TACIT AMENDMENTS
Oona A. Hathaway, Haley Nix
Saurabh Sanghvi, and Sara Solow
1
CONTENTS
I. UNRATIFIED TREATY AMENDMENTS ................................................................3
A. Modifications by Executive Agreement .......................................................4
1. Examples of Treaties Amended by Executive Agreement ....................4
2. Legality of Amendment by Executive Agreement ................................6
B. Modifications by Tacit Amendment .............................................................9
1. Different Types of Tacit Amendment Treaty Regimes .......................10
2. Legality of Tacit Amendments ............................................................16
II. THE SENATE’S RESPONSE TO UNRATIFIED AMENDMENT PROCESSES ..........18
A. Technical or Administrative Provisions ......................................................19
B. Prior Notice .................................................................................................21
C. Consent Requirement ..................................................................................23
D. Objection by Resolution .............................................................................23
III. CONCLUSION ...................................................................................................24
1
Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law School, and J.D.
candidates, Yale Law School, respectively. This report was prepared in connection with a course
at Yale Law School, International Law and Foreign Affairs. Our thanks to Rebecca Crootof,
Philip Levitz, Elizabeth Nielsen, Aileen Nowlan, William Perdue, Chelsea Purvis, and Julia
Spiegel for their assistance in preparing this report.
Nov 15, 2011
Tacit Amendments 2
As a general rule, the President is “‘without authority, except by and with
the advice and consent of the Senate, to modify a treaty provision.’”
2
Thus, in
amending a treaty, parties effectively sign and ratify a new treaty, to which the
standard treaty processes apply. However, numerous treaties have established
procedures for modifications to the regime that do not rise to the level of formal
amendments to the treaty. This report focuses on such “unratified treaty
amendments”—which include what are called “tacit amendments.”
Unratified amendments are amendments to treaties that are made without
formal Senate ratification.
3
They have proven a useful tool in creating robust
treaty regimes in a changing world. Just as the use of executive agreements in
general has expanded rapidly in the past century,
4
treaty regimes increasingly
have adopted amendment processes that do not require a full ratification process.
And just as executive agreements have raised questions about Senate
prerogatives, so too have unratified amendments.
There are two primary ways that the U.S. government modifies underlying
treaties through an unratified amendment
5
—first, through the use of executive
agreements; and, second, through the use of tacit amendments. Part I describes
how each process works. It argues that both pass constitutional muster so long as
the Senate has provided its clear advice and consent to the use of such processes
(although not necessarily to the substance of the modifications) in the first
instance. Part II outlines and evaluates the various ways in which the Senate has
responded to attempts to modify treaties by executive agreement or by tacit
2
See CONG. RESEARCH SERV., TREATIES AND OTHER INTERNATIONAL AGREEMENTS: THE ROLE OF
THE
UNITED STATES SENATE, S. PRT. 106-71, at 181 (2001) [hereinafter “CRS Report”], available
at http://www.au.af.mil/au/awc/awcgate/congress/treaties_senate_role.pdf (quoting 5 G
REEN
HAYWOOD HACKWORTH, DIGEST OF INTERNATIONAL LAW 429 (1927).
3
See Curtis A. Bradley, Unratified Treaty Amendments and Constitutional Process 1 (Feb. 6,
2006) (unpublished manuscript on file with author, prepared for Duke Workshop on Delegating
Sovereignty) (“Unratified treaty amendments are changes to treaties proposed by international
bodies that become binding upon parties to the treaty without the expectation of a national act of
ratification.”).
4
See CRS Report, supra note 2, at 21-22.
5
Parties also can modify treaty terms in a number of ways that may not require subsequent Senate
ratification where they did not anticipate the modifications in the treaty itself. For example, the
U.S. government might acquiesce in actions of foreign governments that effectively modify a
treaty. Since World War II, the President has not submitted foreign reservations to a U.S. ratified
treaty to the Senate for approval, even though those reservations modify the terms of the treaty.
Similarly, the President has in the past acquiesced to temporary departures by foreign
governments in times of abnormal conditions, such as war or pending action to a new treaty. Id. at
181.
Tacit Amendments 3
amendment in the past. It concludes that the Senate’s requirements of prior notice
and its focus on technical provisions, while not always easy to achieve in practice,
are sensible ways to maintain Senate prerogatives. Part III concludes.
I. UNRATIFIED TREATY AMENDMENTS
This section divides unratified amendments into two primary categories:
those that proceed by executive agreement and those that proceed by some form
of tacit amendment. In this report, treaties that can be modified by executive
agreement are those that allow the President to agree expressly on changes with
other parties that modifies the treaty terms, binding the parties but not requiring
Senate consent. Tacit amendment regimes as those where the treaty terms can be
modified and the United States bound to the new terms, even without the
President taking any action at all.
6
In fact, the President may specifically oppose
the amendment altogether and yet still be bound by the change.
7
In all cases, the
amendments occur without returning to the Senate or to Congress as a whole for
any further consent.
As we will see, notwithstanding important concerns about Senate
prerogatives, all of these unratified amendment procedures pass constitutional
muster—provided, again, that the initial treaty clearly provides for such
6
The literature does not consistently define the notion of “tacit amendment,” and while some
definitions seem to focus on whether the executive (speaking on behalf of the party) must give
tacit assent, others focus simply on whether the modifications require Senate consent and therefore
appear to equate “tacit amendments” and “unratified amendments.” Compare Bradley, supra note
3, at 1 (defining tacit amendments as those which “are adopted by an international body and
automatically take effect for a party unless the party objects within a specified time period”) with
CRS Report
, supra note 2, at 182 (describing tacit amendment regimes as those that “establish
processes for their own modification which do not require further Senate involvement”).
Unsurprisingly, then, the term “tacit amendment” has been used to describe many different types
of amendments. See CRS Report
, supra note 2, at 175 (“The [tacit amendment] practice takes
various forms—Presidential acquiescence, nonsubmission of reservations by other parties,
implementing bodies with the authority to make changes, and amendment by fewer than all of the
parties”).The Senate Foreign Relations Committee in one report seems to have adopted the
terminology that equates “tacit amendment” (or in this case, “tacit agreement”) with “unratified
amendments.” See S. E
XEC. REP. NO. 108-12, at 34 (2004) (borrowing from the CRS Report and
describing ‘tacit agreement’ regimes as those that “establish processes for their own modification
which do not require further Senate involvement.”). This report, however, will use the term “tacit
amendment” regimes to refer to one subset of unratified amendment regimes: those that allow
modifications without explicit executive consent.
7
Bradley, supra note 3, at 1 (explaining that “[o]ften these amendments will apply to a party only
if it fails to object to them, but sometimes they will apply to a party even over its objection”).
Tacit Amendments 4
subsequent modifications. This conclusion is rooted in the well-established
history of executive agreements made pursuant to an Article II treaty.
A. Modifications by Executive Agreement
As the Congressional Research Service has noted, “[n]umerous
agreements pursuant to treaties have been concluded by the Executive,
particularly of an administrative nature, to implement in detail generally worded
treaty obligations.”
8
One scholar, David Koplow, has distinguished between
“filling the gaps” executive agreements—those that fill in with specific detail
what the treaty establishes in broad strokes—and “changing the standards”
agreements –those that amend provisions of the originally ratified treaty directly.
9
Treaties that provide for “standard changing” executive agreements—the
primary focus of this section—might outline an initial standard in the treaty text
but then allow parties to later amend that standard through executive agreement.
10
They may present greater concern to the Senate insofar as they allow the treaty
text ratified by the Senate to be changed, rather than simply supplemented,
without subsequent Senate approval.
11
1. Examples of Treaties Amended by Executive Agreement
A couple of bilateral wildlife conservation treaties provide for
amendments to certain treaty provisions without Senate ratification. The United
States-Japan Convention on the Protection of Migratory Birds provides an initial
list of birds to be protected, but allows parties to modify that list by diplomatic
note.
12
The United States-Canada Treaty on Pacific Salmon is similar, allowing
parties to agree to modifications of each nation’s allowable catch of salmon.
13
8
CRS Report, supra note 2, at 86.
9
David A. Koplow, When is an Amendment Not an Amendment?: Modification of Arms Control
Agreements Without the Senate, 59
U. CHI. L. REV. 981, 1042-43 (1992).
10
Id. at 1035-36, 1042.
11
But see id. at 1045 (recognizing that “the distinction between ‘gap filling’ and ‘standards
changing' is unreliable, subject to differences of view and amenable to evasion by clever
wordsmiths”).
12
Convention for the Protection of Migratory Birds and Birds in Danger of Extinction, and Their
Environment art. II(2), U.S.-Jap.,Mar. 4, 1972, 25 U.S.T. 3329 (providing that “[t]he list of the
species defined as migratory birds in accordance with paragraph 1 of this Article is contained in
the Annex to this Convention” and “[t]he competent authorities of the Contracting Parties shall
review from time to time the Annex and, if necessary, make recommendations to amend it”). In
1988, the parties exchanged diplomatic notes to amend the list of protected birds pursuant to this
process. Digest of Federal Resource Laws of Interest to the U.S. Fish and Wildlife Service:
Treaties List, U.S.
FISH & WILDLIFE SERV., http://www.fws.gov/laws/lawsdigest/
Tacit Amendments 5
While these treaties contemplate amendment through a simple diplomatic
note, a number of treaties in the arms control context establish commissions that
operate as forums for the parties to negotiate and effectuate standard-setting
agreements. At least some of the amendments the parties agree on through these
commissions are not subject to Senate ratification. Such treaties include the
Intermediate-range Nuclear Forces (INF) Treaty
14
, the 1990 Protocol to the
Threshold Test-Ban Treaty (TTBT)
15
, the Strategic Arms Reduction Treaty
(START),
16
and most recently, the New START Treaty.
17
The INF Treaty, signed in 1987 and ratified by the Senate in 1988,
established a “Special Verification Commission” (SVC). The parties could “meet
within the framework”
18
of the SVC to, among other things, “agree upon such
measures as may be necessary to improve the viability and effectiveness of this
Treaty.”
19
Notably, “[s]uch measures shall not be deemed [formal] amendments to
the Treaty,”
20
and thus are not subject to ratification. The other treaties contain
similar provisions. The original START I Treaty creates a “Joint Compliance and
Inspection Commission” with a similar “viability and effectiveness” mandate
21
and an additional proviso that the changes may not affect “substantive rights or
obligations” of the parties.
22
The 1990 Protocol to the TTBT created a Bilateral
Consultative Commission (BCC) which has slightly more specific authorities,
including the ability to modify verification procedures to enhance “effective
treaty.html#MIGBIRDJAP (last visited Dec. 4, 2010).
13
Treaty Concerning Pacific Salmon art. XIII, U.S.-Can., Jan. 28, 1985, T.I.A.S. No. 11,091.
14
Treaty on the Elimination of Their Intermediate-Range and Shorter-Range Missiles art. XIII,
U.S.-U.S.S.R., Dec. 8, 1987, S. TREATY DOC. NO. 100-11 [hereinafter “INF Treaty”].
15
Protocol to the Treaty on the Limitation of Underground Nuclear Weapons Tests, §XI, U.S.-
U.S.S.R., Jun. 1, 1990, S. TREATY DOC. NO. 101-19 [hereinafter “Protocol to the Threshold Test-
Ban Treaty”].
16
Treaty on the Reduction and Limitation of Strategic Offensive Arms art. XV, U.S.-U.S.S.R.,
July 31, 1991, S.
TREATY DOC. NO. 102-20 [hereinafter “START I Treaty”].
17
Treaty On Measures for the Further Reduction and Limitation of Strategic Offensive Arms art.
V, U.S.-Russ., Jan. 3, 1993, S. T
REATY DOC. NO. 103-1 [hereinafter “New START Treaty”].
18
INF Treaty, supra note 14, art. XIII.
19
Id.
20
Protocol Regarding Inspections Relating to the INF Treaty, supra note 14 art. VI(4).
21
START I Treaty, supra note 16, art. XV.
22
Protocol on the Joint Compliance and Inspection Commission Relating to the Start I Treaty,
supra note 16, art. VIII (“[T]he Parties may agree upon such additional measures as may be
necessary to improve the viability and effectiveness of the Treaty. The Parties agree that, if it
becomes necessary to make changes in this Protocol that do not affect substantive rights or
obligations under the Treaty, they shall use the Commission to reach agreement on such changes,
without resorting to the procedure for making amendments set forth in Article XVIII of the
Treaty.”).
Tacit Amendments 6
implementation of the basic aims” of the arrangements.
23
The New START
Treaty also creates a Bilateral Consultative Commission similar to the
commission established in START I.
24
2. Legality of Amendment by Executive Agreement
Courts have yet to rule on the legality of using executive agreements to
amend treaties, either as gap-fillers or as standard-changers. Nonetheless, there is
a general consensus among international law authorities and scholars that such
executive agreements are permissible, as long as they are expressly authorized
either by an Article II treaty or by an ex post congressional-executive
agreement.
25
The delegation of authority to the President to conclude an executive
agreement is generally considered legal—as long as it is explicit.
26
In such cases,
the President may use the authority delegated to him to amend the treaty through
executive agreement without submitting the agreement to the Senate.
27
These
23
Protocol to the Threshold Test-Ban Treaty, supra note 15, §XI (providing for a Bilateral
Consultative Commission through which parties may, among other things, “agree upon such
modifications” to “verification procedures” under the treaty that would enhance “effective
implementation of the basic aims of the Treaty or this Protocol”); see also id. (clarifying that
“[s]uch agreed modifications shall not be considered amendments to the Treaty or this Protocol”)..
24
New START Treaty, supra note 17, art. V; see also Protocol on Exhibition and Inspection of
Heavy Bombers Relating to the New Start Treaty, id., §2(3) (“The Parties agree that, if it becomes
necessary to make changes in this Protocol that do not affect substantive rights or obligations
under the Treaty, they shall use the Bilateral Implementation Commission to reach agreement on
such changes, without resorting to the procedure for making amendments set forth in Article VII
of the Treaty.”).
25
See 11 U.S. DEP’T OF STATE, FOREIGN AFF. MANUAL (FAM) 723.2-2(A) (2006) (“The President
may conclude an international agreement pursuant to a treaty brought into force with the advice
and consent of the Senate, the provisions of which constitute authorization for the agreement by
the Executive without subsequent action by the Congress.” (emphasis added)); R
ESTATEMENT
(THIRD) OF THE FOREIGN RELATIONS LAW § 303(3) (1987) (“[T]he President may make an
international agreement as authorized by treaty of the United States.”) (emphasis added)
[hereinafter R
ESTATEMENT].
26
See LOUIS HENKIN, FOREIGN AFFAIRS AND THE U.S. CONSTITUTION 219-220 & n.167 (2d ed.
1996) (noting that the President’s power to “execute treaties may include authority to do so by
supplemental executive agreement”); Koplow, supra note 9, at 1035-36. For work questioning the
wisdom of such delegations and their effect on the balance of power between the President and
Congress, see Oona A. Hathaway, Presidential Power over International Law: Restoring the
Balance, 119 Y
ALE L. J. 140 (2009).
27
See CRS Report, supra note 2, at 180-81; Koplow, supra note 9, at 1035 (providing that at least
with respect to gap-filler executive agreements, “if the Senate, in approving an initial treaty,
explicitly authorizes the executive to conclude follow-on accords that supplement or modify the
Tacit Amendments 7
executive agreements, moreover, are enforceable: They have “the same effect and
validity as the treaty itself, and [are] subject to the same constitutional limitations
as the treaty.”
28
It follows that executive agreements concluded pursuant to a
treaty authorization may supersede any contrary provisions in that same treaty.
29
Nevertheless, two countervailing constitutional doctrines cast some doubt
on the legality of treaty amendment by executive agreement—even when clearly
authorized in the treaty to be amended. We consider these constitutional concerns
briefly, ultimately concluding that neither prohibits the practice.
First, the non-delegation doctrine theoretically guards against the
delegation of legislative powers outside the legislative branch.
30
Although never
directly repudiated, the non-delegation doctrine fell into disuse almost as soon as
it emerged.
31
Today it is understood to simply require Congress to articulate
“intelligible principle[s]” to cabin subsequent agency action.
32
We therefore
terms, than a later executive agreement within that delegated cope would appear to be fully
warranted); id. at 1042.
28
RESTATEMENT, supra note 25, § 303 cmt f. (“An executive agreement may be made by the
President pursuant to a treaty, Subsection (3), when the executive agreement can fairly be seen as
implementing the treaty, especially if the treaty contemplated implementation by international
agreement. Such an executive agreement has the same effect and validity as the treaty itself, and is
subject to the same constitutional limitations as the treaty..”).
29
See Wilson v. Girard, 354 U.S. 524, 528-29 (1957) (“In the light of the Senate's ratification of
the Security Treaty after consideration of the Administrative Agreement, which had already been
signed, and its subsequent ratification of the NATO Agreement, with knowledge of the
commitment to Japan under the Administrative Agreement, we are satisfied that the approval of
Article III of the Security Treaty authorized the making of the Administrative Agreement and the
subsequent Protocol embodying the NATO Agreement provisions governing jurisdiction to try
criminal offenses.”).
30
See A.L.A Schechter Poultry Corp. v. United States, 295 U.S. 495, 539-42 (1935) (holding the
Recovery Act’s “sweeping delegation of legislative power” to the executive branch was
unconstitutional in that it “se[t] up no standards” to constrain administrative action); Panama Ref.
Co. v. Ryan, 293 U.S. 388, 430 (1935) (holding that “in every case in which the question has been
raised, the Court has recognized that there are limits of delegation which there is no constitutional
authority to transcend,” and that such limitations were exceeded in the present case).
31
See George I. Lovell, That Sick Chicken Won’t Hunt: The Limits of a Judicially Enforced Non-
Delegation Doctrine, 17 CONST. COMMENT. 79, 79-80 (2000) (“[T]he doctrine's existence remains
‘fugitive,’ both in the law and in the academy. The Supreme Court has shown little sustained
inclination toward reviving the doctrine, and many of the scholars who express some support for it
don't seem to take it very seriously.”); Harold J. Krent, Delegation and its Discontents, 94 C
OLUM.
L. REV. 710, 710-11 (1994) (reviewing DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY
(1993) and also noting the “demise of a judicially imposed nondelegation doctrine)); Bradley,
supra note 3, at 6.
32
Touby v. United States, 500 U.S. 160, 165 (1991) ( “So long as Congress ‘lay[s] down by
legislative act an intelligible principle to which the person or body authorized to [act] is directed to
Tacit Amendments 8
conclude that it is unlikely that the non-delegation doctrine presents a legal barrier
to amendment by executive agreement, as long as the Senate authorizes such
practice in clear terms in an Article II treaty.
33
Second, the Supreme Court has invalidated congressional efforts to
delegate authority to the President to actually change legislation after its passage
by Congress—other than through a veto of the entire piece of legislation. In
Clinton v. New York, the Court struck down the Line Item Veto Act on the
grounds that constitutional separation of powers prohibited the President from
effectively amending legislation after it had become law.
34
However, the Clinton
holding only applied to statutes, and the Court has never indicated that a similar
prohibition should apply to treaties as well. In fact, treaties are sufficiently distinct
from statutes in at least three ways, such that applying the Clinton reasoning
would appear improper. First, unlike statutes, only the President may negotiate the
terms of a treaty; the creation of treaty provisions is therefore not a matter of
legislative craft akin to writing a statute. Second, only the President may ratify the
treaty, meaning that the President may chose whether and when to ratify a treaty
once he has secured Senate advice and consent. Finally, the President arguably
retains authority to unilaterally withdraw from a treaty, whereas the President may
not unilaterally repeal laws.
35
All three differences suggest that the President has
more constitutional authority to amend treaties after receiving advance consent
than he does for statutes, and that Clinton is thus not a barrier to treaty
amendment via an executive agreement duly authorized by an Article II treaty.
36
Thus, it seems unlikely that existing constitutional precedent precludes
treaty amendment by executive agreement. The weight of authority supports the
constitutionality of amendment by executive agreement when the agreement is
conform, such legislative action is not a forbidden delegation of legislative power.’”) (citing J.W.
Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)).
33
For a discussion of the nondelegation doctrine in this context, see Hathaway, supra note 26, at
176-80.
34
Clinton v. City of New York, 524 U.S. 417, 448-49 (1998). Curtis Bradley has explored the
potential application of Clinton to the treaty context. See Bradley, supra note 3, at 5 (“If applied to
the treaty context, [Clinton] might suggest that treaty amendment authority cannot be delegated to
either the President or to an international body because such a delegation allows for the creation of
treaty obligations without compliance with the procedures specified in Article II for making
treaties.”).
35
For a discussion of withdrawal from treaties and congressional-executive agreements, see Oona
A. Hathaway, Treaties’ End: The Past, Present, and Future of International Lawmaking In the
United States, 117 Y
ALE L. J. 1236, 1323-1338 (2008).
36
Bradley has similarly concluded that Clinton “concerned the legislative process rather than the
treaty process” and given the “important differences between the two,” it is defensible to argue
that Clinton does not apply to bar unratified treaty amendments. Bradley, supra note 3, at 7.
Tacit Amendments 9
within the express scope of the authority granted by the Senate in the underlying
Article II treaty.
B. Modifications by Tacit Amendment
A second manner by which unratified treaty amendments can take effect is
through a “tacit amendment” (sometimes described as “tacit acceptance” or “tacit
agreement”) process. Several multilateral treaties, including those to which the
United States is a party, have allowed for processes. The most common form of
tacit amendment regime is when a treaty provides for an international body or
conference of the parties to make future amendments to the underlying treaty,
without further action by the parties. The international body will promulgate
policies fleshing out or modifying the terms of the treaty, and those policies will
take effect without Senate ratification and without a formal executive agreement.
As will be shown below, sometimes the amendments created by tacit amendment
regimes can become effective in the United States without the President’s
participation in the international body process (if the President does not act, he
may nonetheless “tacitly” accept the amendment); and sometimes, the
amendments can become effective even if the President objects.
The United States has a long history of entering into treaties with tacit
amendment processes. In the 1940s, the United States joined the Convention on
International Civil Aviation
37
and the International Convention for the Regulation
of Whaling,
38
both of which included tacit amendment apparatuses. Tacit
amendment processes in treaties became more prevalent in the 1970s, when they
became a part of a number of maritime treaties that operated under the auspices of
the International Maritime Organization (IMO, then known as the
Intergovernmental Marine Consultative Organization).
39
IMO adopted these
procedures after encountering substantial delays in implementing technical
provisions of various maritime treaties.
40
Since then, tacit amendment processes
37
See infra note 65.
38
See infra notes 54-56 and accompanying text.
39
See, e.g., International Convention for the Safety of Life at Sea art. VIII, Nov. 1, 1974, T.I.A.S.
No. 9700, 1184 U.N.T.S. 2 (detailing the procedure by which “tacit amendments” to the
convention can enter into force); and the Convention on the Facilitation of International Maritime
Traffic art. VII, Apr. 9, 1965, 18 U.S.T. 411, 591 U.N.T.S. 265.
40
See William Tetley, Uniformity of International Private Maritime Law --The Pros, Cons, and
Alternatives to International Conventions –How to Adopt an International Convention, 24 T
UL.
MAR. L. J. 775, 817 (2000) (recounting history of the tacit acceptance process for the IMO
treaties); see also Conventions: Adopting a Convention, Entry into Force, Accession, Amendment,
Enforcement, Tacit Acceptance Procedure, I
NTERNATIONAL MARITIME ORGANIZATION,
Tacit Amendments 10
have appeared in multilateral treaties relating to the environment, arms control,
and other areas. The United States has been a party to a large number of these
treaties. The tacit amendment procedures have been lauded for handling regular
technical updates efficiently, for introducing predictability to amendment
processes, for encouraging conformance with international norms, and for
limiting reservations.
41
1. Different Types of Tacit Amendment Treaty Regimes
This section distinguishes between three regimes that allow for tacit
amendments to treaties through the use of international bodies: regimes in which
treaty alterations require the unanimous consent of all parties represented in the
international body tasked with updating the treaty (what we will call “consensus
amendments”); regimes in which international committees or conferences can
pass amendments without full consent, but in which state parties may opt out of
changes (“opt-out amendments”); and regimes in which a commission or
conference creates changes, possibly without unanimous consent, that bind all
parties (“binding amendments”). The Senate Foreign Relations Committee has
referred to treaties in each of these categories as “tacit amendment” treaties.
42
a. Consensus Amendments
A number of treaty regimes that empower an international body to amend
a treaty—e.g., an international commission, group, or conference of the parties—
operate on a “consensus” model. Like treaties modified by executive agreement,
these tacit amendment regimes require that all state parties represented in the
international body tasked with carrying out the treaty agree to any future policy
that the body adopts.
43
For example, the Open Skies Treaty creates an Open Skies
Consultative Commission, which can make improvements “to the viability and
effectiveness of the Treaty” (including setting annual quotas under the treaty) as
well as implement “minor matters of a technical or administrative nature.”
44
The
Open Skies Consultative Commission, however, requires consensus, defined as
“the absence of any objection by any State Party to the taking of a decision or the
http://www.imo.org/About/Conventions/Pages/Home.aspx (last visited Dec. 4, 2010) (providing
an extensive history of the introduction of the tacit acceptance process for IMO treaties).
41
CLEOPATRA ELMIRA HENRY, THE CARRIAGE OF DANGEROUS GOODS BY SEA: THE ROLE OF THE
INTERNATIONAL MARITIME ORGANIZATION IN INTERNATIONAL LEGISLATION 71-72 (1985).
42
See S. EXEC. REP. NO. 108-12, at 34 (2004) (describing the “tacit agreement” or “tacit
amendment” process and then citing a number of treaties including treaties discussed in every
category below).
43
See supra Subection I.A.1.
44
Treaty on Open Skies art. X(5), Mar. 24, 1992, S. TREATY DOC. NO. 102-37.
Tacit Amendments 11
making of a recommendation,” before it can act.
45
Similarly, the Treaty on
Conventional Forces in Europe allows a Joint Consultative Group to make
improvements on “minor matters of a technical or administrative nature” to the
treaty
46
, but only with consensus, defined again as the “absence of any objection
by any representative of a State party.”
47
While the treaties in this category require consensus before amendments
take hold, they arguably allow for “tacit amendments” since the consensus
requirement only asks that no party objects. If a party were not present at the
commission’s meeting, it could become bound by the amendments without its
consent.
48
Moreover, the amendment process is “unratified” as the amendments
take hold without being subject to formal state ratification procedures.
b. Opt-out Amendments
The standard form for an “opt-out” tacit amendment regime within a treaty
is as follows:
The treaty authorizes some international body or commission to
effectuate and/or implement the terms of the treaty. The body then has meetings at
45
Id. art. X(2).
46
Treaty on Conventional Armed Forces in Europe art. XVI(5), Nov. 19, 1990, S. TREATY DOC.
NO. 102-8, 30 I.L.M. 6. [hereinafter “CFE Treaty”].
47
Id. art. XVI(4).
48
The Chemical Weapons Convention presents an interesting example of how the Senate has in
the past reacted to an amendment process that might allow for a party to be bound if it does not
show up to the meeting. While this part of the Convention’s amendment process requires
ratification and thus does not fit within the processes discussed in this report, the Senate’s
approach might be applied to tacit amendment regimes that proceed by consensus amendment. See
Convention on the Prohibition of Development, Production, Stockpiling, and Use of Chemical
Weapons and on Their Destruction, Jan. 13, 1993, S.
TREATY DOC. NO. 103-21, 32 I.L.M. 800
[hereinafter “Chemical Weapons Convention”]. General amendments to the Convention can be
made at “Amendment Conferences.” Id. art. XV(3). If a majority of the parties to the Convention
vote in favor, no party votes against, and all parties voting in favor ratify it, the amendment takes
effect. Id. This process is applicable to any sort of amendment to the Convention (as opposed to
the limited matters that the relevant commissions handle in the Open Skies or CFE treaty). Id. art.
XV(1). To handle the risk that major amendments could be passed in such conferences without
United States approval, the Senate conditioned ratification of the Convention on a requirement that
the United States attend all Amendment Conferences and provide a positive or negative vote to
each amendment. See S. E
XEC. REP. NO. 104-33 at 20 (resolution of ratification providing
condition that “the United States will be present and participate fully in all Amendment
Conferences and will cast its vote”). With this condition in place, amendments of this kind could
not be made to the Convention without the advice and consent of the Senate: a positive vote would
mean the Senate would have to ratify the amendment for it to enter into effect, and a negative vote
would mean that the amendment would fail at the Amendment Conference itself. Id. Separately,
the Convention provides for a tacit amendment process to its annexes, discussed in the next
section, infra.
Tacit Amendments 12
which it proposes amendments to the treaty. If the amendment passes some
threshold, it is submitted to the state parties and those parties have a window of
time to register their disapproval of the amendment. If a certain number of parties
disapprove (sometimes called a “blocking minority”), the amendment may fail
altogether. Otherwise, it will be adopted, but only with respect to the parties that
did not object.
49
These regimes do offer clear channels for state parties to object
to amendments, but they are “tacit amendment” regimes nonetheless. The reason
is: like the consensus regimes profiled above (which provided for “tacit
acceptance” of treaty amendments when a state party failed to attend a relevant
meeting), opt-out regimes also allow for tacit acceptance of treaty amendments, if
the representative of a state party fails to object to a proposed amendment either at
the international body meeting or within a given time period thereafter.
The United States has entered into numerous treaties that fit into this
framework, all with slight variations on the precise procedures. A few examples
include:
• The Chemical Weapons Convention allows certain annexes to be amended
by a tacit amendment process if the changes relate “only to matters of an
administrative or technical nature.”
50
Specifically, such changes can be
proposed to an “Executive Council,” (a rotating council of 41 member
parties).
51
If the Executive Council approves, then the amendment is
adopted so long as no party objects within 90 days.
52
If a party does so
object, the amendment fails.
53
• The International Convention for the Regulation of Whaling allows the
International Whaling Commission (a body represented by one member
from each party) to amend a schedule attached to the Convention which
covers issues like the species subject to protection, open and closed waters
and seasons, among other things.
54
Amendments can be passed by a three-
fourths vote of the Commission members voting.
55
They then go into
49
See e.g., A.O. Adede, Amendment Procedures for Conventions with Technical Annexes: The
IMCO Experience, 17
VA. J. INT’L. L. 201, 206-08 (1977).
50
Chemical Weapons Convention, supra note 48, art. XV(4).
51
Id. art. VIII(23).
52
Id. art. XV(5)(d).
53
Id.
54
International Convention for the Regulation of Whaling art. V(1), Dec. 2, 1946, 62 Stat. 1716,
161 U.N.T.S. 72. See id. art. III(1) for the makeup of the commission.
55
Id. art. III(2).
Tacit Amendments 13
effect for all the parties except those that object within a certain period of
time.
56
• The Convention on the Marking of Plastic Explosives for the Purpose of
Detection allows a council to propose amendments to the technical
annexes to the parties.
57
If a proposed amendment has not been objected to
by five or more state parties within 90 days, it goes into effect for all
parties not objecting.
58
Otherwise, the amendment is referred to the
Commission for further reconsideration.
59
• The Convention on the Facilitation of International Maritime Traffic has
an annex with “standards” and “recommended practices”
60
that
governments are urged – but not required – to follow.
61
As amended in
1973, the convention provided for a tacit amendment procedure to modify
the annex.
62
Specifically, a committee of the International Maritime
Organization can approve amendments, which then go into effect at the
end of 15 months unless within 12 months, at least one third of parties
formally notify the IMO that it is unacceptable to them.
63
The amendments
only apply to those who do not object.
64
Other treaties with similar provisions include the Convention on
International Civil Aviation,
65
the Convention on the Prevention of Marine
56
Id. art. V(3).
57
Convention on the Marking of Plastic Explosives for the Purposes of Detection art. VII, Mar. 1,
1991, S. TREATY DOC. NO. 103-8, 2122 U.N.T.S. 359.
58
Id. art. VII(3).
59
Id. art. VII(5).
60
Convention on the Facilitation of International Maritime Traffic, supra note 39, Annex sec. B.
61
S. EXEC. REP. NO. 93-37, at 2 (1974) (explaining that the Annex sets forth standards and
recommended practices relating to public health, customs, and immigrations regulations, and that
“governments are urged to bring their practices and procedures into conformity with the
recommended levels but are not required to do so”).
62
Id. at 2-3 (describing that the earlier methods for amending the treaty did not “allo[w] changes
to be made in the Annex as quickly or as efficiently as desired” and so that in 1973, the treaty was
amended to include a “tacit amendment procedure”).
63
1973 Amendment to Article VII of the Convention on Facilitation of International Maritime
Traffic art. VII(2)(b), Nov. 19, 1973, 1394 U.N.T.S. 527.
64
Id. art. VII(2)(d).
65
Convention on International Civil Aviation art. 54, Dec. 7, 1944, 61 Stat. 1180, 15 U.N.T.S. 295
(providing for annexes that will contain “standards and recommended practices” under the treaty);
id. art. 90 (providing for amendment of annexes (with standards and recommended practices) by a
council that administers the treaty unless a majority of contracting states register their
disapproval).
Tacit Amendments 14
Pollution by Dumping of Wastes and Other Matter,
66
the International Convention
for the Safety of Life at Sea,
67
the 1973 Protocol to the 1949 International
Convention for the Northwest Atlantic Fisheries,
68
the Convention on
International Regulations for Preventing Collisions at Sea,
69
and the International
Convention for the Prevention of Pollution From Ships.
70
c. Binding Amendments
Finally, some treaties empower international bodies to amend the treaty
provisions without requiring either unanimous consent at the international-body
level, or offering an opt-out process. We call these “binding amendments.” Three
examples include the World Trade Organization (WTO), the Montreal Protocol,
and a protocol between the United States and the International Atomic Energy
Association (IAEA).
First, the WTO can amend its agreements through Ministerial
Conferences.
71
Although the WTO encourages the use of consensus at these
conferences, it does not require it, and at least in theory, changes can be made to
66
Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter art.
XV(2), Dec. 29, 1972, 26 U.S.T. 2403 , 1046 U.N.T.S. 120 (providing for a procedure whereby
annexes can be amended based on “scientific or technical considerations” and providing that if an
amendment is approved by “a two-thirds majority of those present at a meeting,” it goes into effect
for all parties who do not object within a hundred days).
67
International Convention for the Safety of Life at Sea, art. VIII(b), Nov. 1, 1974, 32 U.S.T. 47
(providing a procedure whereby much of the Annex can be amended by a two-thirds vote of a
committee. (provided that at least one third of the “contracting governments” are present at the
time of a vote) and the amendment is deemed accepted with respect to all non-objecting parties
within two years, unless a sufficient number of parties object).
68
1973 Protocol to the 1949 International Convention for the Northwest Atlantic Fisheries art. I,
Oct. 6, 1970, 1082 U.N.T.S. 276 [hereinafter “Protocol for N.W. Fisheries”] (amending art. XVII
of the underlying Convention to allow amendments to the Convention when approved by three-
fourths of the parties at a meeting of a commission, if they are thereafter approved by three fourths
of contracting governments; but specifying that the amendment does not take effect at all,
however, if at least one party objects within ninety days of being notified of the proposed
amendment);.see also infra note (discussing how the Senate required the President to object
unless the Senate consented to the amendment).
69
Convention on International Regulations for Preventing Collisions at Sea art. VI, Oct. 20, 1972,
28 U.S.T. 3459 (providing for amendment of the regulations if an assembly votes in favor by a
two-thirds majority, and if within a time decided by the assembly, no more than one-third of the
parties object; the amendments are effective on any non-objecting party).
70
International Convention for the Prevention of Pollution from Ships art. 16(2)(f), Nov. 2, 1973,
1340 U.N.T.S. 184 (providing for amendment of annexes and appendices after a two-thirds vote
by the appropriate body, in no less than ten months unless a sufficient number of parties object).
71
See Agreement Establishing the World Trade Organization art. X, Apr. 15, 1994, 1867 U.N.T.S.
154.33 I.L.M. 1144.
Tacit Amendments 15
agreements by a supermajority over the objections of any one party.
72
Another
well-known example is the Montreal Protocol.
73
Conferences of the parties called
under this protocol can adopt changes to certain annexes by two-thirds majority
vote, even over the objection of the remaining parties.
74
Finally, the Protocol
Additional to the Safeguards Agreement Between the United States and the
IAEA
75
also potentially allows for amendments without the United States’
consent. This protocol allows the IAEA’s Board of Governors to amend the
annexes to the Protocol (setting forth the definitions of nuclear activities,
equipment, and material subject to declaration) “upon the advice of an open-
ended working group of experts established by the Board.”
76
The Board
(comprising representatives of 35 member states, including the United States)
generally takes action on the basis of consensus, but may act even when there is
dissent.
77
What is common across all three examples mentioned above—and what
distinguishes them from the first two tacit amendment treaty regimes—is that
such treaties allow for amendments to take effect vis-à-vis a State party, even in
the face of an explicit objection by that party to the amendment. Scholars have
questioned whether such unfettered delegation of authority to these institutions is
real, because the institutions in practice almost always act by consensus.
78
That
may be true. But these treaty regimes nonetheless do at least formally provide the
possibility that a party will be bound to an amendment even if it registers outright
dissent.
72
See id. art. X(3) (providing a process whereby, even for changes to the agreement that alter “the
rights and obligations” of parties to the WTO, members of a Ministerial Conference may decide
by a three-fourths vote that an amendment either requires a party to consent, to exit the WTO, or
to remain in the WTO but only with the consent of the Ministerial Conference).
73
Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987, S. TREATY DOC.
NO. 100-10, 1522 U.N.T.S. 3.
74
Id. art. 2(9)(c) & (d) (providing that the decisions adopted by the two-thirds vote of the parties
present at a meeting in which they are adopted “shall be binding on all Parties”).
75
Protocol Additional to the Agreement Between the United States of America and the
International Atomic Energy Agency (IAEA) for the Application of Safeguards in the United
States of America, June 12, 1998, U.S.-IAEA, S.
TREATY DOC. NO. 107-7.
76
Id. art. 16(b); see id. art. 2 for references to the content of the annexes.
77
Bradley, supra note 3, at 2.
78
See Andrew T. Guzman & Jennifer Lansidle, The Myth of International Delegation, 96 CALIF.
L. REV. 1693, 1708 (2008) (noting “the simple fact is that no adjustment has been made in the
history of the Montreal Protocol with anything less than consensus”); Edward T. Swaine, The
Constitutionality of International Delegations, 104 C
OLUM. L. REV. 1492, 1509 (2004) (finding
the power of a supermajority to amend the WTO agreement is “more apparent than real”).
Tacit Amendments 16
2. Legality of Tacit Amendments
The involvement of international organizations through the tacit
amendment process potentially introduces a new layer of constitutional
complexity to evaluating the legality of the amendment regime. This discussion
considers each type of tactic amendment regime in turn. The first two types are
not constitutionally problematic because they are structurally similar to executive
agreements concluded pursuant to a treaty. On the other hand, the third type
presents unique constitutional issues.
a. Consensus Amendments
The first form of tacit amendment process described above involves
international bodies making amendments to treaties, but only after receiving the
consent of all state parties present at the meeting of the international body. When
the amendment process is included in the treaty’s text, this type of procedure is
similar to amending a treaty via executive agreement. It follows the procedure
contemplated in the Restatement: “An international agreement may be amended
by agreement between the parties.”
79
As a matter of domestic law, the President’s
role in concluding the amendment is indistinguishable from the President’s role in
concluding executive agreements, as long as the President attends the meetings
Thus, this form of tacit amendment process introduces no new constitutional
questions.
b. Opt-out Amendments
This second form of tacit amendment process involves amendments taking
effect after the recommendation of an international body (in which unanimous
consent was not necessarily present), but only becoming binding with respect to
State parties that fail to object. These amendment regimes do not alter the rights
of objecting parties.
80
As a matter of domestic law, they are also a functional
equivalent of a treaty that calls for amendment via executive agreement. The
executive concludes or declines to conclude an international agreement to amend
the United States’ international obligations. As with other executive agreements,
the Senate is permitted to give its advance consent to such agreements.
79
RESTATEMENT, supra note 25, § 334.
80
RESTATEMENT, supra note 25, § 334(3).
Tacit Amendments 17
c. Binding Amendments
The final type of tacit amendment is one to which states parties are bound,
even in the absence of their consent. U.S. consent to such an amendment involves
a delegation of authority to an international body. Some scholars have suggested
that this form of delegation raises distinct constitutional concerns.
81
A few
features of tacit amendments reveal, however, that the delegation is never
complete. First, the United States, even though it may be bound without
affirmative consent, usually participates in the decision-making at the
international body that produces the amendment.
82
Second, the United States may
never be bound entirely against its will. Most treaties make provision for
withdrawal, or else such provision may be derived from the nature of the
agreement.
83
Although this veto is undoubtedly a blunt instrument,
84
both of these
features enable the executive to retain some degree of control. Third, the
Senate—as part of the Congress—has domestic legal recourse against some
amendments, inasmuch as it may override the international agreement with a
later-in-time statute.
85
Finally, the actors who execute the international agreement
that delegates the amendment-making authority to an international body remain
accountable for their decisions to do so.
86
Even if the delegation is complete, there is no basis for a claim that
delegation of authority to an international body is unconstitutional per se. The
process of sovereign nations agreeing to bind themselves to some external
authority is the very essence of international law. Amendment-making power is
only one form of authority that the U.S. government delegates to international
bodies and institutions by virtue of joining an international agreement.
87
The
aforementioned mechanism for withdrawal, coupled with the possibility of
81
Bradley, supra note 3, at 8; Swaine, supra note 78, at 1537-40.
82
Swaine, supra note 78, at 1537.
83
RESTATEMENT, supra note 25, § 332 cmt. a (“Modern agreements generally specify either a
term for the agreement, or procedures whereby a party may withdraw . . .”); id. cmt. B (“A right to
terminate an agreement is often expressed but may also be implied.”).
84
See Swaine, supra note 78, at 1540.
85
RESTATEMENT, supra note 25, § 115(1)(a). This mechanism would not alter the United States’
international legal obligation. Id. § 115(1)(b). Yet, as a matter of constitutional law, Congress has
the same escape hatch for international delegations as it has for conventional executive
delegations—at least for the range of international agreements that deal with issues within
Congress’s legislative authority.
86
Swaine, supra note 78, at 1603 (“Congress may, after all, be held responsible for authority it has
distributed . . .”).
87
For a description of other types of delegation, see id. at 1502-1529.
Tacit Amendments 18
abrogation as a matter of domestic law, have long been regarded to be sufficient
safeguards for constitutional prerogatives.
II. T
HE SENATE’S RESPONSE TO UNRATIFIED AMENDMENT PROCESSES
As noted above, treaties that can be modified by executive agreement may
threaten Senate prerogatives, since the treaty’s provisions may change subsequent
to ratification without direct Senate involvement. Treaties with tacit amendment
processes present similar concerns, because they also allow for the treaty to
evolve in the future without Senate ratification at each stage. Tacit amendment
treaties also present an additional concern since the treaty may be amended
without even the President, let alone the Senate, taking any action at all. This
section outlines how the Senate has in the past approached treaties that can be
modified either by executive agreement or by tacit amendment.
The Senate has regularly accepted the use of either process within treaties,
because it “recognizes the need for an expedited amendment process for highly
technical treaties . . .”
88
In fact, the Senate often has accepted their inclusion with
apparently no comment or concern. For example, the Senate’s report for the
Convention on the Marking of Plastic Explosives for the Purpose of Detection
does not mention that the treaty allows for tacit amendment;
89
the Senate’s report
for the International Convention for the Safety of Life at Sea mentions that
amendments can be via tacit amendment but contains no further comment;
90
and
the reports for the Migratory-Bird Convention (which provides for amendment by
diplomatic note) did not mention the issue at all.
91
The Senate has even been
silent on tacit amendment processes that create binding amendments. For
example, the Montreal Protocol allows for tacit amendments to the Protocol that
can become effective over the United States’ objection. Yet, the Senate report
recommending ratification of this protocol did not discuss this aspect of the
treaty.
92
That said, the Senate has also stated that it considers these processes only
on a “case-by-case basis”
93
and expects the executive to consult closely whenever
it seeks consent for a treaty with such a process. As discussed below, the Senate
88
S. EXEC. REP. NO. 96-36, at 2 (1980).
89
See S. EXEC. REP. NO. 103-15 (1993).
90
See S. EXEC. REP. NO. 95-23, at 2 (1978).
91
See S. EXEC. REP. NO. 93-8 (1973).
92
See S. EXEC. REP. NO. 100-14 (1988).
93
S. EXEC. REP. NO. 96-36, at 2 (1980).
Tacit Amendments 19
has sought to condition the use of executive agreement or tacit amendment, either
through demanding that such processes only cover technical amendments or
requiring prior notice. In more rare cases, the Senate has gone further—requiring
the executive to object automatically unless the Senate provides its consent or by
creating a mechanism for Congress to object by resolution. The remainder of this
Part outlines and evaluates these different responses.
A. Technical or Administrative Provisions
The Senate Foreign Relations Committee at times has indicated expressly
that it will only consent to unratified treaty processes when they deal with
technical or administrative provisions.
94
As noted above, treaties will often have
this limitation specifically in the text. For example, the Chemical Weapons
Convention restricts tacit amendments to those that are “administrative or
technical” in nature,
95
and the START treaty also emphasized that the executive
agreements made through the joint commission could not make changes that
modified “substantive obligations.”
96
The treaties, including the Chemical
Weapons Convention and START, almost always maintain a typical ratified
amendment process for substantive amendments, while establishing the unratified
amendment process for changes to technical annexes or other specific issues.
97
Moreover, the Senate regularly has gone further than the treaty text to ensure that
the executive maintains this line. For example, debate over the 1990 Protocol to
the Threshold Test Ban Treaty elicited significant assurances from the
Administration that the unratified changes would be “‘of a technical,
administrative or procedural nature [and therefore would] not affect substantive
rights and obligations.’”
98
In theory, such a line between technical and substantive provisions
provides a reasonable way to distinguish when Senate consent should be required.
From a practical perspective, the Senate likely would not be particularly
concerned with minor matters, and would want the President to have a free hand
94
Id. (“[T]he Committee will approve this procedure . . . only with respect to technical
provisions.”); see also S. E
XEC. REP. NO. 108-12, at 34 (2004) (“The Senate has also at times
specifically limited its acceptance of future tacit amendments to those of a technical or
administrative nature.”)
95
See supra note 50 and accompanying text.
96
See supra note 22 and accompanying text.
97
See e.g., supra note 48 (discussing the Chemical Weapons Convention’s process for formal
amendments); START I, supra note 21, art. XVIII (providing for formal amendments using the
same process for entry into force as the treaty itself).
98
Koplow, supra note 9, at 1018 (citing a letter from Ronald F. Lehman II, Director of the U.S.
Arms Control and Disarmament Agency, to Senator Claiborne Pell, from September 11, 1990).
Tacit Amendments 20
to resolve those matters appropriately. Additionally, the solution facially
alleviates concerns over separation of powers. Commentators note that technical
amendments resemble the administrative discretion the President must exercise in
executing a treaty.
99
That said, it is far from clear that this line between technical and
substantive matters can be consistently maintained in practice. The Senate
grappled with how to sensibly draw this line in its debate over the INF Treaty.
100
The issue also drew significant concern recently among senators during the debate
over the New START treaty, with several expressing worry that the joint
commission could modify the nation’s ability to proceed with missile defense
without Senate consent.
101
Indeed, multiple scholars have argued that any line
between technical amendments and those that bear on substantive obligations is
illusory: “[S]uch amendments may change the parties’ substantive obligations to a
degree that rivals or exceeds any nontechnical developments.”
102
The Open Skies Treaty, the International Convention for the Regulation of
Whaling, and the Montreal Protocol provide three examples of instances in which
the Senate consented to tacit amendment processes that arguably reached beyond
mere technical issues to substantive provisions of the treaties.
103
The Open Skies
99
See Bradley, supra note 3, at 7 (“[U]nratified treaty amendments often are limited to technical
or administrative matters, and the use of annexes and schedules can be seen as a formal way of
distinguishing between fixed treaty commitments and regulatory implementation.”); Koplow,
supra note 9, at 1036 (arguing that “the President must possess at least some degree of inherent
responsibility for inserting a consensus meaning into the interstices” of a treaty.); see also
H
ENKIN, supra note 26, at 219-220.
100
Koplow, supra note 9, at 1011.
101
See S. EXEC. REP. NO. 111-6, at 67-68 (2010) (outlining concerns of Senator McCain regarding
the powers of the Bilateral Consultative Commission under the proposed New Start treaty); Jack
Goldsmith & Jeremy Rabkin, New START Treaty Could Erode Senate’s Foreign Policy Role,
W
ASH. POST, Aug. 4, 2010 (raising concern that the Bilateral Consultative Commission’s ability to
modify the treaty would erode Senate’s role and allow for changes regarding missile defense
without ratification).
102
Swaine, supra note 78, at 1514; see also Koplow, supra note 9, at 1044 (“[T]he crucial
distinction between ‘big’ and ‘small’ changes in a treaty regime, while superficially plausible, is
ephemeral in practice. . . . [T]he fine points are typically crucial.”).
103
In addition, Koplow points out that the 1989 INF Treaty Memorandum of Agreement, agreed
to by the Special Verification Commission, was negotiated over a period of eighteen months by
numerous U.S. officials “who thought that they were developing a great many provisions that
were necessary to sustain the treaty as a practical, viable agreement.” Id. at 1045. Another points
to the Convention on International Civil Aviation, supra note 65, which allowed tacit amendments
to annexes containing “standards and recommended practices.” See Frederic L. Kirgis, Jr.,
Specialized Law-Making Processes, in 1 U
NITED NATIONS LEGAL ORDER 109, 126 (1995). While
Tacit Amendments 21
Treaty allows for unratified modification of some of “the most controversial
issues in the treaty negotiations,” including assignment of national quotas for
overflights, types of sensors to be used, and dissemination of the acquired data.
104
Similarly, the International Convention for the Regulation of Whaling delegates
to the International Whaling Commission the authority to make changes to the
“Schedule,” an “integral part” of the Convention that details “basic issues”
including the species subject to protection, timing, method, and intensity of the
whaling seasons. And the changes to the Montreal Protocol regime “transformed
the parties’ obligation to reduce production and consumption of
chloroflurocarbons (CFCs).”
105
Nevertheless, if the treaties are clear in their text about their delegations of
authority to international bodies (which is required for these treaties to pass
constitutional muster in the United States anyway, as explained above), the Senate
should be presumed well aware that when it ratifies the treaty, it is consenting to
an amendment process that could modify substantive provisions. Moreover, to the
extent that there may be doubt about whether a substantive provision may be
modified, the Senate could also be more explicit about its understanding of what
is not a simple technical matter. For example, the Senate Foreign Relations
Committee recently in its proposed resolution for ratification for the New START
treaty suggested an understanding that the BCC may not make any modifications
limiting missile defense or strategic-range non-nuclear weapon systems without
ratification.
106
B. Prior Notice
For treaties that can be modified by executive agreement or by tacit
amendment, the Senate “has required, or received assurances of, prior notice of
proposed modifications before the executive branch accepted their inclusion in
such treaties.”
107
For example, the proposed resolution for ratification approved
by the SFRC for the New START Treaty requires the President to consult with
the SFRC at least 15 days prior to any meeting of the joint commission
considering a modification to discuss whether such a modification should require
ratification.
108
The Senate also elicited assurances during the debate for the 1990
there is some question as to whether the standards are binding, they are certainly “highly
authoritative,” and thus the amendments are quite meaningful. Id.
104
Koplow, supra note 9, at 1046.
105
Swaine, supra note 78, at 1514.
106
See S. EXEC. REP. NO. 111-6, at 91 (2010).
107
S. EXEC. REP. NO. 108-12, at 34 (2004).
108
S. EXEC. REP. NO. 111-6, at 103.
Tacit Amendments 22
Protocol to the Threshold Test Ban Treaty that it would be advised “‘prior to such
modifications or changes becoming binding.’”
109
In at least one case, the Senate
has applied a notice requirement specific to an area of special concern. In
consenting to the Open Skies Treaty, the Senate’s resolution of ratification
required the President to provide 30-day advance notice only of any proposed
modifications that would affect the use of sensors.
110
The Senate has also required prior notice of modifications in the case of
opt-out tacit amendment processes, where the president may not have proposed
the amendment but nevertheless is required by the Senate to pass along
notification in a timely manner: “The Committee expects the Administration to
inform it of any proposed amendments subject to this procedure prior to the time
for tacit acceptance. This will enable the Committee to voice an objection to tacit
acceptance in appropriate cases, before the issue becomes moot.”
111
Finally, Congress has required prior notice in at least one case where the
United States might be bound over its objection. In approving the Uruguay Round
Agreement establishing the World Trade Organization, Congress
112
required the
U.S. Trade Representative to inform it in advance of any vote that might amend
United States obligations, and also to report on all such amendments that occur in
any given year.
113
Prior notice provisions are a sensible way to provide the Senate the
opportunity to be informed of modifications and defend its prerogatives, while
still retaining the benefits of an expedited amendment process. Scholar David
Koplow has questioned, however, whether the “casual verbal assurances” of prior
notice can truly replace the requirement of Senate advice and consent in these
situations.
114
The Senate often ignores offers for informational briefings, and in
one situation regarding the INF Treaty, concern has been voiced that the president
agreed to amendments without properly notifying the Senate.
115
109
Koplow, supra note 9, at 1018 (citing a letter from Ronald F. Lehman II, Director of the U.S.
Arms Control and Disarmament Agency, to Senator Claiborne Pell, on September 14, 1990).
110
S. EXEC. REP. NO. 103-5, at 17-18 (1993).
111
S. EXEC. REP. NO. 96-36, at 2 (1980).
112
This agreement was ratified through an act of Congress, and not by the advice and consent of
the Senate. See Uruguay Round Agreements Act, Pub. L. No. 103-465, 108 Stat. 4809 (1994).
113
Id. § 122 (codified at 19 U.S.C. §3532 (2006)).
114
Koplow, supra note 9, at 1047.
115
Id.
Tacit Amendments 23
C. Consent Requirement
In at least one case—the 1973 Protocol to the 1949 International
Convention for the Northwest Atlantic Fisheries, the Senate conditioned its
consent on a requirement that the Secretary of State must object to any
amendment, thereby precluding its entry into force, until the Senate provided its
advice and consent on that amendment.
116
Whereas, as discussed above, the SFRC
in the New START Treaty expressed the view that certain types of changes
should require ratification,
117
in this case the Senate went further and required
ratification of any amendment, regardless of what the treaty itself required. While
such a ratification process may help preserve Senate prerogatives, it of course
defeats the purpose of such a provision to streamline the amendment process.
D. Objection by Resolution
Congress asserted even more power over a tacit amendment process with
regard to the Convention on the International Regulations for Preventing
Collisions at Sea.
118
In that case, the Senate ratified the treaty with no conditions
or discussion about the tacit amendment process.
119
However, in subsequent
implementing legislation, Congress required the President to communicate any
proposed amendment to Congress, after which the proposed amendments would
be referred to the relevant substantive committees (e.g., the Senate Committee on
Commerce, Science, and Transportation and the House Committee on
Transportation and Infrastructure). If within sixty days, Congress passed a
concurrent resolution of disapproval of the amendment, the President would be
required to register an objection to the amendment. If Congress did not pass such
a resolution, the President would have the discretion to register his own objection
or tacitly accept the amendment.
From a practical perspective, this process would seem to allow Congress
to weigh in on potential amendments while retaining the benefits of the expedited
process. However, this process arguably falls afoul of the Supreme Court's ruling
in INS v. Chadha.
120
In that case, the Supreme Court found unconstitutional a
116
See Protocol for N.W. Fisheries, supra note 68, Reservation Made Upon Ratification, United
States of America (providing “The ratification is subject to 'the understanding that …it shall be the
duty of the Secretary of State to register an objection to any proposed amendment if” the
amendment has not yet received Senate consent”).
117
See supra note 106 and accompanying text.
118
See supra note 69.
119
See S. EXEC. REP. NO. 94-8 (1975).
120
462 U.S. 919 (1983).
Tacit Amendments 24
provision of the Immigration and Nationality Act “authorizing one House of
Congress, by resolution, to invalidate the decision of the Executive Branch,
pursuant to authority delegated by Congress . . . , to allow a particular deportable
alien to remain in the United States.”
121
The Court held that the bicameral
requirement and the Presentment Clause defined how the legislative power must
be exercised, and that pragmatic considerations could not justify deviations from
this procedure.
122
Objecting resolutions therefore arguably depart from
constitutionally proscribed procedures for Senate or congressional involvement in
the creation of international agreements.
123
III. C
ONCLUSION
While unratified amendment processes may raise concerns about the
Senate’s prerogatives, they pass constitutional muster so long as the Senate
provides explicit advice and consent to the process in the first instance. The
Senate has responded in various ways to these processes, but most typically
requires that they amend only technical provisions and that the executive provide
notice to the Senate when potential modifications may arise. Such distinctions are
reasonable in theory, though their practical value remains in doubt. In some
instances, the Senate has rejected the use of these processes or employed creative
but constitutionally suspect means to maintain its prerogatives. These rare cases
aside, the Senate has generally recognized that unratified amendment processes,
including those providing for tacit amendments, provide a necessary and flexible
tool to develop robust treaty regimes.
121
Id. at 923.
122
Id. at 951.
123
See Hathaway, supra note 26, at 194-205 (discussing in detail the effect of Chadha on foreign
relations law and in particular how Congress responded to the decision in a number of contexts
where it had previously had the power to reject executive action by concurrent resolution).
