President concurs with the Department of State's recommendation to adopt self-declared rates for terminal dues as soon as practical, and no later than January 1, 2020. The Department of State will also file notice that the United States will withdraw from the UPU. This will begin a one-year withdrawal process, as set forth in the UPU Constitution. During this period, the Department of State will seek to negotiate bilateral and multilateral agreements that resolve the problems discussed in the Presidential Memorandum. If negotiations are successful, the Administration is prepared to rescind the notice of withdrawal and remain in the UPU.Footnote 29

Expressing his regret at the U.S. decision, UPU Director-General Bishar Hussein pledged to meet with American officials regarding the withdrawal.Footnote 30 A spokesman for the Chinese Foreign Ministry also expressed disappointment with the U.S. decision, saying that “China is committed to upholding multilateralism” and pledging “to work with all relevant parties to contribute to the development of the international postal cause.”Footnote 31

Although neither the Presidential Memorandum nor the press statement characterized the U.S. move as part of the ongoing U.S. trade dispute with China, the decision could exacerbate already-strained trade relations between the two countries.Footnote 32 Reporting indicates that China was a focal point in the decision making surrounding withdrawal and that the United States will unilaterally increase postal rates on China if the announced withdrawal is concluded.Footnote 33

According to Article 12 of the UPU Constitution (as amended), the U.S. withdrawal becomes effective one year after notice is received by the UPU director-general,Footnote 34 which in this case would make withdrawal effective on October 17, 2019.Footnote 35 The U.S. withdrawal is particularly notable in light of the length of time which the United States has belonged to the UPU. The United States first became a party to the UPU's predecessor, the General Postal Union, in 1875, when it joined the Treaty Concerning the Formation of a General Postal Union,Footnote 36 also known as the Treaty of Berne. In the intervening years, the General Postal Union became the UPU (in 1878), became a UN specialized agency (in 1948), and made numerous changes to its foundational documents and regulatory practices.Footnote 37

As a matter of U.S. domestic law, discretion over international agreements related to the postal system has long been delegated by Congress to the executive branch.Footnote 38 The United States joined the Treaty of Berne not via the advice and consent of the Senate, but rather as an ex ante congressional-executive agreement that relied on preexisting authority delegated by Congress to the president and the post-master general.Footnote 39 Under the most recent statutory delegation, the secretary of state has “the power to conclude postal treaties, conventions, and amendments related to international postal services.”Footnote 40 The statute does not specify that it is delegating the power to terminate such agreements, but the overall structure of ex ante congressional-executive agreements gives reason to infer that the executive branch has this power as well.Footnote 41 This preexisting statutory delegation will enable the executive branch to make complementary agreements (should it decide to stay in the UPU) or substitute agreements (should it follow through on its notification and exit the UPU) without the need for subsequent congressional approval of these agreements.

Continuing his administration's retreat from various international commitments, President Trump stated on October 20, 2018, that he planned to withdraw the United States from the bilateral Intermediate-Range Nuclear Forces (INF) Treaty with Russia.Footnote 42 Explaining his decision to withdraw, Trump told reporters that “Russia has not, unfortunately, honored the agreement. So we're going to terminate the agreement, and we're going to pull out.”Footnote 43 He continued, “We'll have to develop those weapons, unless Russia comes to us, and China comes to us, and they all come to us and they say ‘Let's really get smart and let's none of us develop those weapons.’”Footnote 44

Ratified by the United States on June 1, 1988 after the Senate provided its advice and consent on May 27, 1988,Footnote 45 the INF prohibits the United States and Russia “from possessing, producing or test-flying ground-launched ballistic and cruise missiles with a range of 500 to 5,500 kilometers and their launchers.”Footnote 46 In a departure from other arms control treaties concluded between the United States and the Soviet Union, the INF, rather than regulating the quantity of weapons each country may possess, “call[s] for eliminating an entire class of weapons.”Footnote 47 It does not, however, prohibit the research and development of intermediate-range nuclear missiles.Footnote 48 In December 2017, amidst U.S. complaints about Russian violations of the Treaty, the State Department announced that the Pentagon had begun “INF Treaty-compliant research and development (R&D) by reviewing military concepts and options for conventional, ground-launched, intermediate-range missile systems.”Footnote 49

Russian violations were publicly announced by the Obama administration in 2014,Footnote 50 although the United States was reportedly aware of Russian infractions as early as 2008.Footnote 51 As a result of these activities, Congress in recent years began requiring the president to submit findings regarding Russian compliance with the INF. Section 1243 of the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year 2019, for example, requires the president to determine whether the core prohibitions of the INF Treaty “remain binding on the United States as a matter of United States law.”Footnote 52 The following section expresses the sense of Congress that Russian violations “constitute a material breach of the INF Treaty,” legally entitling the United States “to suspend the operation of the INF Treaty in whole or in part for so long as the Russian Federation continues to be in material breach of the INF Treaty.”Footnote 53 Apart from Russian INF Treaty violations, however, the Trump administration considers an additional interest in terminating the treaty to arise from China's military buildup in the Asia-Pacific region.Footnote 54 Because it was not a party to the INF Treaty, China has been able to build up its stockpile of intermediate-range ballistic missiles without restrictions.Footnote 55

The INF Treaty's withdrawal clause provides that:

  1. 1. This Treaty shall be of unlimited duration.

  2. 2. Each Party shall, in exercising its national sovereignty, have the right to withdraw from this Treaty if it decides that extraordinary events related to the subject matter of this Treaty have jeopardized its supreme interests. It shall give notice of its decision to withdraw to the other Party six months prior to withdrawal from this Treaty. Such notice shall include a statement of the extraordinary events the notifying Party regards as having jeopardized its supreme interests.Footnote 56

U.S. allies in Europe expressed dismay at the U.S. decision to withdraw.Footnote 57 Following subsequent conversations with allies, on December 4, 2018, Pompeo announced that “the United States today declares it has found Russia in material breach of the treaty and will suspend our obligations as a remedy effective in 60 days unless Russia returns to full and verifiable compliance.”Footnote 58 Pompeo made clear that this sixty-day delay was at the request of European allies.Footnote 59 Pompeo's remarks were accompanied by a statement issued the same day by the NATO foreign ministers declaring Russia in violation of the INF treaty, “call[ing] on Russia to return urgently to full and verifiable compliance” and noting that “[i]t is now up to Russia to preserve the INF treaty.”Footnote 60 In a question-and-answer period following Pompeo's remarks, he appeared to indicate that the United States would give formal notice of its withdrawal from the INF treaty at the end of the sixty-day period if Russia failed to move sufficiently towards compliance within that period.Footnote 61

The four recently announced U.S. withdrawals are consistent with a broader trend by the Trump administration of pulling out of international commitments and engagements. Since Trump took office in January 2017, his administration has announced the present or future U.S. withdrawal from the Paris Agreement, the JCPOA, UNESCO, and the UN Human Rights Council, as well as disengaging from the Global Compact on Migration and the Trans-Pacific Partnership.Footnote 62 Those commitments and engagements were multilateral, mostly of recent vintage, and joined by the United States as a matter of domestic law not via the advice and consent of the Senate, but rather through alternative constitutional processes. While continuing the trend of disengagement, the four withdrawals announced in October 2018 had some different features from the earlier wave. Two of the international agreements at issue were bilateral rather than multilateral; three of these agreements were joined by the United States as Article II treaties that received the advice and consent of two-thirds of the Senate; and all of these agreements were long-standing ones, dating back to 1875, 1956, 1972, and 1988. These announced terminations indicate that the Trump administration has come to look beyond the rollback of major Obama-era initiatives and to undertake a more wide-ranging reexamination of U.S. international commitments.

References

1 For further discussion of this ICJ case and the provisional measures ordered in it, see generally Galbraith, Jean, Contemporary Practice of the United States, 113 AJIL 174 (2019)Google Scholar.

2 U.S. Dep't of State Press Briefing, Remarks to the Media (Oct. 3, 2018), at https://www.state.gov/secretary/remarks/2018/10/286417.htm [https://perma.cc/2V8J-3FPS].

3 Treaty of Amity, Economic Relations, and Consular Rights, Iran-U.S., Aug. 15, 1955, 8 UST 899.

4 Id. Art. XXI(2).

5 Id. Art. XXIII(3).

6 While “[t]he Constitution provides that the President can make treaties with the advice and consent of two-thirds of the Senate, … it says nothing specific about what domestic actor or actors have the power to withdraw the United States from treaties.” Galbraith, Jean, The President's Power to Withdraw the United States from International Agreements at Present and in the Future, 111 AJIL Unbound 445, 446 (2018)Google Scholar. Since the 1930s, presidents have unilaterally withdrawn the United States from numerous Article II treaties, including President Carter's high-profile decision to withdraw the United States from its mutual defense treaty with Taiwan in the late 1970s. See generally Bradley, Curtis A., Treaty Termination and Historical Gloss, 92 Tex. L. Rev. 773 (2014)Google Scholar (tracing the historical development of the constitutional understanding that the president has the unilateral authority to terminate Article II treaties). Both Restatement (Third) of Foreign Relations Law and Restatement (Fourth) of Foreign Relations Law consider the president to have the authority to withdraw the United States from Article II treaties where this withdrawal is permitted under international law. Restatement (Third) of Foreign Relations Law § 339 (1986); Restatement (Fourth) of Foreign Relations Law § 313 (2018).

7 In Goldwater v. Carter, the Supreme Court concluded that it lacked jurisdiction to address the constitutionality of President Carter's withdrawal from the mutual defense treaty with Taiwan. 444 U.S. 996 (1979). For a recent argument that the president does not have the unilateral authority to terminate some Article II treaties even where permitted to do so by international law, see Koh, Harold Hongju, Presidential Power to Terminate International Agreements, 128 Yale L. J. F. 432, 454 (2018)Google Scholar (arguing that “U.S. withdrawal from a long-standing treaty or international organization … should not become effective without congressional involvement”).

8 Galbraith, supra note 1, at __ (noting three prior ICJ cases grounded in the Treaty of Amity, two of which were brought by Iran); see also Chimène Keitner, What Are the Consequences of the Trump Administration's Recent Treaty Withdrawals?, Just Security (Oct. 17, 2018), at https://www.justsecurity.org/61101/consequences-trump-administrations-treaty-withdrawals (describing the Treaty of Amity as “defunct de facto for decades”); John Bellinger, Thoughts on the ICJ's Decision in Iran v. United States and the Trump Administration's Treaty Withdrawals, Lawfare (Oct. 5, 2018), at https://www.lawfareblog.com/thoughts-icjs-decision-iran-v-united-states-and-trump-administrations-treaty-withdrawals (calling the U.S. withdrawal a “prudent” response to Iran's use of the Treaty of Amity “as an instrument of lawfare”).

9 White House Press Release, Press Briefing by Press Secretary Sarah Sanders, Small Business Administrator Linda McMahon, and National Security Advisor (Oct. 3, 2018), at https://www.whitehouse.gov/briefings-statements/press-briefing-press-secretary-sarah-sanders-small-business-administrator-linda-mcmahon-national-security-advisor-100318/ [https://perma.cc/CTX6-W8N5] [hereinafter Bolton Briefing]. For further discussion of this ICJ case, see generally Galbraith, Jean, Contemporary Practice of the United States, 113 AJIL 174 (2019)Google Scholar.

10 Vienna Convention on Diplomatic Relations and Optional Protocol on Disputes, Art. 1, Apr. 18, 1961, 23 UST 3227, 500 UNTS 95 [hereinafter VCDR & Op-Pro].

11 See id. Several more years would pass before the United States passed legislation consistent with the VCDR with respect to diplomatic immunity. See Marmon, William F. Jr., Note, Diplomatic Relations Act of 1978 and Its Consequences, 19 Va. J. Int'l L. 131, 139 (1978)Google Scholar (observing that the preexisting statutory scheme, unlike the VCDR, “did not distinguish among different classes of diplomatic staff for purposes of granting immunity”).

12 Bolton Briefing, supra note 9.

13 Id.

14 See generally VCDR & Op. Pro, supra note 10.

15 Vienna Convention on the Law of Treaties, Art. 56, 1155 UNTS 331, 8 ILM 679 (1969) [hereinafter VCLT]. The VCLT includes other grounds for withdrawal that do not appear applicable here, including material breach under specified circumstances, see id. Art. 60, impossibility of performance, see id. Art. 61, and fundamental change of circumstances, see id. Art. 62. See also Gabčíkovo-Nagymaros Project (Hung. v. Slov.), 1997 ICJ Rep. 7, 65 (Sept. 25) (concluding that “the stability of treaty relations requires that the plea of fundamental change of circumstances be applied only in exceptional cases”). The United States is not a party to the VCLT but regards many of its provisions as reflective of customary international law. See U.S. Dep't of State, Vienna Convention on the Law of Treaties, at https://www.state.gov/s/l/treaty/faqs/70139.htm [https://perma.cc/5R7Q-ABQF].

16 Christakis, Theodore, Article 56, in 2 The Vienna Conventions on the Law of Treaties: A Commentary 1251, 1257 (Corten, Olivier & Klein, Pierre eds., 2011)Google Scholar.

17 Helfer, Laurence R., Terminating Treaties, in The Oxford Guide to Treaties 634, 638 (Hollis, Duncan ed., 2012)Google Scholar (quoting Waldock's 1963 report to the International Law Commission and noting the tension between his position and the approach previously recommended by Gerald Fitzmaurice); see also Christakis, supra note 16, at 1273 (noting that Waldock's approach on this issue “provoked a sharp reaction from some members of the ILC”).

18 Fisheries Jurisdiction (U.K. v. Iceland), Judgment, 1973 ICJ Rep. 3, at para. 29 (Feb. 2), at https://www.icj-cij.org/files/case-related/55/055-19730202-JUD-01-00-EN.pdf.

19 United Nations, Optional Protocol to the Vienna Convention on Diplomatic Relations, Concerning the Compulsory Settlement of Disputes, at https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY& mtdsg_no=III-5&chapter=3&clang=_en (reporting the U.S. communication of October 12, 2018).

20 Letter from Condoleezza Rice, U.S. Secretary of State, to Kofi Annan, UN Secretary-General (Mar. 7, 2005), available at https://www.state.gov/documents/organization/87288.pdf [https://perma.cc/2RS9-DVZL].

21 See Restatement (Fourth) of Foreign Relations Law § 313 (“[a]ccording to established practice, the President has the authority to act on behalf of the United States in … withdrawing the United States from treaties, either on the basis of terms in the treaty allowing for such action (such as a withdrawal clause) or on the basis of international law that would justify such action”); Bradley, supra note 6, at 824 n. 292 (stating that “if international law causes a treaty to remain in force, then the U.S. Constitution may give the treaty a domestic-law status that cannot be terminated unilaterally by the President” and noting the tension between this point and the 2005 withdrawal from the Optional Protocol to the Vienna Convention on Consular Relations).

22 White House Press Release, Statement from the Press Secretary (Oct. 17, 2018), at https://www.whitehouse.gov/briefings-statements/statement-press-secretary-38 [https://perma.cc/82Q7-VCVK] [hereinafter White House UPU Press Release].

23 Universal Postal Union, The UPU, http://www.upu.int/en/the-upu/the-upu.html (last visited Nov. 4, 2018).

24 See id.

25 See Universal Postal Union, About Terminal Dues and Transit Charges, at http://www.upu.int/en/activities/terminal-dues-and-transit-charges/about-terminal-dues-and-transit-charges.html.

26 Id.; see also Eliot Kim, Withdrawal from the Universal Postal Union: A Guide for the Perplexed, Lawfare (Oct. 31, 2018), at https://www.lawfareblog.com/withdrawal-universal-postal-union-guide-perplexed.

27 Kim, supra note 26. Goods from Chinese companies account for approximately 60% of all packages shipped into the United States. Glenn Thrush, Trump Opens New Front in His Battle with China: International Shipping, N.Y. Times (Oct. 17, 2018), at https://www.nytimes.com/2018/10/17/us/politics/trump-china-shipping.html.

28 Kim, supra note 26 (citing a report from the Postal Regulatory Commission).

29 White House Press Release, Statement from the Press Secretary (Oct. 17, 2018), at https://www.whitehouse.gov/briefings-statements/statement-press-secretary-38 [https://perma.cc/82Q7-VCVK] [hereinafter White House UPU Press Release].

30 Universal Postal Union Press Release, Statement on the Decision of the United States of America to Withdraw from the Universal Postal Union Treaties (Oct. 17, 2018), at http://news.upu.int/no_cache/nd/statement-on-the-decision-of-the-united-states-of-america-to-withdraw-from-the-universal-postal-union-treaties.

31 Chinese Foreign Ministry Press Release, Foreign Ministry Spokesperson Lu Kang's Regular Press Conference on October 18, 2018 (Oct. 18, 2018), at https://www.fmprc.gov.cn/mfa_eng/xwfw_665399/s2510_665401/t1605226.shtml.

32 Danielle Paquette, Trump Ditches 144-Year-Old Postal Pact that Boosts Chinese Retailers, Wash. Post (Oct. 17, 2018), at https://www.washingtonpost.com/business/economy/trump-ditches-144-year-old-postal-pact-that-boosts-chinese-retailers/2018/10/17/88aefea6-d234-11e8-8c22-fa2ef74bd6d6_story.html?utm_term=.d320f10491d6.

33 Thrush, supra note 27.

34 Fourth Additional Protocol to the Constitution of the UPU, Art. III (1989) (amending Article 12 of the UPU Constitution).

35 Universal Postal Union Press Release, Statement of UPU Deputy General Pascal Clivaz on the Decision by the Government of the United States of America to Withdraw from the Universal Postal Union Treaties (Oct. 18, 2018), at http://news.upu.int/no_cache/nd/statement-of-upu-deputy-director-general-pascal-clivaz-on-the-decision-by-the-government-of-the-united-states-of-america-to-withdraw-from-the-universal-postal-union-treaties (observing that notice was received on October 17, 2018).

36 Treaty Concerning the Formation of a General Postal Union, 19 Stat. 577 (1874).

37 Rebecca Bratspies, Universal Postal Union, Oxford Pub. Int'l L., at http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e569.

38 For the earliest such delegation, see Act of Feb. 20, 1792, ch. 7, § 26, 1 Stat. 232, 239 (authorizing the postmaster general to enter into agreements with international counterparts for mail delivery).

39 At the time, the operative statutory delegation came from An Act to Revise, Consolidate, and Amend the Statutes Relating to the Post Office Department, 17 Stat. 283 (1872) (providing that “the Postmaster-General, by and with the advice and consent of the President, may negotiate and conclude postal treaties or conventions, and may reduce or increase the rates of postage on mail-matter conveyed between the United States and foreign countries”). The postmaster general of the United States duly “ratified and approved” the Treaty of Berne on March 8, 1875, and the president “approve[d]” the treaty on the same day. Treaty Concerning the Formation of a General Postal Union, 19 Stat. 577, 588 (1874). This use of an ex ante congressional-executive agreement rather than an Article II treaty would later be cited as historical practice justifying the broader use of congressional-executive agreements as a substitute for Article II treaties. E.g., McDougal, Myres S. & Lans, Asher, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy: I, 54 Yale L. J. 181, 344 (1945)Google Scholar (“the United States has remained a member of the Universal Postal Union since 1875 [and i]n [that] case also, the agreement was approved only by the President, pursuant to authority contained in the postal statutes”); An Act to Provide for the Participation of the United States in the International Monetary Fund and the International Bank for Reconstruction and Development: Hearing on H.R. 3314 Before the S. Comm. on Banking & Currency, 79th Cong. 547 (1945) (“Reference has been made above to United States membership in the Universal Postal Union pursuant to specific authorization by the Congress to the executive to ‘negotiate and conclude postal treaties or conventions’ and to ‘reduce or increase the rates of postage on mail matter conveyed between the United States and foreign countries.’”) (citing the Act of June 8, 1872).

40 Postal Accountability and Enhancement Act, Pub. L. No. 109-435, at §405, 120 Stat. 3198, 3230 (2006) (codified at 39 U.S.C. § 407) (further setting out objectives that the executive branch should pursue in its negotiations).

41 See Stephen P. Mulligan, Cong. Research Serv., R44761, Withdrawal from International Agreements: Legal Framework, the Paris Agreement, and the Iran Nuclear Agreement 7 (2018) (observing that “[f]or congressional-executive agreements that Congress has preauthorized by statute (called ex ante agreements), Presidents sometimes have unilaterally terminated the agreement without objection”). The statute does expressly indicate that the secretary of state has power to “renegotiate” postal treaties as well as to make them in the first place. Pub. L. No. 109-435, at § 405; 120 Stat. at 3231.

42 Donald J. Trump, Remarks in an Exchange with Reporters in Elko, Nevada, 2018 Daily Comp. Pres. Doc. No. 718, at 3 (Oct. 20).

43 Id.

44 Id. at 4–5.

45 Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Elimination of Their Intermediate-Range and Shorter-Range Missiles, U.S.-U.S.S.R., Dec. 8, 1987, 1657 UNTS 2.

46 Hilary Hurd & Elena Chachko, U.S. Withdrawal from the INF Treaty: The Facts and the Law, Lawfare (Oct. 25, 2018), at https://www.lawfareblog.com/us-withdrawal-inf-treaty-facts-and-law.

47 Id.

48 John Hudson & Paul Sonne, Bolton Pushes Trump Administration to Withdraw from Landmark Arms Treaty, Wash. Post (Oct. 19, 2018), at https://www.washingtonpost.com/world/national-security/bolton-pushes-trump-administration-to-withdraw-from-landmark-arms-treaty/2018/10/19/f0bb8531-e7ce-4a34-b7ba-558f8b068dc5_story.html?utm_term=.c7ca9ac48f46.

49 U.S. Dep't of State Press Release, Bureau of Arms Control, Verification and Compliance Factsheet INF Treaty: At a Glance (Dec. 8, 2017), at https://www.state.gov/t/avc/rls/2017/276361.htm [https://perma.cc/H9HQ-JW6A].

50 U.S. Dep't of State, Adherence to and Compliance with Arms Control, Nonproliferation and Disarmament Agreements and Commitments 8 (2014), available at https://www.state.gov/documents/organization/230108.pdf [https://perma.cc/4R6D-6QL2].

51 Hurd & Chachko, supra note 46.

52 Pub. L. No. 115-232, § 1243(a)(2), __ Stat. __ (2018).

53 Id. § 1244, __ Stat. at __; cf. VCLT, supra note 15, Art. 60 (setting out the conditions under international law for suspension of treaty obligations in response to the material breach by another party).

54 David E. Sanger & William J. Broad, U.S. to Tell Russia It Is Leaving Landmark I.N.F. Treaty, N.Y. Times (Oct. 19, 2018), at https://www.nytimes.com/2018/10/19/us/politics/russia-nuclear-arms-treaty-trump-administration.html.

55 Hurd & Chachko, supra note 46.

56 INF Treaty, supra note 45, Art. XV.

57 Julian Borger & Andrew Roth, EU Warns Trump of Nuclear Arms Race Risk after INF Withdrawal Move, Guardian (Oct. 23, 2018), at https://www.theguardian.com/world/2018/oct/22/eu-us-nuclear-arms-race-inf-treaty-bolton-moscow (describing responses from European leaders); Julian Borger, European Diplomats Mount Last-Ditch Effort to Stop United States Scrapping INF Treaty, Guardian (Nov. 18, 2018), at https://www.theguardian.com/world/2018/nov/18/inf-treaty-european-diplomats-us-russia (describing European efforts to try to ward off the U.S. withdrawal).

58 U.S. Dep't of State Press Briefing, Press Availability at NATO Headquarters (Dec. 4, 2018), at https://www.state.gov/secretary/remarks/2018/12/287873.htm [https://perma.cc/4FEG-PC6A] [hereinafter Pompeo Briefing].

59 Id. (“I will tell you, our European partners approve that extra time [of sixty days]”).

60 NATO Press Release, Statement on the Intermediate-Range Nuclear Forces (INF) Treaty (Dec. 4, 2018), at https://www.nato.int/cps/en/natohq/official_texts_161122.htm?selectedLocale=en.

61 Pompeo Briefing, supra note 58 (“stating that “[t]he six-month period will begin to run 60 days from now” while also noting that “we would welcome a Russian change of heart … [and] over the next 60 days they have every chance to do that”).

62 See Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States, 111 AJIL 1036 (2017)Google Scholar (discussing the announced U.S. withdrawal from the Paris Agreement); Galbraith, Jean, Contemporary Practice of the United States, 112 AJIL 107 (2018)Google Scholar (discussing the announced U.S. withdrawal from UNESCO); 112 AJIL 311 (2018) (discussing the cessation of U.S. participation in the Global Compact on Migration); 112 AJIL 315, 320 n. 42 (2018) (noting the decision not to seek ratification of the Trans-Pacific Partnership); 112 AJIL 514 (2018) (discussing the U.S. withdrawal from the JCPOA); 112 AJIL 745 (2018) (discussing the U.S. withdrawal from the UN Human Rights Council). The trend is not entirely in one direction, as the Trump administration has also pursued the making or renegotiation of some international agreements. See, e.g., Galbraith, Jean, Contemporary Practice of the United States, 113 AJIL 151 (2018)Google Scholar (discussing the renegotiated NAFTA); 113 AJIL 142 (2018) (describing the recent passage of implementing legislation for the Marrakesh Treaty and noting more generally that from January 2017 to November 2018 the U.S. Senate advised and consented to six treaties).