U.S. Can Unilaterally Withdraw from TPP and NAFTA Whenever the President Chooses

Senator Barack Obama and Hillary Clinton in 2008 promising to use the threat of presidential unilateral withdrawal to force renegotiation of NAFTA

by Gaius Publius

I mentioned something in passing, on the way to make another point in this piece, that deserves to be a point on its own. Neither NAFTA nor TPP are "set in stone." Each so-called "treaty" (in fact, these are executive or congressional-executive agreements) has a Withdrawal clause that allows for any signing nation to unilaterally exit the agreement at any time.

And if I hear Hillary Clinton and Barack Obama correctly in the clip above, the president has that unilateral authority. Neither talks about "going to Congress to get authorization." Clinton would certainly know, as would Al Gore, who was quoted by the moderator, since NAFTA was signed by Bill Clinton with Gore at his side as vice-president.

From the NAFTA text:

Article 2205: Withdrawal
A Party may withdraw from this Agreement six months after it provides written notice of withdrawal to the other Parties. If a Party withdraws, the Agreement shall remain in force for the remaining Parties.

From the TPP text:

Article 30.6: Withdrawal
1. Any Party may withdraw from this Agreement by providing written notice of withdrawal to the Depositary. A withdrawing Party shall simultaneously notify the other Parties of its withdrawal through the overall contact points designated under Article 27.5 (Contact Points).

2. A withdrawal shall take effect six months after a Party provides written notice to the Depositary under paragraph 1, unless the Parties agree on a different period. If a Party withdraws, this Agreement shall remain in force for the remaining Parties.

This means that even if President Obama gets Congress to pass TPP and then signs it, the next president, whoever she or he is, can unilaterally exit each agreement.

Just because these deals are signed, doesn't mean they can't be unsigned at any moment. Something to keep in mind, both during the lame duck session and during the next administration. After all, both major-party candidates now say they oppose TPP.

Put Them on Record About the Withdrawal Clause

The time to put each candidate on the record with respect to the Withdrawal clause is now, since now, before they have your vote, is when they are most inclined to say yes. If you wait until after the election, good luck.

Or, to put it more generally, Gaius' Rule of Acquisition #47 states: The best time to trade with someone is before they have what they want from you, not after. That's also my Theory of Change (number 47).

GP