See e.B. Andrew T. Guzman, Saving Customary International Law, 27 mich. J. Int`l L. 115, 124-28 (2005) (Discussion of uncertainties related to customary international law). See also Hamdan v. United States, 696 F.3d 1238, 1250 (D.C. Cir.
2012) (Kavanaugh, J.) („It is often difficult to determine what constitutes customary international law, which defines customary international law and to what extent a norm must be firmly established in order to be considered a norm of customary international law.“), repealed for reasons unrelated by Al Bahlul v. United States, 767 F.3d 1 (D.C. Cir. 2014) (bench). In the case of executive agreements, it seems generally accepted that if the president has the independent power to enter into an executive agreement, the president can also terminate the agreement independently without the consent of Congress or the Senate. 186 Thus, observers seem to agree that if the Constitution gives the President the power to make exclusive executive arrangements, the President may unilaterally denounce such agreements.187 The same principle would apply to political commitments: to the extent that the President has the power to make non-binding commitments without the consent of the Senate or Congress, the President may also unilaterally waive these obligations. 188 commentators argued that while the president has the unilateral power to terminate Article II treaties concluded with the approval of the Council and the Senate, the president does not have the unilateral power to terminate „executive agreements of Congress“ concluded with the majority approval of Congress, such as the North American Free Trade Agreement (NAFTA). This article disputes that assertion. If one accepts a presidential power to terminate the Article II treaties, that article argues, there is no convincing reason to conclude otherwise with respect to the executive agreements of Congress. Agreements between Congress and the executive branch have become largely interchangeable with article II treaties by virtue of domestic law and practice.
For example, any instrument can be used to deal with issues related to international trade. Although presidents cannot unilaterally terminate statutes, agreements between Congress and the executive branch are not mere statutes. They are, like Article II treaties, binding international instruments that can only be concluded by the United States through the action of the President. These agreements also typically include withdrawal clauses similar to those in Article II treaties that presidents have long invoked unilaterally, and Congress has never emphasized that presidents have less power to withdraw for such agreements. In fact, Congress seems to have accepted in its trade legislation that presidents can unilaterally invoke such clauses. Paquete Habana, 175 U.S. 677, 700 (1900). See also e.B. Galo-Garcia v.
Immigration and Naturalization Service, 86 F.3d 916 (9th Cir. 1996) („[T]he executive or legislative act of control … customary international law is not applicable. „) (Quote omitted). The United States first terminated a treaty under the Constitution in 1798. On the eve of possible hostilities with the France, Congress passed and President Adams signed a law stipulating that four U.S. presidents have also affirmed the power to unilaterally withdraw from agreements between Congress and the executive branch, but there is an emerging scientific debate about the extent to which the Constitution allows the president to act in such circumstances without the consent of the legislature. . . .