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44 Harv. Int'l L.J. 1 (2003)
The Dangers of Deference: International Claim Settlement by the President

handle is hein.journals/hilj44 and id is 7 raw text is: VOLUME 44, NUMBER 1, WINTER 2003

The Dangers of Deference:
International Claim Settlement by the President
Ingrid Brunk Wuerth*
During the final months of the Clinton administration, the State Depart-
ment entered into a trio of unprecedented international agreements with
France (the French Agreement),' Germany (the German Agreement),2
and Austria (the Austrian Agreement).3 These sole executive agree-
ments, designed to resolve litigation pending in the U.S. courts that arose
out of World War II and the Holocaust, were made without Senate ratifica-
tion (as required for a treaty)4 or congressional authorization (as in a congres-
sional-executive agreement).5 Although executive branch settlement of
claims without Senate or congressional approval has a long history,6 these
executive agreements mark an important departure from prior practice by
resolving pending U.S. litigation against private companies rather than
claims against foreign sovereigns.7 As one senior State Department official
noted, the German Agreement was a move into uncharted areas.
* Assistant Professor of Law, University of Cincinnati College of Law. J.D., University of Chicago;
B.A., University of North Carolina at Chapel Hill. For comments on earlier drafts, many thanks to Curtis
Bradley, William R. Casto, Jack Chin, Donna Nagy, Ronald Krotoszynski, Jr., Wendy Parker, Peter
Spiro, Suja Thomas, and Michael Van Alstine. Errors and omissions are mine alone. For excellent research
assistance I am indebted to Lisel Holdenried, Elizabeth Lenhart, LaToya Rembert, and Philip E. Wells.
1. AGREEMENT CONCERNING PAYMENTS FOR CERTAIN LOSSES SUFFERED DURING WORLD WAR II,
U.S.-Fr., Jan. 18, 2001, Temp. State Dep't No. 01-36, 2001 WL 416465 [hereinafter FRENCH AGREE-
MENT].
2. AGREEMENT CONCERNING THE FOUNDATION REMEMBRANCE, RESPONSIBILITY AND THE Fu-
TURE, U.S.-ER.G., July 17, 2000, Temp. State Dep't No. 00-129, 2000 WL 1863131 [hereinafter
GERMAN AGREEMENT).
3. AGREEMENT CONCERNING THE AUSTRIAN FUND RECONCILIATION, PEACE AND COOPERATION,
U.S.-Aus., Oct. 24, 2000, Temp. State Dep't No. 01-13, 2000 WL 33125445 [hereinafter AUSTRIAN
AGREEMENT]; AGREEMENT RELATING TO THE AGREEMENT OF OCTOBER 24, 2000 CONCERNING THE
AUSTRIAN FUND RECONCILIATION, PEACE AND COOPERATION (RECONCILIATION FUND), U.S.-Aus.,
Jan. 23, 2001, Temp. State Dep't No. 01-73, 2001 WL 935261.
4. U.S. CONST. art. II, § 2, cl. 2.
5. Sole executive agreements are concluded without congressional authorization. Congressional-
executive agreements receive approval by Congress, either ex ante or ex post, but are not ratified by two-
thirds of the Senators present, as is required for treaties.
6. See discussion infra Part III.B.
7. Ronald Bettauer, Deputy Legal Advisor of the U.S. Department of State, termed the German
Agreement unprecedented. Ronald Bettauer, Keynote Address: The Role of the United States Government in
Recent Holocaust Claims Resolution, 20 BERKELEY J. INT'L L. 1, 4 (2002).
8. Id. at 2. Bettauer describes the German Agreement as an unconventional and unprecedented ar-
rangement that involved an executive agreement between the United States and Germany, but not a

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