THE NORTH AMERICAN FREE TRADE AGREEMENT AND THE SO-CALLED "PARALLEL LETTERS"^*
Rodolfo CRUZ MIRAMONTES**

SUMMARY
I. Precedents. II. The negotiation of NAFTA. III. The negotiation of sugar within NAFTA and the "Parallel Letters". IV. The Vienna Convention on the Law of Treaties of 1969. V. Analytic Study and opinion on the "Parallel Letters". VI. Conclusions.

A dispute has arisen recently between the governments of two of the Parties to NAFTA —Mexico and the United States— to define on the application of the part of the NAFTA text that refers to sugar and sweeteners or the content of two documents similar to each other which attempt to modify a substantial part thereof.

To this end, talks have been going on for some time aimed at avoiding a dispute but these have not been fruitful, thus making it necessary to officially resort to the mechanism provided for in Chapter XX of the Trilateral Agreement in force since 1994.

In accordance with its title, section “B” of the above agreement refers to the “Settlement of Disputes” which begins with a formal commitment by the Parties involved to attempt to find a satisfactory solution through consultations and “cooperation” (article 2003).

Pursuant to the aforementioned mechanism, when the Parties decide to resort to it, they must agree upon the forum for discussing the matter given that as Members of the WTO, they may also raise the matter in Geneva, in accordance with the Understanding on Dispute Settlement.

Consultations on the case shall be made in writing, with a copy to the Secretariat, and shall do “everything possible to achieve a mutually satisfactory solution” (article 2006, p. 5).

If there is no success achieved, either of the interested parties may request that the Commission be convened, after the applicable timeline has expired.

In its petition document, the Party must remand the subject matter of the complaint and its legal foundations, submitting a copy to the Secretariat and to the Parties.

In the case mentioned, the corresponding timeline expired and it was requested that the Commission be convened, pursuant to paragraphs 1a) and 3 of article 2007.

The Commission having been convened and when a period of ten days had expired without any resolution of differences being reached in the terms provided for in article 2008, paragraph 1, a), it was then requested that a panel be set up, in accordance with paragraph 2 of article 2008.

On August 17 2000, the arbitration proceedings were begun, hence, a tribunal will shortly be appointed which shall function in compliance with the provisions of Chapter XX, Section B and of the Model Regulations of Procedure established in article 2012.¹

The Tribunal will be comprised of five panelists who will be selected from a list of thirty, whom the Parties shall constitute in compliance with the obligation contained in article 2002.

Thus and within 15 days following the petition for the panel to be set up, “The Parties in dispute shall endeavor to agree upon the appointment of the Chairperson…” (article 2011, 1, b), which must be done, at the latest, by September 7, in accordance with Rule 32 which lists the days in the three countries which are considered as non-working days, hence the remainder being considered as working days.

The establishment of the panel, just as any other of the panels contemplated in NAFTA, is not an easy task because as there is no permanent tribunal such as we suggested during the Agreement’s negotiations,² it is necessary each time to resort to the availability of the people listed and their acceptance, in addition to which, it is contingent upon the non-existence of conditions conducive to incompatibility in the matter to be reviewed.

Consequently, we cannot discern an accurate timeline until it has been constituted. Even after this has been done, the terms for dictating the preliminary and definitive reports will depend on whether or not events arise during the process proceedings that might delay its execution.

So far, it has not been publicly announced whether progress has been made in constituting the panel, therefore, we deduce that it is in the process of being set up.

It is likewise not known what will be the issue or the points of the Mexican government’s complaint that led to the decision to initiate this process.

Notwithstanding, on several occasions, the SE (Secretaría de Economía) —working through its highest officials— has stated that given the lack of legitimate expectations of obtaining a higher volume of sugar within the market-quota system of the United States which has resulted in being detrimental to its rights, this has given rise to fears of non-compliance with the obligations contained in Annex 703.2 of NAFTA, whose paragraphs 15 and 16 govern access of the product.

Consequently, since March 12, 1998, reference consultations have been proposed but have produced no results since the opposing Party argues that said commitments were modified by the so-called “Parallel Letters”.³

Using the aforementioned comments and data as precedents, we will now proceed to calculate various juridical aspects of the case under the hypothesis that said letters were accorded and signed and in this way, assess their legal effect within NAFTA.

In order to properly understand the problem, I consider it expedient to mention certain data surrounding the sugar issue and which are behind the “why and wherefore” of the so-called “parallel letters”.

The North American Free Trade Agreement (NAFTA) is a juridical-economic instrument of great scope and ambition since it surpasses by far the traditional parameters of a free-trade zone by virtue of covering not only the entirety of trade tariffs but also by establishing criteria and controls of non-tariff barriers and embracing multiple disciplines as regards services, investment and intellectual property. It also creates a whole arsenal of mechanisms, systems, and criteria which seek to prevent and resolve logical disputes which are bound to arise in any international agreement.⁴

The existence of differences of opinion and frictions as to the enforcement of the Agreement is natural and inherent in it so in my opinion, it is admirable that these were avoided and that remedies were forthcoming since this is the only way that one can expect its success.

As we have said, the magnitude and ambition of the Agreement is complete and universal —not comprehensive— as it has clumsily been judged, since comprehension is a quality of mankind. The term “comprehensive” in English is mistakenly used to signify that everything is included.

We will just say that this serious defect is one of the many which constitute a violation of our language. We who have participated in the negotiations from the very outset and from the trenches of the private sector have not managed to correct all the defects found, although some of these were corrected.

The Agreement was originally proposed and promoted between the United Mexican States and the United States of America. Later, on February 5 1991,⁵ Canada decided to join since it had already established a free trade zone with its neighbor since 1989 under the Free Trade Agreement (FTA), so this was a logical occurrence.

There followed intense and arduous negotiations which began on June 12, 1991 in Toronto, Canada, and concluded on August 12, 1992, in Washington, D. C.

There were numerous issues dealt with but these centered around six great concepts which were subdivided into several variable themes and in a certain way, were adjusted to suit the prevailing circumstances so at times there were 23 but ended up being 19.

When reports were issued on the advances of the work tables, we of the private sector —whose participation in preparing the tasks was considerable (174 monographs were prepared), as well as during the talks held through the “meeting room”— added one more theme: that of unfair trade practices (antidumping and subsidies), given that the counterparts refused to deal with it.

Thanks to our tenacity and consistency, in April 1992, we succeeded in having it incorporated into the theme of “Rules of Trade” and thus achieved Chapter XIX, similar to Chapter 19 of the FTA. This was so essential that without it, NAFTA was questionable, as I publicly stated.⁶

At the end of the negotiations, by December 17, 1992, the text was signed and thus began the process of ratification by the respective legislative powers.

Needless to say, the US legislative process was wearisome given that attacks against Mexico in the media and in the debates were merciless and there was no shortage of unfettered insults thrown at it.

It arose in the depth of presidential elections and the fact that there was a change of president and political party created a stormy atmosphere throughout US Congress.

The procedure followed was an exceptional one as it came under the so-called “fast” track” process established in the Trade Act of 1974, and evolved into the Trade Negotiating Authority Provisions of the Omnibus Trade and Competitiveness Act of 1988 (P. L. 100-418 Sec. 1102).

This means that Agreements on trade issues which deal with tariffs can, by virtue of their importance and opportuneness, be removed from the actual handling of ordinary Agreements, pursuant to article II, section 2, paragraph 2, of the Constitution without going through the Senate and without suffering modifications. In contrast however, they must be made known to Congress through its two Houses, and must be either passed or rejected in their entirety (votes are only expressed by either a “yeah” or “neah”).

Determined set or fixed timelines are provided for their processing.

NAFTA was under other severe pressure, worsened by the fact that it was not widely welcomed and it had some powerful opponents.

In addition, it also transpired that unlike the case of Mexico, the US and Canadian private sectors were not closely involved in the negotiation process and had neither the capacity nor the imagination to create a COECE (Corporate Coordinating Body for Foreign Trade).

As a result, to the degree that the text of the agreement seeped through, opposing negotiations emerged, or at least, pretensions of reform.

Consequently, the vote of Congresspersons was played upon, pressured by their representatives.

This led to a very complex process and multiple actions to where the Executive was forced to agree to very diverse commitments ranging from political privileges and economic support to the signing of certain side agreements to the principal Agreement.

This is where the issue of the “parallel letters” comes into the picture.

In order to understand their condition, it will be necessary to bear in mind the North American administrative system, which is highly complex in the difference between its philosophy of weight and counter-weights and the pragmatic spirit of all its actions.

Given that the authority for their negotiation lies with the Executive and that the Senate is responsible for passing them, international agreements have suffered “multiple fractures” which allow for the existence of simplified agreements that can only be executed by the Executive, without the presence of the other regulatory power.

Over time, changes have come about and while they thus originally dealt with issues of peaceful relations, claims, compensations, and the recognition of governments and others, they later expanded their field of action and have come to include the actual issue of trade, which is very sensitive.

The struggle between the two powers has been very strong ever since the country became a sovereign state. The Executive constantly seeks to control political power while the legislature tries to limit his control.

Consequently, NAFTA was not an exception to the rule and even less so, given its importance.

The negotiation of trade aspects that affect tariffs is a power exclusively reserved for Congress (article 1, section 8, paragraph 3, of the Constitution) and to amend or modify them requires the express approval of Congress. As it is not easy to predict which ones and how many will be affected, the “fast track” was invented so as to thus control the President’s handling of international commercial administration, without affecting the trade aspect.

As the maximum timeline for submitting the text of the Agreement and the legislative projects for its implementation approached, an enormous document package was put together, as well as other agreements that had arisen from the multiple wheeler dealing so as to carry the necessary votes and achieve its approval.⁷

At the right moment, the House of Representatives voted 234 in favor and 200 against on November 17, 1993, and with the Senate vote of 61 in favor and 38 against on November 20, 1993, the Agreement was definitively passed.

Worthy of note is the way in which President Clinton, who assumed office in January that year, worked to support the work of his opposition Republican-Party predecessor and even more remarkable was the manner in which he presented the issue before Congress.

He did so on November 4 but he divided his presentation into two separate parts that day.

The first package he delivered was the text of the Agreement, known as the “Statement of Administrative Action” and certain backup information (H. R. 3450). The package was dated November 3.

The second package the White House sent to Congress on November 4 comprised of an explanatory letter from President W. Clinton signed on that date, and accompanied by the following documents, in the order they were annexed:

1) The Supplemental or Side Agreements regarding the environment, labor issues, and the excessive and uncommon importation of goods.

2) Agreements relating to citrus fruits, sugar, and sweeteners entered into with Mexico.

3) Agreement on the support fund for border development entered into with Mexico.

4) Letters pertaining to the accelerated tax relief provided for in the text of the Agreement.

5) Report on the situation of the Environment and Side Agreements.

6) List of documents and reports sent to Congress during the NAFTA negotiations.

While the reason driving the US President to use extensive political maneuvering and personal privileges to get a favorable vote is clear from the viewpoint of US internal politics, it is not so clear to the other two signatories.⁸

As we will see further on, some magnificent achievements by the Mexican negotiators were washed away, as well, perhaps, as some by the Canadians on the issue of wheat, for example, it is nonetheless also true some agreements complemented the principal one and that others, such as safeguards, were good. Others still had little effect at the time, such as the letter proposing that as of the entry into effect of NAFTA, the negotiators should take their places around the table to discuss accelerated tax relief, pursuant to article 302, paragraph 3, of the Agreement.

Without referring in detail to the negotiations, I will basically deal with the results obtained and with certain elements pertaining to those results.

At the time, the fact was that as a sugarcane producer since the latter part of the 16th century, Mexico barely satisfied its internal demand in the early 90s and had even had to import the product, which caused some serious problems for the industry.

As a result, when negotiations began on June 12, 1991, the position of the industry was conservative and not aggressive.

In turn, the United States had and continues to have a shortfall and so established a system of tariff quotas since 1991 stemming from a case resolved in its favor which was brought by Australia before the GATT. This means that it meets its deficit by amusingly granting certain countries an access quota with a minimum tariff of almost “0”, therefore, the price governed by the demand is always attractive.

In contrast, the international market generally offers very low prices since the supply exceeds the demand.

Other regional markets offer little attraction as the systems controlling them protect the producers, as happens in the European Union.

After the Uruguay Round, the United States agreed with the WTO to import a minimum of 1,250,000 metric tons annually, which would be allocated to its customary suppliers based on varied criteria: historic tradition as a supplier; diplomatic relations; or even other conditions.

Consequently and given that at the time of the negotiations Mexico was not a supplier, it was put into a minimum entry category (7,258 m. t.) but an applicable system was designed which in the issue, only applies between the United States and Mexico.

Annex 703.2 to the Agreement deals with that and establishes that there will be tax relief graduated in two phases: a slow one during the first six years then an accelerated one until reaching “0” when the Agreement has been 15 years in force.

In addition, there were precise parameters agreed upon and a hypothesis to be realized.

As a result, it began with a minimum stated quota which could reach an annual maximum of 25,000 tons of raw sugar.

Upon reaching the seventh year of trade, this amount would increase to 150,000 metric tons of raw sugar [paragraph 15, subparagraphs a) and b)] and will be increased by a 110% annual rise until the year 2007 since as of the following year, the rate “0”, counted as of the entry into effect of the Agreement.

Nevertheless, this situation could change dramatically if, as an Exporting Party, Mexico were to manage to have a surplus for two consecutive years…” as of the date of entry into force of this Agreement”; just as stated in subparagraph a), of Paragraph 16 of the Annex in question.

The aforementioned calculation must be done based on the prevailing situation of the previous trade year and the current year, with some alternative which does not change the concept [subparagraphs b) and c) of the same Annex].

As it turns out, said situation took into account that Mexico would undoubtedly take time to have a surplus given that its production did not reach the four million tons, and that the demand was similar.

When the aforementioned text was made known, U.S. producers possibly learned and considered that while the formula was a comfortable one, it might however happen that this would soon operate and it could come to a surplus, not only based on their sugarcane harvests but also because by not being subject to controls for access to the Mexican market, high-fructose corn syrup would replace the sugar of the traditional users by virtue of being a similar product. In the United States, the phenomenon occurred in several areas of industry, which caused serious setbacks for the domestic sugar producers.

This occurrence could have been easily foreseen, not only because of the aforementioned historic precedents but also because the US fructose producers announced it and, the expansion of their plants was proof since the lack of internal demand did not merit said expansion.

There were likewise those who, based on the cases of non-sugar-producing countries, justifiably thought that Mexico might purchase the product from Cuba at a low price and then supply it to the US market.⁹

Consequently, in June 1993, the United States Trade Representative (USTR), Mickey Kantor, expressed his concern to his Mexican counterpart and after looking at various proposals, they arrived at a formula that was mutually satisfactory.

The text of the above formula was expressed in the famous letters which President Clinton referred to in the document package he sent to Congress on November 4, as we mentioned earlier.

In a document relating to NAFTA published by Congress and particularly by the House of Representatives under the number 103-160 and entitled “Message from the President of the United States, transmitting North American Free Trade Agreement, Supplemental Agreements and Additional Documents” dated November 4 (U.S. Government Printing Office, Washington, 1993), there is a printed copy included of two letters sent; one by Mr. M. Kantor to Dr. Jaime Serra Puche, Mexican Minister of Trade and Industrial Development, and the other sent by the latter to his U.S. counterpart, Mr. Kantor.

This letter confirms the Agreement or rather simply states the mutual willingness achieved by both sides as regards the implementation of Annex 703.2 to NAFTA.

The letter particularly mentions the aspect of the exchange of sugar and syrup goods and the commitment assumed when either of the countries had or calculated having a surplus, which will be considered when there is “a surplus in net production”.

This shall come into effect when said surplus sugar production exceeds total consumption during a trade year.

Notwithstanding, it was established that since fructose “might easily replace sugar”, “undesirable” situations could arise.

Therefore, the manner of calculating whether or not there is a surplus will change and will consider not only sugar but also corn fructose, which likewise raises a question given the wording of the paragraph in each of the exchanged letters.

In the letter from Kantor, the last part of paragraph four literally says: “…The determination of ‘net production surplus’ for purposes of section A of Annex 703.2 shall include consumption of high fructose corn syrup…”.

In the same part of his letter, which is practically the same, Serra Puche leaves out the word “consumption”, which is more consistent with the concept to be defined, in other words: “net production surplus”.

On the other hand, subparagraphs b) and c) of paragraph 15 are modified and determine the limit for the seventh and fourteenth years as 250,000 metric tons raw value, and, “…paragraph 16 of section A of Annex 703.2 will not apply”.

The products in question come under HTS headings 1702.40, 1702.50, and 1702.60.

Said letters with the stated provisos attempt to validly modify the actual text of NAFTA in the corresponding part, as well as the interpretation to be made since they constitute a kind of second agreement or, put another way, a kind of mini-Agreement.

As we have said, the letters were included in a second document package sent to Congress to support the NAFTA where they were mixed up with what the White House classified as “Supplemental Agreements”, together with other additional documents.

Strictly speaking, the first package consisted of the agreements on labor issues, environmental protection, and excessive imports while the second package dealt with the other related communications, which included the parallel letters on sugar and sweeteners.

President Clinton expressly stated that those additional documents did not require official approval by Congress, in accordance with “fast track” procedure but given the fact that they offer considerable benefits to the people of the United States, NAFTA had to pass in order for them to become effective.

This distinction is not accidental nor does it comply with a Presidential directive, rather, there is a deeper legal and political reason underlying it.

To understand this issue, we will need to refer to the distinction which the United States system makes of the two different kinds of international agreements and promises which the U.S. President and his Office may enter into.

1. The different international agreements which the United States government may enter into

From the beginning, we stressed that the authority to negotiate international agreements lies with the President, but, with the counseling and consent of the Senate. However, from its early days as an independent nation, agreements have been entered into directly, without the concurrence of the other Power. This is attributed to a whim of President George Washington.

Through the exercise of this activity and according to the opinion of some authors consulted, the following can be seen:

1) The traditional agreements negotiated by the Executive and passed by the Senate which are contemplated in article II, section 2, paragraph 2, of the Constitution and entitled “Senatorial Agreements”.

2) The Congressional Executive Agreements, which can be of two types:

A) Those which obtain prior authorization from the Legislative Power to be negotiated.

B) Those which, once negotiated, are sent to Congress for approval, with retroactive effect.

3) Agreements executed exclusively by the President and known as “presidential-executive” or “sole-executive” agreements.

4) Those which some European authors call “gentlemen’s agreements” which were singularly important towards the end of World War II.¹⁰

5) Lastly, certain studies¹¹ distinguish another category in those agreements which emerge from the fulfillment of an Agreement.

Perhaps they refer to the agreements that, once passed by the Senate, demand entering into later agreements so as to specify certain details in their implementation, therefore, they refer to derivative or supplemental agreements which of themselves, do not constitute independent agreements (“treaty executive agreements”).

Whatever the case may be, the execution of those executive agreements, according to their supporters, stem from an authority “inherent” in the Executive power, particularly from the constitutional authority of the President, as pointed out by Professor John H. Jackson —one of the foremost experts in the United States on the legal aspects of international trade—.¹²

In light of the increased number of these simplified agreements, the struggle has been growing between those who defend the clause of the Agreement that confers power upon the Senate to advise on and pass the execution of agreements by a two-thirds majority (Treaty Clause) and those who support the negotiation of international agreements by the President, without Senate intervention, or, eventually by a limited Congress intervention.

In practice, we have highly important cases worldwide in which, without allowing Senate participation, agreements have been signed by the Executive power, and even “in secret”, as is the case of the Yalta agreements in February 11th, 1945 whereby the Kuril Islands and the southern part of Sakhalin passed in the hands of the USSR, overstepping the military powers of the President.¹³

According to data gathered: 105 agreements and 123 executive agreements were entered into between 1933 and 1940; 132 agreements and 7,324 executive agreements were executed between 1945 and 1952 (an almost ten-fold increase in eight years); and during the following presidential term, which was only four years, 63 agreements as against 846 executive agreements were entered into. This trend has been the same in the years that followed.

Apparently, this clash between the two powers —Senate and President— and the mechanism of collegial participation of the legislature and the President is not solely limited to exclusively internal interests, rather it seriously affects those countries with which international negotiations are conducted, specifically those relating to trade and including those of a multilateral nature, as is the case of the World Trade Organization.

The cause for concern lies in the fact that the internal mandatory power of said agreements is different given that in the case of Senatorial agreements, there is no doubt that such concern is absolute; it becomes the mandatory standard in keeping with the thesis that “international law is the law of the land” (article VI of the Constitution).

Nevertheless, those agreements which are not passed by a two-thirds majority of the Senate have multiple aspects of difficulty and their internal repercussions may differ, but particularly so for the country with which the Agreement was entered into.¹⁴

If we start from the premise that the President and the branches of the Executive can negotiate any issue at any time, the crucial point is to precisely establish whether what is done will be mandatory and binding. Another issue that needs to be considered is the subject matter involved, particularly if it pertains to international trade and to tariffs.

Consequently, from the moment the possibility was announced of negotiating a free trade agreement with said country, we stated our concerns in that regard, especially because of the fact that for Mexico, the agreement would be supreme law that would be enforced directly upon being promulgated, and only one step below the Constitution.¹⁵

According to the aforementioned classification, the North American Free Trade Agreement (NAFTA) falls within executive-congressional agreements and because of coming under the “fast track” system, obtained authorization prior to its negotiation, thus, being limited to a timeline and to later approval, as is stipulated in the law identified as P. L. 100-418, Sec. 102, and the timeline recorded was from May 1, 1991, through May 31, 1993, meaning that the Presidential authority to negotiate it expired on the latter date.

In addition and just as occurred, together with the text of the Agreement and within the corresponding timeline, a special act had to be presented which would officially certify its approval and implementation (pursuant to section 1103 of the Omnibus Trade and Competitiveness Act of 1988, and pursuant to section 1102 of the same Act, which grants the President the legal powers to execute it).

Either way, NAFTA was validly negotiated and those who acted in representation of the United States government knew what kind of commitment they were assuming and, without doubt, they took into account the “nine orders” contained in the general lines which must be observed in accordance with instructions from the Department of State —the equivalent of our Ministry of Foreign Affairs— contained in a manual issued under Memorandum 175 and which, regardless of what kind of agreement is to be negotiated, make it mandatory to draw up the following directives:

Section 711.3:

— Considerations for selecting the permissible constitutional procedures, with the obligation to take into account the pertinent factors, together with other constitutional elements.

— The scope of the commitments and risk factors which the country and nation as a whole will assume.

— To what degree state laws will be affected, if such be the case.

— Whether the future agreement can be put into effect without the need for Congress to pass any act.

— Whether a precedent or practice exists for these agreements.

— Whether Congress has shown any inclination on the kind of agreement, in similar cases.

— The level or degree of formality desired in the execution of the Agreement.

— As regards its duration, what should this desirably be, what is the necessity for it to be concluded as soon as possible, and whether the preference is for it to have an ordinary duration or a short-term one.

— To determine what kind of agreement must be selected, it will be highly important to take into account that affecting the constitutional powers of the Senate, the Congress as such, or the President will be avoided.

— Lastly, it is recommended that the competent committees of Congress be consulted.

The above were the prevailing directives, at least up until 1985. As we can deduce, the Department of State is more concerned with evaluating the internal effects and possible repercussions to the state powers than with the depth and scope of the international commitment.

2. The international commitments and their assumption in accordance with Mexican Law

In the following part, we will review the legal framework that corresponds to this issue, in accordance with Mexican Law.

Traditionally, considerations were based on the current Political Constitution as to the existence of international agreements properly negotiated by the person having the exclusive authority to do so, pursuant to article 89, section X, namely, the President of the Republic.

These international commitments are determined so as to have full legal validity and that certain conditions are adhered to, as follows:

1st. They must not involve the extradition of political prisoners nor of persons who had the status of slaves in the country requesting their extradition, nor can they involve any commitment which would affect individual guarantees (article 15).

2nd. It is likewise prohibited that the states of the Republic “enter into any alliance, agreement, or coalition with another Government, or with foreign powers” (article 117, section I).

Naturally, this second condition does not impede the fight against impunity for crimes committed outside national territory given that the states of the Republic must cooperate with and respond to extradition requests, but this must at all times be done through the federal authorities.¹⁶

There is no doubt as to the concern embodied in article 15 for respecting the dignity of persons and as such, its extensive humanitarian content is worthy of recognition.

There is a third condition which merits special comment and this is contained in article 133.

It is that said agreements are to be executed by the President of the Republic and passed by the Senate; those empowered to do so pursuant to article 76, paragraph I.

A problem has arisen stemming from the use of terms other than “agreement”, such as “diplomatic conventions” (article 76-I), “Alliance”, and “Coalitions” (article 117-I).

As Professor Jorge Adame Goddard states: “The question would be important if it came to define two types of international instruments: ‘accords and agreements’, which article 133 of the Constitution states would not be ‘supreme law’; and ‘treaties’ in the strict sense, which would have this status”.¹⁷

Our author concludes by concurring with the viewpoint of Ambassador Jorge Palacios Treviño¹⁸ which is that “...all international instruments referred to by the Mexican Constitution, whether they are called treaties, accords, or agreements, must be passed by the Senate and have the same status or hierarchy of ‘Supreme Law of the Union’, as provided for in article 133”.

Since the aforementioned conclusion is clear and precise and we fully concur with it, it makes us ask the question of what the situation is regarding other conventions that can come to light from the provisions of the Treaties negotiations Act (Ley para la Celebración de Tratados) which was promulgated and published in the Official Federation Gazette on January 2, 1992.

This recent legal instrument, apparently influenced by United States practice, incorporates, together with the agreements, a new gender of instruments called “inter-institutional agreements”.

The aforesaid agreements shall be those executed in writing between any decentralized department or agency of Federal, State, or Municipal Public Administration and similar foreign counterparts and international organizations, and, are governed by international public law (article 2, II).

As to the subject matter of said legal instruments, this is contemplated in the last paragraph of the aforementioned article: “the ambit of the subject matter of these inter-institutional agreements must be confined to the actual powers of the described decentralized departments or agencies who sign them”.

It transpires that both the President of the Republic, by Constitutional decree, and the aforementioned entities described may enter into commitments of international scope. For us, this poses an endless number of problems and questions.

A first such question is of a deeply constitutional nature.

If neither article 89, section X, nor article 76, section I have been amended, where does the power come from to negotiate them?; what is the source of this new “treaty making power”; how can we explain the existence now of these new legal instruments?; where do we place them?

While it is true that both municipal authorities as well as decentralized departments or agencies of Federal Public Administration have the legal capacity to contract the services of individuals, acquire goods from suppliers and act as a body corporate – something they have always had, do these actions acquire international status because they are now called “inter-institutional” and are governed by international public law?; What would these be?

Let us remember that legal regulations already exist whose field is precisely that mentioned and that are contained in national legal instruments that differentiate between national public actions of private content and those that are purely public, namely, those carried out in the exercise of the powers of authority, and with a foreign country or body corporate as the counterpart.

In broad terms, these actions of a commercial nature, in a case involving litigation, exclude or do not allow the party being sued to invoke its status of public body and hide behind a blanket of immunity. However, in practice, it is not easy to make a distinction as to when an action is private or public, or even when it contains elements of both natures.

Some governments have promulgated these regulations, which naturally include the United States, and the source of many severe headaches for us has been the enforcement against us of its Foreign Sovereign Immunities Act of 1976 (Pub. 94583-90 Stat. 2892-T.28 of the USC, Secs. 1330, 1332 (a) and (f), and 1602 to 1611.¹⁹

Or rather in other administrative activities of cooperation, assistance and support, education and in yet others which the Executive Power has been executing for years and that generate inter-party rights and obligations.

As a noteworthy example that has attracted attention on international forums associated with the administration of international watersheds and rivers we would mention the International Commission on Limits and Waters in which problems arise as a result of the unpredictable flow of the waters of the Tijuana, Colorado, and Rio Bravo or Rio Grande rivers which form part of the border between Mexico and the United States. These problems are resolved by Commissioners of both Parties, with the solution being captured or expressed in an official document which, if not rejected by the governments within a period of thirty days, constitutes an International Agreement.²⁰

We ask ourselves whether those who wrote the law might not have been thinking along the lines of the “inter-departmental agreement” which professor I. G. Starke describes in his manual, but without having delved into them so as to codify them properly.²¹

The existence of commitments of this type are a fact that has been present in our diplomatic history, on several occasions, our jurists have dealt with the issue.

Amongst others, we recollect the conferences at the Matías Romero Institute of the Ministry of Foreign Affairs in February 1977, given by its director at that time, Mr. César Sepulveda, to mark the commemoration of the Sixtieth Anniversary of our Constitution. The foregoing were entitled La Constitutión y las Relaciones Exteriores de México (“The Constitution and Mexico’s Foreign Affairs”), and included the participation of such eminent jurists as Mr. Antonio Martínez Baez, his namesake, Mr. Antonio Carrillo Flores, Mr. Felipe Tena Ramírez, Ambassador Manuel Bartlett, Dr. Jorge Sayeg Helú, Dr. Jorge Carpizo, and Mr. Benjamin Trillo.

One of the most controversial issues was undoubtedly the presence of these “executive agreements” and their absence from the Constitution, which some of the speakers described as proof of the arrogance of the Executive or, as carelessness but that they nonetheless constitute a source of rights and obligations.²²

Comments and thoughts have recently been devoted to them by the acknowledged professors in international law, Ms. Loretta Ortiz Alfh and Carlos Bernal; the former in her work entitled Derecho Internacional Público (International Public Law)²³ and Ambassador Bernal in his study “Los Convenios Ejecutivos ante el Derecho Constitucional e Internacional” (“The Executive Agreements in the light of Constitutional and International Law”).²⁴

It is also our experience that in the United States, the struggle exists between the two powers, although there are notable differences given that our legal regulations are less strict as regards voting since we only half of the Senators, plus one, for passing Agreements.²⁵

This fact has given rise to some commentators asking whether, in the practice used in the United States, the existence of the executive agreements can be explained away as a manner in which to avoid facing the Senate but still get 66 votes (two-thirds) from it. In Mexico, this explanation is not admissible.

If to this we add the fact that there has traditionally been a senatorial body whose majority control was in the hands of the same political party as the Executive, then the practice of having these simplified agreements is even less comprehensible.

The issue is in no way a new one given that since 1856, it was raised in the debates of the constituent members and at which, Francisco Zarco vigorously condemned the vicious practice of the Executive, stating: “…Under the name of ‘Conventions” constitutional governments have entered into pacts which are true treaties... availing themselves of the benefits and enforcing commitments. And these pacts have escaped the oversight of Congress in an abusive manner, or simply because the Constitution did not use the word ‘Conventions’...”.²⁶

As it transpires, this is not just a play on words rather it is something far more important and sensitive.

These words have had such presence that in its magnificent work, Treaties ratified and Executive Conventions entered into by Mexico, the Senate of the Republic says:

3. In addition to the Treaties which constitute Supreme Law, also included are those known as executive conventions or agreements or as executive accords or treaties and that are entered into by Mexico through the Federal Executive Power, but without being subject to approval by the Senate. While these Treaties do not constitute Supreme Law…they do constitute Ordinary Law…²⁷

The Treaties negotiations Act which appeared in early 1992 coincided with the advent of the negotiations for the future Mexico-United States-Canada Free Trade Agreement.

This fact can lead us to assume that in light of the eventuality of reaching the desired goal and successfully concluding the negotiations which at that time were only envisaged as being bilateral, it turned out to be useful to allow for mechanisms that would facilitate the implementation and updating of their regulations which, throughout the length of the agreed duration period, would be necessary.

We cannot accurately state whether or not there was an idea as to the duration period of the Agreement, but, we safely assume that a short term was not considered.

The above led us to assume that this law was with a view to the future rather than the result of historic experience which cried out for regulation.

The relevance of the task of establishing order was obvious if, in accordance with the information supplied by Ambassador Carlos Bernal in his aforementioned study,²⁸ we take into consideration the fact that: “Out of a total of 1040 international instruments which Mexico subscribed to between 1821 and 1972, a mere 66% were approved or passed by the Senate or Congress, when the Constitutions established the dual-chamber system”.

Although this law enters into the new “open” international policy started by our country in the 70s and which was confirmed by the actions carried out between 1989 and 1994²⁹ aimed at the preservation and strengthening of sovereignty, the protection of the rights and interests of Mexicans living abroad, and international cooperation, just as stated in the Preliminary Recitals of the actual Law, we cannot understand why consideration was not given to historical precedents, diplomatic experience, and particularly, to the constitutional orders, making amendments where considered necessary for successfully achieving the intended objectives.

On the other hand, it would be absurd to suppose that if inter-institutional agreements are not Supreme Law of the Nation, as expressed in paragraph seven of the aforementioned Preliminary Recitals, then they have no legal validity nor foundation.

By establishing obligations and rights for the executing parties, they resemble Legislative Power and by dealing with an endless number of issues, they infringe article 73 in its related sections, as well as those corresponding to the Legislative Chambers.

Furthermore, it affronts article 117 of the Constitution since it empowers decentralized state and even municipal departments and agencies to carry out actions that are expressly forbidden to states of the Republic.

A random inspection of some of its paragraphs, such as III, IV, and VIII, as well as the others pertaining to state powers, shows that they may now do whatever they wish through their lower departments.

The spirit of the text of article 117 is very clear and the erudite Enrique Sánchez Bringas reminds us of it with crystal clarity.

Thus, the powers that are forbidden to the states can be classified as absolute and relative; the first ones are contained in article 117 and are identified as absolute since they cannot be exercised in any case nor under any circumstances whatsoever…

Therefore, it is an irrefutable fact that article 117 of the Constitution finds its existential justification in the need to maintain the federal pact by means of the clear determination of authority between the Federation and the states.³⁰

In light of what has been said, it now transpires that all of this takes a background position as to what this aforementioned Law establishes and allows. Its promulgation was not fortunate and it appears to have been generated through pressures and the need to adapt to temporary situations.

Its description as “unconstitutional” is evident and we join in endorsing the opinions of the aforementioned experts who have more accurately and fortunately analyzed the fact.³¹

In contrast, as we have said, the Law invites the emergence of an endless number of international commitments, thus, in a full meeting, the Supreme Court has recently and definitively strengthened international agreements by establishing the fact that they will have a higher status than federal laws, thus modifying the criteria that was followed in the past whereby they had the same hierarchy, in accordance with the text of article 133 of the Constitution.³²

Fortunately and by their own definition, inter-institutional agreements will not be compared with Agreements and they are not Supreme Law of the Nation (Preliminary Recitals, paragraph 7).

The analysis we have conducted leads us, by necessity, to briefly refer to one of the explanations for their existence that is contained in the aforementioned Preliminary Recitals.

Said reason lies in the relevance of updating the system of negotiation of international commitments and “…precisely establish the obligation to coordinate the actions of decentralized departments and agencies of Federal Public Administration with the Ministry of Foreign Affairs when entering into international agreements as well as inter-institutional agreements”.

For this purpose, consideration has been given to the Vienna Convention on the Law of Treaties of 1969 and that which applies to Treaties between States and International Organizations of 1986; ratified by Mexico in 1974 and 1988, respectively.

Given the necessary reference we will make further on in this document upon appraising the legal effects of the Vienna Convention on the “parallel letters”, we will now refer briefly to the most salient elements of the Convention.

On May 23, 1969, the United Nations General Assembly adopted the project drawn up over several years by its International Law Commission and following its thirty-fifth ratification, it came into effect on January 30, 1980.

“Consequently —and as accurately stated by Mr. César Sepúlveda— there are two different coexisting legal systems on international treaties. One of these is contained in the 1969 Convention and the other is established under customary law…”.³⁴

This means that for our country, which has signed the Treaty, its regulations are enforced and in matters not covered, the second one will encompass the vast majority of countries.

In contrast, in the case of the United States of America, which has not ratified the Treaty, it does not adhere to the regulations of Vienna.

The ambit of enforcement of the Convention is the Treaty entered into by two or more States (article 1).

What is the meaning of “Treaty”?

“An international agreement executed in writing between or among States and governed by international law... whatever may be its particular name” [article 2, paragraph I a)] (emphasis added).

I will now select the precepts that are closest to our subject matter and we will come back to them later on.

Article 7 is based on the premise that every State has the power to enter into agreements and does not necessarily require the full powers of officials to bind the State since it can be assumed that for practical purposes they have them or infer they have them, or, by virtue of their functions on behalf of the State. Consent can expressed in many ways such as by signature, by exchange of instruments, ratification, adhesion, and others (articles 11 to 17).

As regards changing the text of an agreement, there are two ways which prevail: amendment, and modification.

Amendment is the official alteration of certain regulations which affect all of the parties involved in an agreement (article 40).

Modification is only when it affects the relationship between or among certain Parties to the Agreement, but not all of them (article 41).

In both cases, standards of procedure are provided for but the obligation to notify the other Parties to the Agreement is present at all times (articles 40, p. 2, and 41, p. 2).

Needless to say, there are many other points of greater importance and interest but for now, we simply wish to bring attention to those which could apply to our legal assessment.

In brief, from what has been said so far, we can consider that:

1) We already have a panorama of what NAFTA is within the general framework of the commitments contracted by the Parties.

2) We know how the Mexico-United States bilateral rights and obligations on the issue of sugar and sweeteners were contracted.

3) We also know of the existence of the parallel letters regarding these agricultural products which were written at the last minute and only signed by the respective Secretaries of Commerce.

4) We know their texts and that by only being “almost” the same, present certain nuances which affect their results.

5) We are aware of the manner in which they were presented to the United States Congress, namely, in a document package different from the one containing the NAFTA text.

6) We have explained the United States penchant for what are called “executive agreements”, their different types, and their legal effects.

7) We likewise know the situation of Mexico as regards the practice and intent of its legal regulations.

8) Lastly, we know of the existence of a multilateral Treaty known as the Vienna Convention which applies to regulating the execution of agreements and to which the United States is not Party.

In this latter part, we shall now deal specifically with analyzing the “parallel letters” to other related documents and to their legal interpretation.

We warn that by being anomalous though unfortunately not extraordinary, this situation constitutes a tainted practice which threatens the security and certainty of what is intended to be achieved from the signing of international agreements and their furtherance sought through their registration in international bodies, whether these be the most general one, namely, the United Nations Organization or special ones, such as the World Trade Organization.

Consequently and as this is now the possible object of a panel of experts for its analysis, consideration, and opinion, it behooves us to do what is proper, as a scholar in our own right on these legal-international issues.

Therefore, it is unimportant whether this special group in question is set up and operates, it is either that, or the affected parties agree to a peaceful settlement of the issue.

The problem is out in the open and cries out to be analyzed, known about, and judged.

To start, I will remind you that the official presentation of said documents to the United States Congress on November 4, 1993, was part of a package containing other documents and that the letters in question were listed as number “2”, together with others grouped under the title of citrus fruits.

Consequently, we will only deal with the aforesaid that refers to sugar and sweeteners.

Let us likewise bear in mind the fact that prior to said presentation but on the same day, the mandatory “fast track” package containing the NAFTA text and the legal instruments for its implementation had already been sent to Congress.

As we know, President Clinton expressly stated that this involved the aforementioned documents contained in Package #1 (which we will call it to be better distinguish it), that the others did not require Congressional approval, and that he was only sending them Package #2 for their information and to make them aware of the possible benefits for the United States, but only in the event that NAFTA were approved.

The members of Congress undertook the task of reviewing, eventually reading, and in some cases, expressing an opinion.

There is a document of over 600 pages entitled “Record Debate in the U.S. Congress on Constitutionality of Side Agreements of the North American Free Trade Agreement” which contains the comments, judgments, and opinions of senators and members of Congress.

There are various presentations which will be useful in dealing with what follows in this case.

For the purposes of order, I will begin by referring to the situation in Mexico regarding the “parallel letters”, followed by their legal consideration in the United States, and will conclude with an overall view in the light of the Agreement itself, and of International Law.

1. Situation in Mexico

For the first time, we will now make a comment as to the whereabouts of these “parallel letters” and the copies that should be in Mexico’s possession given the fact that as they crossed, logic would dictate that the originals went to the counterpart government and that each has copy of same.

At the time, there were statements and brief comments from the authorities informing the public of the existence of certain letters classified as “technical” and that would serve to precisely establish some points of NAFTA that were thus required to facilitate its implementation without complications.³⁵

In statements made later to the media, the head of SECOFI upon addressing the Senate of the Republic and in response to reporter’s questions about the “parallel letters” stated that they had not been presented together with the text of the Agreement since this was unnecessary because they were simply technical documents to back it up.³⁶

This situation was recently confirmed at a meeting of the Chamber of Senators comprising the LVIII Federal Legislature held on October 10, 2000, which dealt with the aforesaid documents, affirming on Point No. 1 of the Agreement: “That the documents known as the “Parallel Letters” were not submitted for the consideration or approval of the Senate of the Republic and as such, do not comply with the provisions of article 133 of the Political Constitution of the United Mexican States”.³⁷

To expand further and given that a general principle of International Public Law is that international commitments cannot be refuted by pleading defects in Internal Law, it would be advisable to formulate other considerations.

1st. Since the “parallel letters” were not negotiated by the President of the Republic, they only carried the name of Mr. Jaime Serra Puche, Minister of Trade and Industrial Development in the bottom signing place, and that they were not known to the Senate of the Republic, they do not constitute an international agreement or treaty in the constitutional terms already frequently mentioned.

2nd. In order to be considered as an “inter-secretarial” agreement drawn up between the USTR and SECOFI, they had to have complied with the general outlines provided for in article 7 of the so-called “Law of Treaties”.

Setting aside or disregarding our opinion on the unconstitutionality of the foregoing and supposing —without conceding— that it were an “inter-secretarial agreement, then SECOFI should have notified the Foreign Affairs Ministry of its intention to enter into such an agreement and then later obtained a “ruling”, as it is called, from said ministry.

Were it convenient, it should have been recorded in the respective register.

Upon conducting an enquiry before the Foreign Affairs Ministry, I was informed that they were unaware of the existence of said letters since no ruling had ever been issued, and even less included, in the aforesaid documents.

Therefore, this second argument proves that they do not have the status of “inter-institutional agreements” either and thus, in the eyes of the law, they do not exist.

3rd. There will no shortage of individuals who will attempt to overcome these presentations and argue that pursuant to the Vienna Convention, Mexico is obliged to respect them since article 2, paragraphs 1, a) and 2 say so.

First, we have to determine whether the signature alone —if it bore the stamp of the Minister of Trade and Industrial Development— may be considered as representative of the State and with sufficient authority to bind the latter, just as we have stated that the relevant articles of the Convention establish.

It is easily acceptable when the agreement which it is intended to modify was signed by the President of the Republic and not by the Minister, as it would transpire within the hypothesis proposed in article 7, paragraph b) when it is supposed that it can be deduced in the practice followed by the State in question, that the person whose name appears in the document, namely the head of SECOFI, has been considered as the representative of the State for said purposes.

Even less acceptable would be the premises of the same precept that appears in paragraph 2, since they deviate from the functions he performs, as long as it involves:

a) Heads of State.

b) Heads of diplomatic missions.

c) Representatives accredited by States before an International Conference or before an international organization.

Notwithstanding the lack of realizing the aforementioned hypotheses, article 8 provides for a prevention measure that makes it possible to “expiate” the legal shortcoming that might arise and this is so, if the State that was attempted to be represented unduly later confirms the act carried out.

In the case under consideration, we have already stated that the Mexican Senate has just taken up the matter and has rejected the “parallel letters” because it was not aware of them at the time, thus confirming their legal nullity. Consequently, this possibility is not being brought up to date.

Let us take notice of the purpose and effects sought by the “letters”: consistent with modifying the text of paragraph 15 of annex 703.2 and eliminating paragraph 16 of the NAFTA.

We have already stated that Part IV of the Vienna Convention deals precisely with these points, and, that articles 39, 40, and 41 establish the procedural regulations which must be adhered to for said purposes.

A primary condition is that respect be paid to what the agreement itself provides for in this matter. Ergo, the agreement must validly exist because in fact, it had not yet been approved by either the United States Congress or by the legislative bodies of Mexico and Canada.

Therefore, there was no treaty yet to be amended. The logical thing to do would have been for the Parties to open the text and renegotiate.

This did not happen for the simple reason that the United States President no longer had the authority to negotiate, as we said earlier.

Consequently, we reiterate our remark stating that it is not possible either to apply this hypothesis regarding the modification and amendment of an agreement that did not exist yet.

As regards our internal laws and considering that Treaties become supreme Law, their modification must be done pursuant to article 72, paragraph f) of the Constitution, which states: “For the interpretation, amendment or repeal of laws or decrees, the same procedure as established for their formation shall be observed”.

Since this was not adhered to, they lack legal effect.

To conclude this last part of our study, we must remember that the Vienna Convention is still not accepted by the United States government, therefore, its regulations do not apply to the case under review and I feel it is unlikely they will sign it.

Professor John H. Jackson, mentioned earlier, opines that the Convention is: “…a convenient reference on the rules of international law, or those governing treaties, even though various nations are not bound (not formal parties, such as the United States)…”.³⁸

However, we decided to conduct the analysis so as to clear any doubt since there has been no shortage of people who insist upon Mexico’s commitment, without paying heed to the legal inapplicability of the Agreement.

It is nonetheless useful since its own regulations take in the trends and practices accepted by the States as valid.

2. Situation in the United States of America

Having already considered the issue of the existence of executive agreements and of the different kinds that exist within the United States diplomatic practice, we will now refer to the location of the “parallel letters” within the system.

To start with, NAFTA is an Executive-Congressional Agreement around which, orbit three supplemental agreements and the “parallel letters”, as well as other additional documents whose legal status is different.

A review of these immediately shows us that they can be perfectly located in different drawers of legal classification, agreeing both with previous existing texts in positive norms and in the decisions and interpretations which the Supreme Court has handed down, above all because of the affectation they can give to federal and local laws, as well as to the sovereignty of the states of the Union.

Thus, it is accepted that the United States government can be bound internationally, not only through the senatorial agreements but also through the executive agreements (United States vs. Curtis Wright Export Co., 299US304 [1936]).

What interests us now is to determine to what extent the commitments acquired in trade matters can be valid, if they have not been approved or passed by the Senate.

The reason is that, given the original authority of Congress in this matter, its handling by the Executive would seem to be neither informal nor simple.

The example of NAFTA is a clear one given that prior to its negotiation, the express authorization of Congress had to be obtained, which Congress not only gave but also subjected it to a peremptory term for its negotiation and established certain conditions.

As it was negotiated in time and form, NAFTA thus has the statute of an executive-congressional agreement. Its characteristics concur with the interpretations formulated in such a classic related case as that of Weinberger vs. Rossi 456 U.S. 25 (1982), or that of B. Altman and Co. vs. United States 224 U.S. 583,601 (1912), and Dames and Moore vs. Regan 453 U.S. 654,686 (1981).

However, we cannot ignore the fact that there are voices, particularly in the academic world, that have spoken out in recent years against this practice of the Executive Power and that have come to question the constitutionality of agreements of such importance as that referring to the signing of the World Trade Organization.

On different occasions in Congress, review meetings have taken place on the issue, as occurred in 1975 and 1976, which led to reviewing the thoughts of such experts on the subject as Rovine, Matthews, McDougal and Laws, Borchard, Lung Chu Yen, Geshard Von Glahn, Joseph M. Sweeney, and others.³⁹

The result has become embodied in the legal regulation which produced the 1974 and 1988 laws we mentioned earlier.

Nevertheless, where this legal clarity does not exist is in the case of the other kinds of executive agreements, which are the presidential executive agreements or “sole executive agreements”.

A. Presidential executive agreements and the “parallel letters” according to United States practice and law

We stated earlier in the applicable part that in contrast to the executive-congressional agreements, those called “presidential” or “sole” executive agreements give rise to serious doubts as to their legitimacy in the light of the United States Constitution.

Originally, it was considered that the United States President had certain powers implicit to the due execution of his office and that he could manage these with certain discretion, without any intervention by the Senate. (article II, section 2, paragraph 1).

On occasions, the doctrinal thesis was cited of the “ultra vires” exercise of presidential power and its admission as binding in International Law.⁴⁰

For several years and on various occasions, these instruments have been used fundamentally in matters of war or complicated confrontations which attracted a great deal of public interest or attention. The State Department published a work in 1950 which reviewed this diplomatic practice and stressed the foregoing.⁴¹

Directly connected with these mechanisms there are two very important cases in the history of the territorial expansion of the United States, one of which unfortunately affected Mexico.

For almost ten years, Texas lived an independent existence and was later annexed to who was keeping up the fight against its renouncement.

On April 12, 1844, the annexation treaty was signed with the Republic of Texas but upon presentation before the United States Senate, it was rejected for several reasons, the most important one being that is should have had greater formality.

This response did not discourage Secretary of State Calhoun given that through joint resolutions of each of the Houses whose members voted by simple Majority, the approval sought by the Executive was obtained, without intervention by the Senate as provided for in the Constitution,⁴² which was announced on March 1, 1845 stating the birth of a new state and on December 29 of the same year, the annexation was concluded.

Hawaii was annexed in a similar manner on July 7, 1898.⁴³

In both cases and despite the enormous economic and political benefits they would produce, it was clear that the use of “sole executive agreements” needed greater formality and in a certain way, reserve was shown.

As we already mentioned, it was said that this kind of agreements must have more dignity.

There has obviously been no lack of opportunity for the Supreme Court to endorse these “gray” agreements or acts, in keeping with the criteria that the hypotheses and requirements of globalization demand the strong exercise of presidential powers.

By obligation, we cite the cases of the United States vs. Belmont 301 U.S., 324 (1937) United States vs. Pink 315 U.S., 229-30 (1942); and Dames and Moore vs. Regan 453 U.S. 654 (1981). This third trial has become a kind of classic since it not only confirms the thesis of the legitimate presidential authority to act independently of the Senate and bind his country to an international commitment as well as directly binding the states of the Union but it also strengthens his actions in other terrain such as international claims against the United States.

The subject matter of the case was the holding of hostages and their liberation by the government of Iran in exchange for resolving lawsuits pending against the former in United States courts. To a certain degree, this also affected jurisdictional functions.

Some analysts have considered that Congress has implicitly favored this practice of settling claims and lawsuits by way of the “sole executive agreements”, as shown by the promulgation of the International Claims Settlement Act, 22 U. S. C., section 1623 (a), 1988.

However, there has been no shortage of comments sustained by some analysts that given the circumstances whereby various cases of claims have required certain laws of later implementation or approval, in essence, they do not constitute “sole executive agreements”.

Criticism has been constant and has increased against these agreements because they lack constitutional validity.

As a result, Professor Steve Charnovitz considers that we are seeing a resurgence of the position defended by congressman Brieker and the modification proposal that carries his name will soon come to light in an attempt to put an end to and limitations upon these presidential actions, which lack constitutional foundation.⁴⁴

Both the professor mentioned above as well as other authors who include Sandra Le Priol-Vrejan⁴⁵ have dealt with the NAFTA supplemental agreements, namely, the one on labor and especially the one that refers to environmental protection and these authors have criticized them and questioned their legitimacy.

From all of this we can deduce that serious internal questions exist as to the legitimacy and validity of the “parallel letters” and with it being possible to force Mexico in the terms intended since their location and classification within the system of international agreements of the Executive can only be determined as “sole executive Agreements”.

Whoever would doubt that they are, simply needs to remember that in the letter which accompanied the document Package #2 he sent to Congress on November 4, 1993, President Clinton took great care to specify that there were Supplemental Agreements and other documents amongst which, he lists the letters on sugar and sweeteners.

As I said at the beginning of this essay, this distinction is not accidental since it distinguishes the legal difference between both agreements and whereas the first do constitute executive-presidential agreements, the second ones were less formal and were announced from the time of the “fast track” authorization in May 1991, whose execution followed the signing of NAFTA and were concluded on August 13, 1991, according to official announcements by the three governments involved, who classified the others as simply “agreements and other documents”.

The fact did not escape the attention of Congress members —with the NAFTA concluded, considered as an Agreement outside the approval of the Senate but nevertheless authorized and on its way to obtaining the approval of Congress via the “fast track”— that now these supplemental agreements should appear.

A group of eleven legislators questioned President Clinton as to the legal status of these agreements and thus, through a letter from Congressman George Brown, put the question to him on July 20, 1993.

The International Trade representative, Mikey Kantor, took time to reply but on October 8, he informed the legislators that this involved some executive-presidential agreements or “sole-presidential agreements” and literally said: “The supplemental agreements are executive agreements. The agreements do not require Congressional Approval since they are executive agreements and are not formally part of or annexed to, the NAFTA”.

The prevailing current of opinion in Congress was that the Supplemental Agreements were in fact “sole executive agreements”, according to the comment made by Senator for Rhode Island, John H. Chafee, who, amongst other things, emphatically stated that:

“The President can enter into the side agreements without approval of Congress, because they are not trade agreements… The side agreements are not before us. If you look at this legislation, the side agreements are not in it…”.

Charnovitz refers to this opinion as well as others to judge the illegitimacy of the Side Agreements.

If we estimate that the “parallel letters” were still located at a lower level than the Side Agreements —which had indeed been previously mentioned by Congress, and the President had informed as to their conclusion since August, and if there is doubt as to their legal validity— then with greater reason the aforementioned letters have even less presence.

B. Could President Clinton enter into the side agreements and the “parallel letters”?

The question we ask ourselves stems from the existence of an arbitrational and indeterminate authority somewhat present in the half-light of the powers inherent in its exercise and which has been defended by Executive staff and which some legislators have justified.

In principle, it would appear from what has been said that yes, he could, because of being executive agreements, and the practice supports this.

In fairness, we have to estimate that both are not locked in the same drawer, therefore, if the first ones can be explained, the second ones cannot.

Either way, their timing is criticized and consequently, so is their legal validity since, as we have said, all of them form part of a whole and in order for them to operate and function, NAFTA must first be approved, as President Clinton clearly said in his accompanying letter to Package #2.

For this reason, it is not legally possible to separate them from the principal.

A Reminder that the Executive had authorization to negotiate and conclude the NAFTA, within a specific timeline which expired on May 31, 1993.

Both the Supplemental Agreements as well as the “parallel letters” were signed later on, thus making it legally impossible to do so and an admission would imply an exercise beyond presidential powers, namely, authority was overstepped.

Therefore, all of these documents are tainted with nullity.

Due to its relevance, we will cite what was stated by Senator Stevens for Alaska on the subject, taken from an excerpt of the aforementioned document.⁴⁶

“The NAFTA side agreements overstep the authority of the President, because:

• Additional non trade side agreements under fast-track are unprecedented and were not authorized or mentioned in the fast-track legislation passed by Congress.

• Side agreements were negotiated more than two months after the expiration of presidential fast track authority on June 1, 1993.

• Because they are nontrade in their subject matter, the side agreements cannot be considered “necessary and appropriate” under the language of the Trade Act of 1974, and thus, the Administration’s stated reason for including the side agreements with the NAFTA implementing legislation is negated.

• The President did not meet his obligation under the Constitution, which grants Congress the authority to regulate foreign commerce, to consult and gain the approval of Congress before entering into international agreements. The side agreements are, thus, without legal effect.

The weight of opinion is both evident and precise and hence, its conclusion lends credence to our opinion. In brief —being the presidential authority in question, not very precise but all in all, exercised in certain matters— in this particular case, it is not admissible either because it was executed outside the timeline contemplated by Congress for the purpose.

This justifiably explains that he should have sent the supplemental agreements and “other documents” in a different package, namely #2, and also should have stated that he was under no obligation to do so since the “fast track” did not call for it, nor did Congress have to approve them.

Hence his insistence in attempting to separate them from the NAFTA in an effort to make them look like something else. The Congress didn’t buy it, and therefore has considered that the side agreements including the “parallel letters” were negotiated without the legal authority to do so, outside the Fast Track authorization.

C. The “parallel letters” should not have been entered into either since their purpose is unlawful and they lack legal foundation

The text of the “parallel letters” makes it very clear they were intended to modify the text of the NAFTA in paragraphs 15 and 16 of annex 703.2, since the first one changes what was negotiated and in the second, it disappears.⁴⁷

There can be no doubt as to the reason: to protect the U.S. sugar industry.

We have explained the precedents and we stand by them. The effect of the aforesaid letters will make it impossible for the Mexican sugar industry to export to the U.S. market all of its surplus, beyond a certain limit.

In addition, as the internal demand for fructose rises, said surplus will be increasingly lower. Even taken separately, the aforesaid letters cannot have legal validity since by virtue of changing the text of the FTA, approved by Congress, the latter’s approval would be needed to modify it.

In other cases, it has been seen that upon obtaining Congressional approval to enter into a trade agreement, the President can eventually modify it.

We would mention a similar free trade agreement which is the one executed between Canada and the United States to establish a free trade zone FTA [19 U. S. C. Sect. 212 (e) (1988)].

In contrast and in spite of its similarity to the NAFTA, it did not happen this way, therefore, there is not a shadow of doubt that the President did not have the authority to do so.

Mr. Kantor attempted to justify it by explaining that it involved “last-minute agreements” but what he never made clear was that they were signed outside the legal term or timeline for the purpose.

One of the authors consulted, Professor Erikson, affirms that in the case of executive agreements, Congressional approval must be obtained to negotiate and conclude them, making a distinction between the authority to enter into them and the authority to conclude them.⁴⁸ The President cannot act at his whim or discretion, on pain of his actions being nullified.

As we have said several times, the zeal of Congress is clear and attempts to prevent the Executive from shirking his authority.

In fact, it has been stressed that allowing these executive agreements would increasingly and more seriously jeopardize the democratic process since it would impede the participation of legislators as representatives of the states in matters that will affect them.⁴⁹

D. If the legitimacy of executive-presidential agreements has no solid grounds, then they are more sensitive when they involve foreign trade

In necessary reflection, we see that traditionally, these executive agreements have been used in issues of high political content but fundamentally, in cases of war or in military affairs.

In recent years, they have become extended to different problems but that are also connected in some way with war-like events such as claims for acts by the Executive against foreigners.

It wasn’t until the 70s that they approached the issue of foreign trade and this becomes sensitive given the fact that, as has been said, the Constitution exclusively grants that power to Congress.

This practice is of growing concern to defenders of the “clause of treaties” which we call specially when used outside of cases of war, national emergency, the settlement of claims, or even in the recognition of foreign governments.

As has been seen, it casts doubt on the legitimacy of the latest and most important agreements which are those assumed under the Uruguay Round, the acceptance of the World Trade Organization, and NAFTA itself, as well as the supplemental agreements.

With greater reason we can consider that the “parallel letters” have no legal value since they lack even the least objective foundation.

In order to regulate imports, a law passed by the legislature is required, therefore, the letters in question which were expressly presented to Congress are in a legal vacuum and have no binding force.

To illustrate the foregoing, we will cite the following cases: “United States vs. Yoshida Int’l Inc. 526 F. 2d. 560, 571-83 (C. C. P. A., 1975); “Consumers Union of U.S. vs. Kissinger et al., 506 F. 2d. 136, 142-43 (D. C. Cir 1974).

E. Failure to notify the GATT of the signing of the “Parallel Letters”

On January 29, 1993, the three signatory countries of the NAFTA officially notified the GATT that they had entered into the agreement and that they were sending the latter —for information purposes, pursuant to article XXIV, paragraph 7 (a) of the General Agreement— a copy of the text and tariffs negotiated, depositing a consultation copy with the Secretariat for those interested.⁵⁰

In contrast, sources consulted have stated that the texts modifying the original document never reached the GATT.

Consequently and for legal effects, the “parallel letters” do not exist in GATT archives either.

This failure of compliance has only one explanation and that is, its irregularity.

Therefore, we can draw the following:

First: On November 4, 1993, President William L. Clinton presented to the Congress of the United States two packages of documents pertaining to the North American Free Trade Agreement:

1) The first package, containing the text and legislation necessary for its implementation.

2) The second package, containing a set of documents that did not require official Congressional approval, in the number of six, appearing in the second term, the “parallel letters” referring to sugar and sweeteners.

Second: According to the classification formulated by President Clinton himself, the distinction is made between supplemental agreements, agreements, reports, and technical letters.

Third: Through its Executive, the United States Government can enter into different international agreements but only those treaties that are approved by the Senate, are contemplated in the Constitution.

Fourth: Based on the review and opinion of precedents and experts on the subject, it is firmly concluded that the so-called “parallel letters” are found to be “presidential executive agreements” or “sole executive agreements”.

Fifth: These kinds of agreements evade or sidestep the strict control of the Senate which, pursuant to the law in the matter, since 1974 regulates the so-called “congressional executive agreements” which deal with foreign trade.

Sixth: Given that the subject matter of the aforementioned trade corresponds to the exclusive authority of Congress, the latter’s approval is required in order to negotiate any convention or agreement that affects tariffs and, Congressional approval upon culmination must be obtained.

Seventh: The negotiation in question has a term or timeline upon expiration of which, the authority to exercise it expires, using the concept known as “fast track”.

Eighth: In the case of the NAFTA, this system was followed and its term of effect for negotiation ran from May 1, 1991, through May 31, 1993.

Ninth: The “parallel letters” were dated November 3, 1993.

Tenth: For multiple reasons and arguments stated, I consider that the “parallel letters” lack legal validity.

Eleventh: Therefore, according to the practice and under United States law, they cannot modify the text of the FTA.

Twelfth: As regards the situation of Mexico, NAFTA was opportunely approved by the Senate of the Republic in the exercise of the legal powers conferred upon it by article 76, paragraph 1 of the Constitution.

Thirteenth: The “parallel letters” did not accompany the text negotiated by the Executive and approved by the Senate, therefore, they are nonexistent.

Fourteenth: Due to reasons stated, they would have no value, even if they had been presented.

Fifteenth: Neither can they be considered as “inter-secretarial” agreements since they did not comply with the formalities required by the Law of Treaties.

Sixteenth: The regulations of the Vienna Convention, although they do not apply since the United States is not party to it, were analyzed and according to the Convention, the letters in question have no value either.

Seventeenth: Lastly, it can be concluded that there are no legal precepts in either of the countries, national or even international, that give legal force to the documents in question.

Consequently:

The original text of annex 703.2, paragraphs 15 and 16 of the NAFTA, remain in the form in which they were duly negotiated and approved by the countries Party to it, conserving all obligatory value between the parties.

Notes
* Translated by Terry Burgess.
** Doctor of Laws from the University of Madrid. Professor of International Public Law and International Mercantile Law. Industrial-Sector Coordinator for the COECE in International Trade Negotiations, for the Chairs of Dispute Settlement and Unfair Practices of NAFTA and EUFTA, and the other International Trade Agreements subscribed by Mexico.
1 Model Regulations of Procedure of Chapter XX of NAFTA. To date, these have not been published in the Official Federation Gazette. They can be consulted at the website of the NAFTA Secretariat.
2 Cruz Miramontes, Rodolfo, “Washington rejects the Mexican proposal of the establishment of a Trade Tribunal, R. Cruz”, El Financiero (newspaper), Mexico, March 6, 1992.
3 Hall, Kevin G., “US and Mexico attempt to resolve sugar dispute”, The Journal of Commerce, USA, March 20, 1998, and, “Mexico may seek NAFTA panel on sugar Dispute with US”, Dow Jones News Wires, 9-08-99.
4 For additional information, see, amongst others: Cruz Miramontes, Rodolfo, El TLC (The Free Trade Agreement): Disputes, Solutions, and other related subjects, Mexico, McGraw Hill Interamericana Editores, 1997.
5 On August 21, 1990, the President of Mexico sent a letter to his US counterpart proposing the negotiation of the Agreement. To learn about the steps taken prior to and during the negotiations, it is suggested you consult: Von Bertrab, Hermann, El Redescubrimiento de América, Historia del TLC (The Rediscovery of America, a History of the FTA), Mexico, Fondo de Cultura Económica (Economic Culture Fund), 1996. See also: Garciadiego, Javier, et al., El TLC día a día (The FTA day-to-day), Mexico, Miguel Angel Porrúa, 1994.
6 El Financiero (newspaper), Mexico, March 6, 1992: “The former Chairman of the National Chamber of the Cement Industry states that if the agreement cannot be achieved of a mechanism which eliminates discretionary and unfair practices in the moment of settling disputes, the very essence of NAFTA will come into question”.
7 Hermann Von Bertrab, who was immersed in the process as the person in charge of the NAFTA office in Washington, D. C., gives us details of what occurred. See Von Bertrab, Hermann, op. cit., note 6, pp. 210-254. See also: Posadas, Alejandro, “NAFTA’s approval: A Story of Congress at Work…”, LSA Journal of International and Comparative Law, USA, Volume 2, Winter, 1996.
8 “Many of the deals were formalized through letters of understanding, but others were the product of unwritten political compromises”, says Mr. Alejandro Posadas, op. cit. footnote 7, p.443.
9 Von Bertrab, op. cit, note 6, p. 240.
10 We find this identification in Rousseau, Charles, International Public Law, Barcelona, Ediciones Ariel, 1961, pp. 25 and 39.
11 Professor Alonso Gómez Robledo’s interesting study: “Approximations to International Legal Framework”, in Witker, Jorge (coord.), El Tratado de Libre Comercio de América del Norte. Análisis, diagnóstico y propuestas jurídicos (The North American Free Trade Agreement. Analysis, diagnosis, and legal proposals), Mexico, UNAM, Instituto de Investigaciones Jurídicas (Legal Research Institute), 1993, t. I, p. 67, quotes Professor Oliver T. Covey, who formulated this curious distinction.
12 Jackson, John H. et al., Legal problems of international economic relations, 3rd Edition, USA, West Publishing Co., 1995, p.118.
13 Rousseau, Charles, op. cit., note 11, p. 39.
14 To a certain degree and in relevant cases, the Supreme Court has been coming out against this practice of the Executive, charging and stating that these agreements lack “dignity” by virtue of not having been passed by the Senate. Fisher, Louis, American Constitutional Law, USA, McGraw Hill, Georgetown University, 1995, p.362.
15 Cruz Miramontes, Rodolfo, “Entorno Jurídico del TLC” (Legal Environment of the FTA), Panorama Jurídico del Tratado de Libre Comercio (Legal Panorama of the Free Trade Agreement), Mexico, Universidad Iberoamericana, Law Department, 1993, t. II.
16 On this issue, see Cruz Miramontes, Rodolfo, “Asilo y extradición. Derecho y práctica en México” (“Asylum and Extradition. Law and practice in Mexico”), El Foro (The Forum), Mexico, Organ of the Mexican Bar, Colegio de Abogados (Mexican Bar), No. 32, 1973. See also Cruz Miramontes, Rodolfo, “El caso Álvarez Machain” (“The Alvarez Machain case”), Ars Iuris, Mexico, Universidad Panamericana, No. 8, 1993.
17 Adame Goddard, Jorge, “El Tratado de Libre Comercio en el orden jurídico mexicano” (The Free Trade Agreement in the Order of Mexican Law”), in Witker, Jorge (coord.), El Tratado de Libre Comercio de América del Norte. Análisis, diagnóstico y propuestas jurídicas” (The North American Free Trade Agreement. Analysis, diagnosis, and legal proposals), Mexico, UNAM, Instituto de Investigaciones Jurídicas (Legal Research Institute), 1993, t. I, pp. 83 and 84.
18 Palacios Treviño, Jorge, Tratados: legislación y práctica en México (Agreements: legislation and practice in Mexico), Mexico, 1986.
19 See Cruz Miramontes, Rodolfo, La Ley Norteamericana de Inmunidad del Estado Soberano de 1976 (Foreign Sovereign Immunities Act of 1976), Mexico, Instituto Mexicano de Comercio Exterior (Mexican Institute of Foreign Trade), 1981.
20 See Cruz Miramontes, Rodolfo, “Las Comisiones Fluviales Internacionales y la Comisión Internacional de Límites y Aguas” (“The International Rivers Commission and the International Commission on Waters and Limits”), Natural Resources Journal, USA, University of New Mexico, t. 18, num. I, January, 1978, pp. 111-129.
21 Starke, I. G., An Introduction to International Law, Great Britain, Butterworths and Co., 1963, p. 323.
22 Ministry of Foreign Affairs, Los convenios ejecutivos ante el derecho constitucional e internacional (The Executive Agreements in the Light of Constitutional and International Law), Mexico, Instituto Mexicano “Matías Romero” de Estudios Diplomáticos (The Mexican “Matías Romero” Institute for Diplomatic Studies), s. f.
23 Ortiz Alfh, Loretta, Derecho internacional público (International Public Law), Mexico, Harla, 1993, pp. 45-57.
24 Bernal, Carlos, “Los convenios ejecutivos ante el derecho constitucional e internacional” (“The Executive Agreements in the light of Constitutional and International Law”), Jurídica, Mexico, Universidad Iberoamericana, No. 12, 1980.
25 Article 63 of the Constitution and 158 of the Regulations for the Internal Governance of the General Congress of the United Mexican States.
26 Zarco, Francisco, Historia del Congreso Extraordinario Constituyente 1856-1857 (History of the Extraordinary Constituent Congress) (1856-1857), as cited by Dr. Antonio Martínez Baez, “Paper by Doctor Antonio Martínez Baez”, in Ministry of Foreign Affairs, Los convenios ejecutivos ante el derecho constitucional e internacional (The Executive Agreements in the light of Constitutional and International Law), Mexico, Mexican “Matías Romero” Institute for Diplomatic Studies, s. f., p. 16.
27 Senate of the Republic, Treaties ratified and Executive Conventions entered into by Mexico, Mexico, 1972, t. I, p. XIII.
28 Bernal, Carlos, op. cit., note 25, p. 48.
29 National Development Plan 1989-1994.
30 See Sánchez Bringas, Enrique, “Article 117”, Constitución Política de los Estados Unidos Mexicanos (Political Constitution of the United Mexican States), Mexico, UNAM, Instituto de Investigaciones Jurídicas (Legal Research Institute), 1985, pp. 286 and 287.
31 Mr. Carlos Bernal describes the Executive Agreements not approved or passed by the Senate as unconstitutional, op. cit., note 25, p. 56. Ortiz Ahlf, Loretta, op. cit., note 24, p. 52.
32 Thesis P. LXXVII/99, p. 46, Volume X, November, 1999.
33 Mexico has been a Party to this since February 14, 1975.
34 Sepúlveda, César, Derecho internacional público (International Public Law), 18th edition, Mexico, Porrúa, 1997, p. 562.
35 November 7 and 13, 1993. See: Garciadiego, Javier, op. cit., note 6.
36 Gazcón, Felipe, Reforma, Mexico, September 3, 1977, Business Section; González, Lourdes, El Financiero, Mexico, Economy Section, same date; Mena, Yadira, El Economista, Mexico, Industry and Trade Section, same date.
37 See: la Propuesta que en defensa de la industria mexicana del azúcar tomará el H. Senado de la República considerando que es de urgente resolución (Proposal that in defense of the Mexican Sugar Industry will be taken by the Senate of the Republic in consideration that it urgently needs to be resolved). See also: Rodríguez, Leticia, “El Senado presiona a Zedillo sobre el caso del azúcar” (“The Senate puts pressure on Zedillo regarding the case of sugar”), El Financiero, Mexico, October 11, 2000.
38 Jackson, John H. et al., op. cit., note 13, p. 125, footnote of page 16.
39 I wish to express my appreciation to my colleague Irwin P. Altschuler and partners for his support, bibliographic information, and invaluable comments on the subject.
40 Question put by Senator Brewster to the Department of State legal advisor, G. H. Hackworth, in the matter of the San Lorenzo waterway on November 29, 1944, cited by William W. Bishop, International Law, New York, Prentice-Hall, 1954, pp. 90 and 91.
41 The Law of Treaties as Applied by the Government of the United States of America. See also: The restatement (third) of foreign relations law.
42 The bibliography on the Texas episode is extensive so I will only cite certain works relevant to this point, such as: Smith, Justin H., The Annexation of Texas, New York, A. M. Press, which was originally published in 1911 and reprinted in 1971. See also: Republic of Texas. Its History and Annexation 1836 to 1846, written by its last President, Anson Jones. Facsimile edition by the Rio Grande Press, Chicago, 1966. See also: “Texas vs. White” 74 U.S. (7 Wall, 700 [1868]).
43 Bishop, William B., op. cit. note 41, p. 87. “Hawaii vs. Mankechi” 190 U.S. 197 (1903).
44 Charnovitz, Steve, “The NAFTA Environmental Side Agreements”, International and Comparative Law Journal, 1994, pp. 257 and 295-297.
45 Priol-Vrejan, Sandra Le, “The NAFTA Environmental Side Agreements and the Power to Investigate Violations of Environmental Laws”, Hobstra Law Review, USA, No. 23.
46 Record of Debate in U.S. Congress on Constitutionality of Side Agreements of the North American Free Trade Agreement (Vol. 139, No. 162) 139 Cong. Rec. S. 16352.
47 Apparently another letter existed dated November 4, 1993, sent by Dr. Jaime Serra Puche to his counterpart, M. Kantor, the text of which is almost the same as that of the previous day but makes no reference to the elimination of paragraph 16. Since this letter was not presented to the United States Congress, we have not included it in our analysis.
48 Erickson, Richard J., “The Making of Effective Agreements by the United States Department of Defense. An Agenda for Progress”, B. U. International Law Journal, No. 45, 1995, p. 13.
49 Weiss and Tribe opine in this regard. Weiss, Jack S., “The Approval of Arms Control Agreements as Congressional Executive Agreements”, UCLA Law Review, USA, No. 38, 1991, pp. 1533, 1554 and 1555; Tribe, H., “Taking Text and Structure Seriously. The World Trade Organization...”, Hearing before the Senate. 103 Cong. 1994.
50 Doc. 1/7176, February 1, 1993, Council, February 9, 1993.