GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2024

Status

Accepted

Abstract

In The National Security Constitution in the 21st Century (2024), Professor Harold Hongju Koh considers the legality of unilateral presidential withdrawal from international agreements, and advocates for a “mirror principle.” Under that principle, the degree of congressional approval needed to exit from an international agreement mirrors the degree of congressional approval needed to enter into that agreement in the first place. This issue is important, not the least because President Donald Trump withdrew from important agreements, such as the 1987 Intermediate-Range Nuclear Forces (INF) Treaty and the 1945 UNESCO Constitution, and threatened withdrawal from others, such as the 1949 North Atlantic Treaty that created NATO. The merits of this issue were not resolved by the Supreme Court’s 1979 decision in Goldwater v. Carter.

This essay expresses doubt as to the mirror principle being a legal rule. The U.S. Constitution’s text does not require such a principle, and there is no evidence favoring it in the constitutional drafting and ratification history. Moreover, post-ratification practice by the three branches does not embrace such a principle. Indeed, there are circumstances where unilateral presidential action seems permissible even if not mirroring the original authorization. For example, there may be consensus that the president can unilaterally terminate an agreement if he or she determines that the agreement has ceased to be binding on the United States as a matter of international law, such as due to another state’s conduct (e.g., material breach), due to circumstances such as force majeure or impossibility, due to the effects of armed conflict, or due to a superseding later-in-time treaty or rule of customary international law.

As such, a mirroring concept serves better as part of an aspiration for greater inter-branch cooperation in making and unmaking international agreements, rather than as a legally-enforceable rule. Prevailing law and practice is far more differentiated and fact-sensitive on this issue—a conclusion we think is quite consistent with Koh’s overall, compelling objective of avoiding a rigid rule whereby the president can always terminate agreements unilaterally.

GW Paper Series

2024-62

Download

Included in

Law Commons

Share

COinS