Presidential Pronouncements of Customary International Law as an Alternative to the Senate's Advice and Consent

INTRODUCTIONArticle II, Section 2 of the United States Constitution tells the president that "He shall have power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur."1 Article VI then states that "all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land."2 These two constitutional provisions establish the recognized and authoritative method for the federal government to incorporate the content of international agreements to which the United States is a signatory into domestic law. As constitutional practice has evolved, the originally strict understanding of these provisions has grown to include some controversy on the self-execution or non-self-execution of treaties,3 and to allow for the use of executive agreements,4 congressional-executive agreements,5 and even sole executive agreements.6In addition to these well-documented and thoroughly discussed evolutions in constitutional practice, there is a recent development in U.S. practice that has not previously been analyzed but that potentially has a significant impact on the larger question of the treaty process under the Constitution and the concurrent application of customary international law (CIL) as part of the "supreme Law of the Land."7 This emerging practice is a declaration by the president that portions of a treaty are CIL and binding on the United States, even while that treaty is at the Senate for its advice and consent.Three primary examples are sufficient to demonstrate this emerging trend in congressional-executive branch interaction: The 1982 United Nations Convention on the Law of the Sea (UNCLOS Ill),8 the Additional Protocol II to the Geneva Conventions of 1949 (Am),9 and Article 75 of the Additional Protocol I to the Geneva Conventions of 1949 (API).10 In all three cases, the president sent the treaty for advice and consent to the Senate, which took no action. Despite this congressional inaction, or perhaps in response to it, subsequent presidents have made statements or taken actions that, to greater or lesser degrees, proclaim that certain provisions or all of the presented treaties have become part of CIL and are binding on the United States and its agencies. The effect of such presidential action is to bind the United States, as a matter of international law, to apply those treaty provisions. Presidents have then further directed various executive agencies to follow these provisions of newly minted CIL and provided domestic legal ramifications for failure to do so.This particular "lawmaking" exercise by the president is unique and has not garnered much attention from either Congress or academics. Despite recent claims about presidential authority with respect to the foreign affairs power,11 no one has claimed for the president this application of authority under the Constitution.The Restatement (Fourth) has the opportunity to clarify the domestic effect of such a presidential statement. This clarification is especially significant with respect to presidential statements that subsequently become binding on the actions of executive agencies and carry legal repercussions for non-compliance.Part I of this Article will provide a very basic overview of the formation of CIL and its application in U.S. domestic law as the "supreme Law of the Land."12 Though this is a contested area of foreign relations law, Part I will make some assumptions in order to avoid reengaging in this debate and instead try to distill principles that are important to the specific question presented in this Article. With Part I as background, Part II will then analyze the three previously referenced examples where the president has submitted a treaty to the Senate for its advice and consent and subsequently, in the face of Senate inaction, proclaimed provisions of those treaties or those treaties as a whole to be accepted CIL and binding on the United States. …