Archive for
March, 2008

US Military Thought about Recruiting — or Hiring — Bloggers

by Kevin Jon Heller

Researching the Legislative History of U.S. Treaties

by Duncan Hollis

Government in Opposition: What Happens if McCain Sweeps Obama, Part I

by David Fontana

Experiential Learning and the Marginalization of International Law

by Roger Alford

Time to Move the ICC?

by Julian Ku

Medellin: Questions for Students

by Curtis Bradley

A Paper Topic

by David Fontana

Medellin and Teaching

by William S. Dodge

I just finished reading and absorbing Medellin today. I mentioned the case several times in my Constitutional Law I class in the fall, and students seemed quite intrigued by the interesting fact pattern and issues presented by the case.

Which leads me to the following question: Can readers think of a good place to teach Medellin in an introductory Constitutional Law class? At GW, our required, introductory Constitutional Law focuses on structural issues (federalism and separation of powers). That means that one large part of the class is spent on the Commerce Clause/Spending Clause/Tenth Amendment, and the other large part of the class tends to focus on Youngstown/war on terror cases/Chadha/executive privliege.

Where can you fit Medellin in? As part of the Youngstown discussion? Can you make the self-executing issue part of a Constitutional Law course? Have others thought of teaching Medellin in a Constitutional Law course, or have they perhaps taught Sanchez-Llamas in their classes before?

Where Theory Meets Practice

by David Fontana

Medellin and Youngstown

by Roger Alford

[William Dodge is a law professor at UC Hastings]

I’ve not seen anyone comment yet on what I thought was one of the more notable aspects of Chief Justice Roberts’s opinion, its application of Justice Jackson’s Youngstown analysis. The question is how to read congressional silence. Although I am greatly oversimplifying, Jackson seemed to read Congress’s failure to authorize what the President did in Youngstown as implicit disapproval (category 3). In Dames & Moore, by contrast, Justice Rehnquist read Congress’s silence as approval (category 1). Roberts’s opinion in Medellin seems to follow Jackson rather than Rehnquist and to treat silence as implicit disapproval (category 3).

As chance would have it, Rehnquist clerked for Jackson the term that Youngstown was decided and Roberts clerked for Rehnquist clerked the term that Dames & Moore was decided. I’m sure there is a great law review article to be written here (though I am not the one to write it).

The State of Comparative Constitutional Law Redux

by David Fontana

A Quick Response to Marty: Justice Stevens is a Foreign Affairs Federalist!

by Julian Ku

I wanted to jump in with a quick response to Marty’s awesome post about what is, without question, the most surprising (and for me, delightful) part of the Medellin opinion: Justice Stevens’ concurrence.

I love this concurrence, especially because I am (to put it mildly) rarely fond of Justice Stevens’ forays into foreign relations law. This is, after all, the author of both Rasul and Hamdan. But give the Court’s senior justice his due: Justice Stevens seems to be genuinely constrained by his view of the law, and not his very clear policy preferences (to rule for Medellin). This may be true of the other Justices, but it is much harder to tell.

So here’s my take on his thinking: Article 94 does not, in his view, require the United States to comply with the ICJ ruling. All it has to do is “undertake to comply,” which in his reading, is not a mandatory obligation. So the Supremacy Clause is imposing a non-mandatory obligation on the U.S. here and neither authorizes the President’s action nor requires Texas to do anything. All Texas is obligated to do is whatever the U.S. is obligated to do, which is to “undertake to comply,” which is non-mandatory.

To put it another way, the “obligation” here for Texas is one of upholding honor and integrity with respect to conduct with foreign nations. Justice Stevens is recognizing here something that I have argued in a number of law review articles (at greatest length here): state governments have often believed they had the primary duty to manage certain aspects of foreign relations that intersected their domain. And the federal government has often agreed that the states have this task, and has left such questions to the states. (Recall that in both the Breard and LaGrand cases, President Clinton basically took that position with respect to those earlier ICJ rulings).

This is why Stevens is asking, pleading, for Texas to come to its senses and give Mr. Medellin his hearing. He is recognizing that, in the U.S. system, the states often are the only governmental entities empowered to fulfill certain treaty international law obligations (although they have no constitutional duty to do so). It is a bit a strange result, but it is actually (in my reading of historical practice) hardly unprecedented.

More Signs that Serbia is Giving Up on Kosovo: It Plans to Seek an ICJ Opinion

by Julian Ku

Why Do the US and the Commonwealth View “Lecturers” Differently?

by Kevin Jon Heller

Justice Stevens Almost Gets It Right

by Marty Lederman

In the beginning of his concurrence in Medellin, Justice Stevens reads Article 94 not to require the Texas state courts to take steps to ensure that the U.S. complys with the ICJ judgment. I disagree with his interpretation of “undertakes to comply,” but he’s almost convinced me that it’s a close question, at least with respect to whether the treaty (plus the Supremacy Clause) imposes an obligation on the state court to entertain a habeas petition that state law would otherwise foreclose.

In any event, and more to the point, Justice Stevens then includes (page 4-5) a remarkable paragraph that in my view gets right to the heart of the matter, which is not whether the ICJ judgment is “enforceable in court,” but instead whether the State of Texas as a whole has a constitutional obligation to see to it that the ICJ judgment is honored:

Under the express terms of the Supremacy Clause, the United States’ obligation to “undertak[e] to comply” with the ICJ’s decision falls on each of the States as well as the Federal Government. One consequence of our form of government is that sometimes States must shoulder the primary responsibility for protecting the honor and integrity of the Nation. Texas’ duty in this respect is all the greater since it was Texas that—by failing to provide consular notice in accordance with the Vienna Convention—ensnared the United States in the current controversy. Having already put the Nation in breach of one treaty, it is now up to Texas to prevent the breach of another.

OK, so Texas (as well as the federal government) has a constitutional obligation to prevent the U.S. from breaching Article 94. I agree. And if Texas were to execute one of the 51 defendants before they were afforded “review and reconsideration” of their sentences by someone, Texas would then cause the U.S. to breach Article 94, which Texas may not do.

Having read this paragraph, one might expect Justice Stevens to then conclude that, even if there is no way (absent federal statute) to judicially enforce this obligation against Texas, nevertheless Texas is constitutionally required to do the right thing.

But for some reason, Justice Stevens pulls his punches at the last minute: Instead of writing that “The Court’s judgment, which I join, does not change the fact that the State of Texas is required to take appropriate action to prevent a breach,” Stevens writes that “The Court’s judgment, which I join, does not foreclose further appropriate action by the State of Texas.”

As though Texas has a choice in the matter.

Can anyone reconcile this closing sentence with Stevens’s earlier paragraph (quoted above), which (correctly, in my view) speaks of Texas’s constitutional “duty” and “obligation”?

Medellin v. Texas and Treaties’ End

by Oona Hathaway

As many have noted, the Supreme Court’s decision yesterday in Medellin v. Texas raises serious questions about the binding nature of United States’s treaty commitments. The Court holds as follows: “Because none of these treaty sources creates binding federal law in the absence of implementing legislation, and because it is uncontested that no such legislation exists, we conclude that the Avena judgment is not automatically binding domestic law.” (Slip Op. at 10). In other words, the Optional Protocol to the Vienna Convention on Consular Relations may be binding as a matter of international law, but it is not binding domestic law because it is not self-executing and there is no federal legislation that puts the obligation into effect.

This decision just serves to prove a point that I make in my article, Treaties’ End, which was the subject of a forum on Opinio Juris last week. In the article, I argue that treaties can be more difficult to enforce in U.S. courts than congressional-executive agreements. That is in part because some treaties are not self-executing. (I put to one side, for now, the question of whether the Court was right that the treaty obligations at issue in Medellin are or are not self-executing.) In such cases, two problems can emerge. First, a non-self-executing treaty could impose an international obligation on the United States that would be unenforceable as a matter of domestic law—because the necessary implementing legislation has not been passed—leaving the country in violation of its international obligations. (That is essentially what the Medellin Court decided had happened in that case.) To avoid this problem, the Senate usually postpones its advice and consent to a non self-executing treaty until implementing legislation can be enacted concurrently. Alternatively, it might give its advice and consent to the ratification of a treaty contingent upon the subsequent enactment of implementing legislation. That did not happen here—either because everyone involved assumed the treaty obligations were, in fact, self-executing or because the nature of the treaty obligations were not expected to give rise to individual claims under the treaty that could only be satisfied if there were federal implementing legislation (if the latter were true, that would represent a serious lack of foresight that should have been addressed once the individual claims were in fact filed).

As I argue in my article, congressional-executive agreements make it possible to avoid these dilemmas. Congressional-executive agreements are created by means of legislation passed by both houses of Congress. Unlike non-self-executing treaties, congressional-executive agreements provide one-stop shopping: the same act that provides the authority to accede to the international agreement can also make the necessary statutory changes to implement the obligation incurred. Had the Vienna Convention and Optional Protocol been entered as congressional-executive agreements, it is extremely unlikely that the Court would have held in Medellin that the treaty obligations were unenforceable in U.S. courts as a matter of domestic law.

First Reaction on Medellin, Self-Execution, Etc.

by Mark Weisburd

[Mark Weisburd is the Martha M. Brandis Professor of Law at UNC Law School.]

I find it difficult to read Medellin as institutionalizing a presumption against self-execution. If that had been Roberts’s intent, the form of his argument should have been, “We presume non self-execution, is there anything to overcome the presumption?” Instead, he analyzed the text, ratification hearings, and practice of other treaty parties to conclude that Art. 94 was not intended to create obligations for domestic courts. The conclusion seems reasonable to me – 94(2)’s according the Security Council discretion to refuse to enforce an ICJ judgment is hard to reconcile with a domestic judicial duty to enforce those same judgments – but it certainly isn’t reached with the aid of presumption.

David Sloss’s post makes an important point regarding the branch of the federal government with the repsonsibility to execute particular treaties. As he pointed out to me in a colloquy some time ago, whatever the status of some generic ICJ judgment, this particular judgment specifically requires action by American judges and it is impossible to carry out the international obligation admittedly created by the judgment without judicial action. The problem I see is that, if Art. 94 in general does not require domestic judicial implementation, and if the Senate consented to American submission to the ICJ only on the understanding that there was no requirement of domestic judicial enforcement, what happens when a particular ICJ judgment is meaningless without such enforcement? I find the Senate’s understanding crucial. Necessarily, it seems to me, the “treaties” to which the Supremacy Clause refers are those to which the Senate understood itself to be consenting. That is, a treaty for purposes of American judicial treatment imposes only those obligations which the Senate saw the treaty as creating. So – to address David’s argument – if the treaty to which the Senate thought it consented never requires judicial enforcement of ICJ judgments, then that’s the treaty which is the supreme law of the land. It may well be reasonable to argue that, at least on these facts, that not the best reading of Art. 94, but, if I’m right, the only issue is determining the Senate’s understanding of the treaty, not determining whether that understanding necessarily makes sense. Indeed, when the Court holds that the Senate’s understanding of Art. 94 as creating no domestic legal effects disables the president from seeking to implement Avena, it seems to put just that degree of weight on the Senate’s understanding.

Three other quick points. First, I think Ernie Young is exactly right that upholding the effect of Bush’s memo here would have had immense consequences. The administration’s argument was that the president can negate state law in order to carry out international legal obligations not otherwise binding in the US. Given the breadth of at least some readings of customary international law these days, it’s hard to imagine a subject as to which the President could not, effectively, legislate by decree if that argument had prevailed. I would add that the Court’s take on the consequences of the Senate’s understanding would seem to put to rest the controversy during the Reagan administration regarding the President’s authority to “reinterpret” treaties, according them a meaning different from that the Senate thought they had when it consented to ratification. Finally, regarding Paul Stephan’s point about the Court’s examining other states’ readings of Art. 94, I would note that this follows straight from the Vienna Convention on the Law of Treaties. Indeed, one of the reasons the ICJ was wrong in LaGrand and Avena was that it ignored other states’ readings of the Consular Convention.

Comment on Medellin

by Edward Swaine

[Edward Swaine is an Associate Professor of Law at the George Washington University Law School. ]

The quick scorecard on Medellin is pretty simple: Texas wins, the ICJ loses, and the President loses. I have lots of reactions to what the opinions say about the ICJ, non-self-execution, and even comparative law, but let’s just focus on this bottom line.

The first two claims have already been spun. As to Texas, Peter makes the point that freedom may have a price. (And Justice Stevens thought that Texas might step up and take one for the team; I suppose hope springs eternal.) As to the ICJ, Chief Justice Roberts suggests that a sparer approach to self-execution is indispensable for U.S. treatymaking, since any other approach might “hobble” U.S. willingness to enter into agreements by causing too much anxiety about what courts would do. If this reasoning is accepted – and there’s something to it, though I am not persuaded – it probably applies even more forcefully to dispute-resolution mechanisms, so this decision could be celebrated as a shot in the arm for U.S. willingness to go before the ICJ! (Not that it will particularly improve the reception once we get there, but you can’t have it all.)

So what about the third result — the President’s loss? I myself have argued that President should be understood to have the authority to implement even some non-self-executing treaty obligations via the Take Care Clause, which is a constrained kind of power — it authorizes only to the extent it binds. The Court gives that the back of the hand. It also rejects what the executive branch was arguing, which depended on the power to make sole executive agreements, and should be understood as cutting back on attempts to extrapolate from that line of precedent. As many have pointed out, however, the circumstances giving rise to this assertion of presidential power are pretty unusual: Not only is the President trying to embrace an ICJ decision that the United States lost, but he is doing so while continuing to insist that the ICJ was wrong. Not too appealing a pitch, and not too likely to come up in the near future, even if the Court has single-handedly saved dispute resolution.

So is there a countervailing upside for the President, like there is for the ICJ? Something much more substantial, to my reckoning – if not exactly to my liking. The near presumption against self-execution, the reliance on domestic political branches to confirm that presumption, and the deference to executive branch treaty interpretation, among other things, all force the conclusion that it will be yet harder in the future to invoke treaty obligations in court contrary to executive branch interests. Even a marginal change along this line of authority is quite important to presidential authority, since it applies in many more circumstances, and in many cases of keener concern to the President, than will the case’s holdings with regard to ICJ decisions. Geneva Conventions, anyone?

The End of “Respectful Consideration” and the Birth of Disaggregated Deference

by Roger Alford

There is much one could say about Medellín, but I want to focus on the meta-question of what this decision portends for the future of international courts and tribunals. While the domestic effect of ICJ decisions is now cast into serious doubt (at least in terms of direct enforcement), I think there is far more reason to be hopeful than some are suggesting.

First, the Court emphasized that the effect to be given to international courts and tribunals depends first and foremost on whether there is a federal mandate to respect such decisions. It emphasized that such a federal mandate might be found in a self-executing treaty or a congressional statute. The Court said it agreed “as a general matter [that] an agreement to abide by the result of an international adjudication can be a treaty obligation,” but found that “the particular treaty obligations on which Medellín relies do not of their own force create domestic law.” (p. 24). The Court also agreed that a statute could have the same effect. “The judgments of a number of international tribunals enjoy a different status because of implementing legislation.” (p. 25).

Second, the Court fully embraced the principle that domestic effect should be given to decisions of international courts and tribunals if that is what federal law requires. As I have written elsewhere, this domestic effect falls along a continuum of deference. The Court cited with approval the “full faith and credit” approach of 22 U.S.C. 1650a, which treats ICSID decisions exactly the same as domestic court decisions. (p. 25). It also cited with approval an “arbitration model” under the New York Convention that accords great deference to international arbitral decisions pursuant to the Federal Arbitration Act. (p. 26). The decisions of the Iran-United States Claims Tribunal are the best example of an international tribunal that falls within this sort of approach. Although somewhat less clear, the Court also appears to accept a “foreign judgment” model, provided the international tribunal is rendering monetary awards (rather than injunctive relief) and provided the international decision does not contravene domestic law. (p. 26). Mass claims tribunals such as the UNCC are possible candidates for such a foreign judgment model. (It is also worth noting that the citation in footnote 1 to the La Abra case involving the U.S.-Mexico Claims Commission–one of the few Supreme Court decisions utilizing a foreign judgment model for an international tribunal decision–may suggest that if a foreign judgment model is to be employed, again the treaty (or implementing legislation) must mandate that approach.)

Third, the Court effectively relegated ICJ decisions to the same status as the decisions of the WTO Appellate Body. Direct recognition of WTO decisions is precluded by implementing federal legislation (19 U.S.C. 3512(c)). Under this implementing legislation, the political branches must decide what domestic effect to give to WTO decisions. Apparently the same now applies to ICJ decisions. ICJ decisions may be given domestic effect, but the mechanism is through the political branches. The President tried to do that, but failed in his choice of mechanism. Obviously if it so desired, Congress could achieve what the President’s Memorandum did not. That frequently happens with WTO decisions, with Congress amending the law to bring the United States into conformity with our international obligations as interpreted by WTO Appellate Body decisions.

Fourth, the Court did not address the issue of indirect recognition of decisions of international courts and tribunals. On this score nothing has changed. Charming Betsy remains vibrant and there is every reason to think that domestic courts in construing statutes will continue to rely on decisions of international courts and tribunals (including the ICJ) to interpret international law. The same goes for using international decisions as persuasive authority to understand the content of international law in matters such as ATS claims or boundary disputes.

We are witnessing the end of the era of “respectful consideration” and the birth of disaggregated deference. That is, the degree of deference domestic courts should accord to decisions of international courts depends on what federal law (i.e., self-executing treaties or implementing legislation) requires. That mandate may be more or less than “respectful consideration.” In the absence of such a federal mandate, international tribunal decisions will not have direct effect, but they will continue to enjoy indirect recognition as tools of interpretation.

Further Thoughts on Medellin

by David Sloss

I wanted to react quickly to two of the other items posted earlier today. First, Paul Stephan makes the point that Justice Breyer’s dissent is “very problematic.” I agree. Breyer’s opinion does not make a helpful contribution to untying the “Gordian knot” of non-self-execution doctrine.

Second, Curt Bradley claims that the Court’s decision effectively reserves “to Congress the determinations of whether and how to comply with the ICJ decision.” With due respect for Curt, whose views are usually very insightful, I think this assessment is wrong. Even if the Court held that courts are obligated to enforce the Avena decision, Congress would retain the power to decide “whether and how to comply with the ICJ decision,” because Congress could enact a statute to override the Court’s decision. The real issue here concerns default rules — what should the courts do in the absence of congressional action? The Court effectively endorses a default presumption against judicial enforcement (although the Court does a very poor job of explaining when that default presumption applies). In contrast, the Framers endorsed a default presumption in favor of judicial enforcement, as evidenced by the constitutional text specifying that “the judges in every State shall be bound” by treaties. Thus, the Court’s decision does not empower Congress. To the contrary, it effectively amends the Supremacy Clause by instructing state courts not to enforce treaties — or not to enforce some ill-defined category of treaties — in the absence of Congressional action.

Posner on Medellin: Chastening the Transnationalists

by Peter Spiro

Eric Posner has this post up on Medellin on Slate’s new law blog Convictions, which wraps up with the following:

There is an academic theory that holds that the type of litigation (sometimes called “transnational legal process”) exemplified by the Medellin case would eventually bring the United States into greater and greater compliance with international law. But with the benefit of hindsight, we see that the opposite has been the case. The U.S. government reacted to this litigation by withdrawing from the protocol that gave the ICJ jurisdiction over these cases, and the U.S. Supreme Court has reacted to this litigation by weakening the domestic effect of treaties, expressing discomfort with international adjudication and making clear that the president lacks the power to compel the states to comply with treaties. The United States will violate or withdraw from international law when its national government wants to, and sometimes it will do so even when its national government does not want to.

But this is at least partly false. The U.S. is in fact clearly in greater compliance with the VCCR today than it was in, say, 1998, when the Supreme Court first addressed the consular notification rights issue in the Breard case. In 1998 there were probably only a handful of local law enforcement officials, even high up the chain, who had even heard of the VCCR. A decade later, it’s only one level below Miranda. Even law enforcement officers in Texas probably try to toe the line, if only because they now understand the kind of headaches that come with noncompliance. It’s an astonishing success story, the entrepreneurial use of the VCCR. It could only have happened against a backdrop in which IL was generally coming to count for more.

No doubt today’s decision is a loss for the transnationalist camp, as was the US withdrawal from the Optional Protocol, and there may have been some overreaching/wishful thinking along the way. But equating Medellin with necessarily diminished US compliance is to take an overly court-centric view of the international legal dynamic. Although it would help to enlist them more fully as enforcement agents, international law does not need the federal courts to achieve meaningful efficacy. Other countries with substantial interests in the VCCR can keep up the heat through other channels, in ways that will work to further improve aggregate U.S. compliance over the long run.

Medellin and the Perversion of Legal Realism

by David Sloss

In Medellin, the Court held “that neither Avena nor the President’s Memorandum constitutes directly enforceable federal law . . . .” This comment focuses on the effect of the Avena judgment itself, and disregards the President’s Memorandum. The majority was undoubtedly correct to hold that Avena is not “directly enforceable federal law.” In fact, Avena is not federal law at all. The Constitution is federal law. Statutes are federal law. Treaties are federal law. But decisions of the ICJ are not federal law.

The Court erred, however, by concluding that Article 94 of the U.N. Charter is not federal law. See Roberts, slip op. at 10 (stating that the U.N. Charter does not create “binding federal law in the absence of implementing legislation”); id. at 24 (“the particular treaty obligations on which Medellin relies do not of their own force create domestic law”); id. at 31 (“A non-self-executing treaty, by definition, is one that was ratified with the understanding that it is not to have domestic effect of its own force.”) The Chief Justice, unfortunately, confused two entirely separate questions: whether Article 94 of the U.N. Charter is federal law, and how the treaty obligation is to be executed.

Article 94(1) of the Charter stipulates: “Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party.” Chief Justice Roberts tried to answer the question whether Article 94 is federal law by analyzing the text of the treaty. This is like trying to answer a question about Venezuelan law by looking in the U.S. Code. The question whether the U.N. Charter is federal law is a question about U.S. constitutional law. Accordingly, the answer is to be found in the text of the Constitution, not in the text of the treaty. The Constitution states that “all Treaties made . . . under the Authority of the United States, shall be the supreme Law of the Land.” Since the U.N. Charter was made under the authority of the United States, it is the supreme Law of the Land: i.e., it is federal law. By deciding that the U.N. Charter is not federal law, the Court has effectively rewritten the text of the Supremacy Clause to say that treaties are the Law of the Land unless we, the Supreme Court, decide otherwise.

Given that Article 94 is federal law, the next question is how to execute the U.S. treaty obligation. As noted above, Article 94 obligates the U.S. to comply with the ICJ decision “in any case to which it is a party.” There is no dispute that the U.S. is obligated to comply with the ICJ decision in Avena because the U.S. was a party in Avena. At the risk of over-simplifying, one can say that Avena obligates the U.S. to provide a judicial hearing for Medellin for the purpose of deciding whether he was prejudiced by the violation of his rights under Article 36 of the Vienna Convention on Consular Relations (VCCR). So, in the present case, the question of how to implement the U.S. obligation under Article 94 becomes a question of how to implement the U.S. obligation to provide a judicial hearing for Medellin.

In this regard, it is helpful to recall Justice Iredell’s opinion in Ware v. Hylton, 3 U.S. 199 (1796). In Ware, Justice Iredell distinguished between executed and executory treaty provisions. Treaty provisions are “executed” if “from the nature of them, they require no further act to be done.” Id. at 272. In contrast, executory treaty provisions require some further action by the U.S. government. Justice Iredell divided executory treaty provisions into three groups: legislative, executive, and judicial. See id. at 272-73. Whether an executory treaty provision requires legislative, executive, or judicial action depends on the nature of the international obligation, and the capacity of the respective branch of government to implement that obligation.

Chief Justice Marshall’s analysis in Foster v. Neilson, 27 U.S. 253 (1829), was entirely consistent with Iredell’s analysis in Ware. Marshall thought that Article 8 of the 1819 treaty with Spain was executory because the specific treaty language – “shall be ratified and confirmed” – required further government action. (It bears emphasis that Marshall was drawing a distinction between executory and executed treaty provisions, a distinction that depended on whether the treaty required further government action. See David Sloss, Non-Self-Executing Treaties: Exposing a Constitutional Fallacy, 36 U.C. Davis L. Rev. 1, 19-24 (2002)). The specific government action required by the treaty, in Marshall’s view, involved the transfer of real property from one private party to another private party. Legislative action was necessary because the treaty obligated the U.S. to convey title to real property, and the legislature was the only branch of government competent to execute that obligation. Foster neither states nor implies that legislative action is always necessary to execute an executory treaty provision. Thus, the Court in Medellin erred by construing Foster to mean that a non-self-executing treaty always requires legislative implementation. See Roberts slip op., at 30. As Justice Iredell explained in Ware, some executory treaty provisions require legislative action, but others require executive or judicial action, depending on the nature of the international obligation.

The application of this framework in Medellin is very straightforward. As noted above, the U.S. obligation under Avena and Article 94 of the U.N. Charter is to provide a judicial hearing for Medellin. There is only one branch of government capable of executing that obligation: the judicial branch. As Justice Breyer noted in his dissent, the obligation could be implemented either by the federal judiciary or the Texas state courts, but there are a variety of factors that weigh in favor of state court implementation. Regardless, the correct application of Foster and Ware to the facts of Medellin leads inexorably to the conclusion that Article 94 is an executory treaty provision that requires judicial execution because the judicial branch is the only branch competent to execute the U.S. obligation to provide a judicial hearing for Medellin. This does not mean that every ICJ decision is directly enforceable in U.S. courts. As Justice Iredell explained in Ware, it depends on the nature of the obligation that flows from the particular ICJ decision.

The fundamental flaw in the Court’s analysis in Medellin stems from its failure to distinguish between two very different questions: 1) is Article 94 of the U.N. Charter federal law?; and 2) what is the appropriate mechanism to execute U.S. treaty obligations under Article 94? The Court conflated these two questions by combining them into a single question: whether Article 94 is self-executing. This muddled analytical approach is symptomatic of a broader trend in U.S. jurisprudence that can be traced, in part, to the rise of legal realism a century ago. Justice Holmes thought that a so-called “law” is not really “law” if it can’t be enforced. Henry Hart argued persuasively that effective application of Holmes’ insight necessarily requires a two-step analysis: 1) is the relevant instrument a “law”?; and 2) what is the best way to enforce that law? Under Hart’s approach, the assumption is that all laws must be enforced in some way because the very nature of “law” is that it must be enforced.

Unfortunately numerous courts and commentators have twisted Holmes’ idea to produce the opposite result. They think that courts should simply bypass step one, proceed directly to step two, and ask whether the relevant law explicitly requires judicial enforcement. Under this approach, if the law does not explicitly require judicial enforcement, courts should refuse to enforce it. Whereas Holmes believed that the idea of an “unenforceable law” is a contradiction in terms, modern realists have perverted Holmes’ key insight and produced a wide range of judicial decisions that effectively render valid laws unenforceable. Medellin is the latest in this misguided series of decisions. In Justice Roberts’ perverted version of Holmesian realism, Article 94 of the U.N. Charter is not domestically enforceable (without legislative action) because it does not specify a domestic enforcement mechanism. Since Article 94 is not domestically enforceable, it is not federal law – even though the Constitution states unambiguously that it is federal law!!! Justice Holmes is rolling over in his grave.

Making Texas Pay for Its Sins, or Why Ernesto Medellin May Live Out His Days in Prison

by Peter Spiro

I’ll venture a cautious prediction beyond the four corners of the opinion: Medellin will not be executed. I don’t think it will result from anything that happens in Washington; Congress just won’t have adequate incentive to help out a brutal murderer in the name of international legal obligation. The Administration might try to push for implementing legislation sufficient to satisfy the Medellin majority. It’s possible that the Government of Mexico itself will make some approaches on the Hill as well as at Foggy Bottom (where diplomatic hands have now been more tightly bound), thus further bringing Congress directly into the arena of international relations on yet another front. But I just don’t see Congress picking up that ball.

The more intriguing possibility is that Mexico starts waving a big stick around Austin with talk of what I’ve called targeted retaliation. If domestic Mexican constituencies (and for that matter, Mexican citizens resident in the US, who can now vote in Mexican presidential elections) are mobilized, the GOM will have to take some action beyond useless diplomatic demarches (nor does the Security Council route look very promising, even from a PR perspective). So why not start talking boycott? I doubt it could be undertaken as an official move, consistent with the international trade regime, but I don’t think it’s at all implausible that Mexican elites (governmental and non) could start quietly talking about redirected trade and investments. Texas had more than $40 billion in annual exports to Mexico as of 2003. That’s serious money and a lot of jobs. (Why buy a Dell when you can go with Gateway?) Even if a very small percentage made its way to California or other states instead, that would have to make Medellin’s execution look a little less like a top priority. And of course we have the Torres case in Oklahoma by way of precedent (which, in Janet Levit’s account, included “implicit threats of economic retaliation”).

So we might be at the end of the federal judicial road, as Mark Movsesian suggests, but that will hardly be the end of the story here. By further gumming up the treaty enforcement process at the national level, the Court pushes decisionmaking downstairs. But that isn’t necessarily a bad place to advance the rule of international law.

Medellin v. Texas: Another Set of Early Thoughts

by Ernie Young

As lead counsel on the scholars’ amicus brief in support of Texas, I am not entirely unbiased here. But when one can get scholars with as diverse views of executive power as John Yoo and Erwin Chemerinsky to sign on to a brief arguing that the President has gone too far, it shouldn’t be entirely surprising to find that the Court agrees. Here are some early thoughts on the opinions:

1. This opinion certainly gives aid and comfort to those who have argued for a general presumption that treaties are not self-executing, although it might be a stretch to say it holds as much. The Chief’s majority opinion does strongly reject the dissenters’ opposite presumption, and that is important in itself. But keep in mind that the Chief carefully distinguishes between the different ways that treaties may or may not be self-executing. The Vienna Convention is plainly self-executing in that it binds the Houston police to give warnings without further implementing legislation, and it may be self-executing in the sense that individuals can assert violations on their own in court (the Court doesn’t decide). What the Court rejects is that the ICJ’s judgments under the treaty are self-executing in the sense of being directly enforceable in domestic courts. But Medellin was on unusually weak ground here to argue otherwise, given that the Executive had taken the position that such judgments are not self-executing, and both the Executive and the Court (in Sanchez-Llamas) were on record that the judgment to be enforced was incorrect on the merits. These things are going to have to be fought out treaty by treaty, which is probably the right result.

2. The presidential power holding, although it takes a back seat to the self-execution holding in the majority opinion, may be more sweeping in at least one sense. The Court holds pretty categorically that the President lacks power unilaterally to execute a treaty that is otherwise non-self-executing. In fact, the Court says that a determination that the treaty is non-self-executing means that Congress has implicitly disapproved actions to execute the treaty, placing presidential actions to execute it in Category 3, not 2, under Youngstown. Given the broad and amorphous nature of many of the non-self-executing treaties to which we are parties—think of some of the more open-ended trade or human rights instruments—a contrary holding would have been a broad grant of power to the President indeed.

3. The majority also takes what seems to be a major bite out of the sole executive agreement cases like Garamendi, Dames & Moore, and (looking further back) Pink and Belmont. Chief Justice Roberts says that these cases “involve a narrow set of circumstances” concerning the settlement of claims against foreign nations. It will be harder, in future, to cite Garamendi and Dames & Moore for open-ended presidential authority to create binding federal law by sole executive agreements without congressional action.

4. The internationalism of Justice Breyer’s dissent is really quite striking, as is the extent to which this case replicates the usual left-right split on the Court. (Justice Stevens concurs in the result, but his heart seems to be with the other liberals in dissent.) I think that’s unfortunate. The legal question dividing the Court in Medellin concerned the domestic effect of international law, and the allocation of authority between domestic and supranational courts. That should be a left-right issue only on the most cynical view of international law, which is that it provides a vehicle to achieve more liberal results on issues like the death penalty than the domestic political consensus would otherwise stand for. But even if we take that view, the truth is that both liberals and conservatives have things to gain and things to fear from increasing or decreasing the influence of international law and institutions in the domestic legal system. Free market conservatives may approve (and liberals disapprove) of decisions by supranational trade tribunals rejecting local environmental or labor laws, for instance. Reasonable people can differ about the extent to which we should open up the domestic legal system to international law and courts, but they should not differ on the traditional left-right grounds.

Some More Quick Thoughts on Medellin

by Mark Movsesian

[Mark Movsesian is the Frederick A. Whitney Professor of Contract Law at St. John’s University School of Law.]

Thanks to Chris for inviting me to say a few quick words about today’s very significant decision.

Hooray for Dualism: Just as he did two years ago in Sanchez-Llamas, CJ Roberts endorsed a dualist approach to the judgments of international tribunals. Dualism teaches that international and domestic regimes are entirely independent; in the absence of a domestic act of incorporation, international judgments cannot serve as rules of decision in domestic courts. Because there was no valid act of incorporation in this case – the Court believed that the Bush Memorandum did not qualify – Avena did not bind American courts.

This approach is entirely sensible. As a formal matter, neither the Optional Protocol nor the UN Charter can fairly be read to provide for direct effect for ICJ judgments. The functional arguments for dualism are as strong as well. By reserving the final decision on international judgments to domestically accountable actors, dualism promotes legitimacy and avoids unnecessary friction between national and international bodies. Moreover, dualism actually increases the likelihood that nations will create international tribunals. If international judgments automatically bound domestic courts, without any further act on the part of domestic authorities, nations would be much more wary of signing up to international regimes.

The Foreign Judgments Analogy: The Court correctly dismissed the idea that enforcing the ICJ judgment would be effectively the same as enforcing a foreign court judgment or an international commercial arbitration award. While it’s true that domestic courts routinely enforce such rulings, foreign court judgments and ICA awards typically deal with commercial disputes that do not impinge on domestic public policy. Here, by contrast, the ICJ ordered the retrial of scores of defendants who had been convicted of serious crimes and indirectly questioned American policy on the death penalty. These are hardly the sort of issues that come up in the foreign-judgments and ICA contexts.

The End of the Road: For the last decade, the American international law academy has been pressing the Court to be more receptive to ICJ judgments. Ten years ago, in Breard, the Court held that a preliminary ICJ ruling merited only “respectful consideration.” Two years ago, in Sanchez-Llamas, the Court declined to treat a final ICJ judgment as binding precedent. And now the Court has ruled that ICJ judgments are not enforceable. For better or worse (on balance, I think it’s for better), it’s clear after this morning that the campaign to change the Court’s mind has failed. New justices might see things differently, of course — though it’s significant that even Stevens voted with the majority today. For now, though, it seems time to move on to other projects.

Local Lad Makes Good: Hollis Cited in Justice Breyer’s Medellin Dissent

by Chris Borgen

Our own Duncan Hollis was cited by Justice Breyer in his Medellin dissent. Justice Breyer cites to Duncan’s essay A Comparative Approach to Treaty Law and Practice, which is from the book National Treaty Law and Practice, co-edited by Duncan, Merritt R. Blakeslee, and L. Benjamin Ederington. The first cite to Duncan’s essay appears on page 11 of the dissent. Other authors from Duncan’s book are cited as well.

Congratulations, Duncan!

Medellin v. Texas: “Modest and Fairly Careful”

by Paul Stephan

A first read through the Medellín opinions leads to tentative observations, subject to revision:

• Chief Justice Roberts’ opinion for the Court is modest and fairly careful. He does not articulate a presumption against self-enforcement, or offer a general interpretive template. The analysis of the Optional Protocol and the UN Charter is specific to those two instruments. As my prior briefs and published work indicate, I find this part of the opinion completely persuasive. I take issue with the glib assumption that a commitment to comply with an international tribunal’s decision implies an automatic assignment to the judiciary of the authority to ensure that the commitment is honored.

• Although the opinion is limited in the sense that it does not offer a general rule for inferring self-executing from treaties, its dicta states strong views (it might be too strong to say it disposes of) concerning several controversies that the academic community has taken seriously. (a) The Court understands self-execution to refer to all forms of domestic enforcement, not just to the existence of a private right of action. Its definition of self-execution in footnote 2 may clarify our discussing going forward, even if some may quarrel with the definition used. (b) Reservations, declarations and understandings that limit or foreclose self-execution of a treaty that might otherwise have domestic effect seem acceptable to the Court. The Sosa Court also hinted as much. (c) And the idea of domestic enforcement of the awards of international tribunals does not seem to cause any great concerns, at least in the abstract. This will disappoint some who have suggested that domestication of such awards might present problems under Article III or other constitutional provisions.

• As a teacher of comparative law, I was delighted to see the Court’s reliance of the evidence of other country’s enforcement of ICJ decisions. I missed seeing a discussion of the recent decision of the German Constitutional Court regarding the Vienna Convention, although it may be too recent, too complex, and too tangential to make any of the briefs. The basic point that domestic implementation of international obligations has a comparative component and that an appreciation of foreign practice enriches our understanding of our own.

• As I was serving in the Executive Branch at the time of the drafting of the U.S. amicus brief and the oral argument, I am disappointed by the last part of the Court’s opinion. I would have thought that there was more to the US’s argument that the Optional Protocol, the UN Charter, and 22 U.S.C. § 287 can be read as assigning to the President the discretion to implement ICJ decisions through changes in domestic law. This argument, to be sure, is neither clear nor ineluctable. Still, I came away feeling that the Chief Justice was a bit like the person who, having a hammer, sees everything as a nail. That is to say, the opinion works so hard to clarify and establish what it means to say that a treaty is not self-executing that it rushes past a plausible and even useful refinement, namely that the treaty makers in advance might specify a nonlegislative mechanism for deriving valid domestic law from an otherwise non-self-executing treaty. To accept this argument, one would have to see Dames & Moore , Belmont and Pink not simply as cases recognizing a limited Presidential power that inheres in Article II, but also an expression of the expectations of the legislative branches when authorizing the President to enter into dispute resolution with foreign states. One might still argue that the treaty makers or Congress have to do more than simply sign on to dispute resolution to give the Executive the authority to choose to implement an international award or not. But here the Court’s opinion struck me as less careful or persuasive than what went before.

• If I had had any doubts about the persuasiveness of the majority’s discussion of the non-self-executing issue, Justice Breyer’s dissent would have put them to rest. The Chief Justice was remarkably restrained in his deflection of the dissent’s very problematic claims and proposals.

• This will not end all Vienna Convention litigation. We still have to decide what, if anything, Section 1983 adds: The Circuits are split. So the gift to which Julian refers will keep on giving for at least a little longer.

Medellin and Congress

by Curtis Bradley

There is a way in which the Medellin decision fits very nicely with our discussion last week about congressional-executive agreements. Like Oona’s article, the decision in Medellin is very pro-Congress. The Court’s finding of non-self-execution means that it is reserving to Congress the determinations of whether and how to comply with the ICJ decision. Similarly, the Court’s presidential power holding means that the President must work with Congress if he or she wishes to convert non-self-executing international law into U.S. law. Finally, the Court’s reliance on Justice Jackson’s framework from Youngstown, particularly category 3 of that framework, envisions a significant role for Congress, even in foreign affairs. All of this is to be applauded, in my view.

Medellín, Non-Self-Executing Treaties, and the Supremacy Clause

by Steve Vladeck

First, my thanks to Kevin, Peggy, and the OJ crew for a chance to post my own initial reaction to Medellín.

Leaving the international law to the international law scholars, and the Court’s odd parsing of the VCCR’s ratification history to those who are more familiar with it, my own interest in the Chief Justice’s majority opinion in Medellín is in his rather bold attempt to clear up decades of uncertainty over just what, for constitutional purposes, a “non-self-executing treaty” actually is. (I assume, for the sake of argument, that the VCCR’s optional protocol is one such treaty.) Footnote 2 of the majority opinion provides the Court’s new definition:

What we mean by “self-executing” is that the treaty has automatic domestic effect upon ratification. Conversely, a “non-self-executing” treaty does not by itself give rise to domestically enforceable federal law. Whether such a treaty has domestic effect depends upon implementing legislation passed by Congress.

Whereas forests have been felled on the question of whether a non-self-executing treaty merely fails to provide a cause of action, or also fails to provide judicially enforceable rights, I take footnote 2 as resolving that longstanding debate—and doing so in favor of the latter, broader, view. Indeed, in the paragraph leading up to footnote 2, the point is made even more explicitly—that non-self-executing treaties “do not by themselves function as binding federal law.”

If so, this is an extremely important development, and one that seems thoroughly at odds with the plain text of the Supremacy Clause (to wit, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land . . . .”). Is the Chief Justice’s view really that non-self-executing treaties are not “treaties” under the Supremacy Clause? If so, then Medellín overrules a litany of earlier cases that declined to draw such a distinction for purposes of the Supremacy Clause, and sub silentio at that…

I had always thought the more compelling argument was that non-self-executing treaties don’t create private rights of action. On that view, they still create positive law, per the Supremacy Clause, but law that could only be privately enforced through otherwise available causes of action.

Where this distinction would make an enormous difference is where a statute provides a cause of action for the enforcement of “treaties,” without specifying whether the treaty must be self-executing or not. An obvious example, of course, is the federal habeas statute, which provides both jurisdiction and a cause of action for claims by a detainee that “he is in custody in violation of the Constitution or laws or treaties of the United States.” (emphasis added).

I’ve argued previously that non-self-executing treaties should nevertheless be enforceable under the habeas statute, given that the Habeas Corpus Act of 1867 deliberately modeled this provision on the Supremacy Clause, and given that non-self-executing treaties, in my view, are still “treaties” under that constitutional provision.

I’m perfectly happy to accept that I might be wrong; it would hardly be the first time. But would it have been so hard for the Medellín majority to provide more than a cursory explanation for why? Given the significance of the implicit suggestion here–that non-self-executing treaties simply aren’t “treaties” under the Supremacy Clause–at least some analysis might have been helpful…

Medellin’s Lawyer Speaks!

by Julian Ku

My former boss and Medellin’s counsel Donald Donovan (of Debevoise & Plimpton LLP) sends out this reaction to the Medelllin decision.

Donald Francis Donovan of Debevoise & Plimpton LLP, New York, counsel to petitioner Jose Ernesto Medellín, in response to the March 25, 2008 decision of the United States Supreme Court in MEDELLIN v. TEXAS:

We are disappointed in the Supreme Court’s decision, which is a departure from the original intent of the framers of the Constitution and over 200 years of enforcement of treaties by U.S. courts. But the Court unanimously confirmed that the United States has agreed by treaty to comply with the Avena judgment, and that the United States has the means to comply with it. While the Court has held that another step is required, we are confident that the President and the Congress will take that step, to ensure that the United States complies with the commitment that the elected representatives of the American people made when they agreed by treaty to comply with ICJ judgments. Having given its word, the United States should keep its word.

Medellin: It’s About the Death Penalty

by Peggy McGuinness

As the early analysis starts to pour in on the Supreme Court’s Medellin opinion, I did a quick scan of the headlines. As I have argued here and here, the case is, at bottom, about the persistence of the death penalty in the U.S. and the efforts of close allies and neighbors of the U.S. to do something about it. Check out the early headlines, which reflect the centrality of the case to the death penalty and immigration debates:

US High Court Denies Hearing to Death Row Mexicans (Bloomberg)
Court rules against Bush, Mexican on Death Row (Reuters)
Supreme Court overrules Bush, OKs Texas execution (CNN)
Bush Overruled in Death Penalty Dispute (ABC)

Of course, there are the inevitable Texas-themed headlines:

Court doesn’t mess with Texas; denies new trial (Baltimore Sun)

As we read and watch the news coverage of the case, it will be interesting to count the uses of the word “Mexican,” “immigrant,” “murder,” and “death penalty.” And “World Court,” which sounds so much more ominous than “International Court of Justice.”

Medellin: My Early Thoughts

by Julian Ku

The Supreme Court’s Medellin decision today brings to an end a fascinating decade-long series of interactions between the U.S. Supreme Court, the International Court of Justice, and various state governments. Beginning in 1998, the Supreme Court has now weighed in four times on the ICJ’s various interpretations of the Vienna Convention on Consular Relations, the UN Charter, and the ICJ Statute (once in Breard, twice in Medellin, once in Sanchez Llamas). But although I could wish for yet more litigations, I think this is the last one, and it has been (from a legal academic standpoint) a wonderful ride.

The Court’s decision today may be the most important of the four decisions, since it tries to clarify a number of questions about the self-executing treaties and relationship of international judgments and state law, and the President’s power (or lack thereof) to carry out such international judgments. As a whole, Chief Justice Roberts’s decision is clear and (mostly) convincing. And it rightly rejects the more aggressive claims of groups like the ICJ Experts and other international lawyers that filed amicus briefs.

Here are the key holdings, as I see them:

1) Self-Execution

The key portion of the majority’s opinion is its analysis of the key treaty provisions (the Optional Protocol to the Vienna Convention on Consular Relations and Article 94 of the U.N. Charter) to conclude that these treaty provisions are not meant to be self-executing. The line between self-execution and non-self-execution has always bedeviled courts and commentators, but the Court here doesn’t seem deeply troubled. All you have to do is carefully analyze the text of the treaty to determine the intent of the treaty-makers, and perhaps consider some external sources such as the executive’s interpretations of the treaty and other states’ practice under the treaty.

2) The Enforceability of International Court Judgments

The question of whether an international court judgment is enforceable directly in US courts is entirely a question that turns on the particular treaty or statute or executive agreement in question. There is no presumption in favor of enforcing international court judgments. On the other hand, as the Court makes clear, there is no reason that Congress or the treaty-makers could decide to give international court judgments direct enforceability. They just haven’t done so here.

3) The President’s Limited Domestic Foreign Relations Power

Surprisingly, given the general media focus and interest in this case, the President’s attempt to enforce the ICJ judgments through a “Memorandum” does not occupy the Court too much (nor the dissent). The logic is again all about self-execution. If the treaty is not self-executing, then it is not federal law, and therefore it gives the President no further authority. Following Youngstown, therefore, we are at best in category two, where there is no express congressional authority. The President’s general foreign affairs power, recognized by the Court in Dames & Moore and, most recently, in Garamendi, is limited too executive agreements involving civil claims by U.S. citizens against foreign states. (Why this doesn’t also extend to claims by Mexican citizens against U.S. states, or the US in general, is not addressed other than that there is not longstanding practice in such cases).

My General Take:

I am on board for most of the Court’s analysis, which seems fairly sensible and reasonable. It is not overreaching, since it makes clear that there are indeed treaties that are self-executing, and international court judgments that could be self-executing (just not these ones).

The most important part of the Court’s opinion deals with self-execution, since its analysis there is the key the rest of the decision. And I don’t think it creates a “presumption” against self-execution, even against self-executing international court judgments (even though it perhaps ought to). But that is a subject of deep complexity, which I hope others tackle in more depth today.

Where I part from the Court is its rather brief dismissal of its own precedents in Dames & Moore and Garamendi, which I read to recognize that the President could preempt state law claims by virtue of sole executive agreements or a general foreign relations power. This power, it seems to me, seems to fit pretty well here since we have a Presidential attempt to settle a claim by a foreign government by preempting inconsistent state court judgments. But the Court is unimpressed and suggests this would be too different since those cases involved civil claims by U.S. citizens against foreign governments, whereas this involves interference with a state’s police powers.

My instinct has always been that somewhere, somehow, someone in the federal government has the power to vindicate the ICJ judgment led me astray. Absent legislation from Congress, an ICJ judgment is basically meaningless as a matter of domestic law.

There is one legal entity, of course, that has the power to give effect the ICJ judgment as well: the State of Texas. It is interesting that Justice Stevens’ surprising concurrence rested in the end on a plea to Texas to come to its senses and give Medellin a hearing. Good luck! Still, Justice Stevens recognizes that, in effect, we are going to have to rely on state governments to carry out ICJ judgments, absent Congressional action. The States, I’ve argued in prior work, are becoming substantially important foreign policy players. This decision will only enhance this role.

Medellin: An Insta-Symposium

by Julian Ku

Thanks to Marty for his pointer on the decision and his instant analysis (which despite being instant, is also still quite interesting). Throughout the day today and into tomorrow, Opinio Juris will post thoughts and comments on the Medellin decision from leading commentators and scholars, in addition to (of course, our substantial “in-blog” expertise. Stay tuned!

Texas Wins Medellin

by Marty Lederman

Six to three. The decision is here. My very quick and preliminary reaction, after having read only a bit of the opinion, is that the presidential power question is not the most important aspect of the opinion. That would be, instead, the Court’s interpretation of Article 94 of the U.N. Charter as merely imposing a future obligation on the U.S. federal political branches to do something to comply with its requirement — and not to impose any independent obligation on the United States, including Texas, to actually take steps to comply with an ICJ judgment. This strikes me as an implausible interpretation, and as potentially very troubling for construction of treaty obligations going forward.

The article reads that the U.S. “undertakes to comply with with the decision of the [ICJ] in any case to which it is a party.”

The Court reads this obligation not to actually require the United States and its component parts to, uh, actually comply with an ICJ decision. Indeed, it apparently permits Texas (part of the U.S., last time I checked) to intentionally refuse to comply with such a decision.

What will this sort of treaty interpretation portend for, say, article 16 of the CAT, which provides that “each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment”?” Apparently, that no longer means we are forbidden from intentionally inflicting such treatment on detainees — or so the Chief Justice reasons.

The State of Comparative Constitutional Law (with a Note on International Law)

by David Fontana

Thanks to Oona Hathaway and the Guest Commentors on Treaties’ End

by Chris Borgen

One last note regarding the discussion of Treaties’ End

On behalf of all of us at Opinio Juris, I would like to thank Oona Hathaway, David Bowker, Curtis Bradley, David Golove, Marty Lederman, and Catherine Powell for joining us for the discussion of Oona’s article. As is evidenced from the discussion, each of our guests put a great deal of time and effort into analyzing the issues presented by Oona’s thought-provoking article. Speaking personally, I learned a great deal.

We hope you found it interesting, as well, and we look forward to similar online symposia in the coming weeks and months.

My Week on This Blog

by David Fontana

Two Damage Awards, Two Different Bush Administration Positions

by Kevin Jon Heller

Opinio Juris Welcomes David Fontana

by Roger Alford

Treaties’ End

by Oona Hathaway

Let me begin my final post with a heartfelt thank you to Chris Borgen, Opinio Juris, and all the participants in the forum for a remarkable conversation about my article, Treaties’ End.

The conversation has touched on a wide range of issues that deserve much deeper treatment than I can give them here. I will just briefly mention several of the issues that have been raised over the course of the past week. This post is not meant to end the conversation but instead to invite continued debate and discussion.

First, the conversation has raised questions about the meaning of the term “lawmaking” in the context of international law. The subtitle of the article is, “The Past, Present, and Future of International Lawmaking in the United States.” Duncan Hollis asks whether the term is really correctly applied to international treaties. Duncan is right that the use of the term in this context is not standard. As I explain in the article, the terminology is quite deliberate–and part of my effort to reframe the debate. I refer to treaties and congressional-executive agreements “as ‘international lawmaking’ to emphasize the dependence of international law on individual countries’ decisions to commit to it. International law may be negotiated by states in New York or Geneva or Montreal, but it is not made at the negotiating table. It is made by countries when they agree as a matter of law to a binding international commitment. For it is the act of consent by each country that transforms an international agreement from a piece of paper devoid of any legal force into law that binds.”

Second, the conversation has repeatedly touched on issues of federalism. I argue in my article that the Article II Treaty Power does not face the same limits as Congress’s delegated powers under Article I. The Treaty Power is instead subject to limits of its own–a treaty must “have the consent of a foreign nation” and must be genuine, that is the parties must have a mutual interest in the subject matter of the agreement. Curt Bradley raises the debate over Missouri v. Holland, which he has addressed in depth in his scholarly work. He is concerned that lack of federalism constraints on the Treaty Power could lead to an expansion of federal lawmaking authority that lies in tension with democratic legitimacy. Cathy Powell also discusses this issue in the context of the debate over ratification of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). She disagrees with Curt, arguing that “federalism has been frequently used as a red herring in the context of ratification debates over human rights treaties”—and noting that the debate over the CEDAW was no exception. I respond to many of Curt’s points in a separate post and will not repeat that here. As I note there, much of our disagreement stems not as much from our different views of the Treaty Power as from our different views of Congress’s Article I powers, which Curt says do not reach some human rights agreements.

Third, our discussion has raised questions about the political feasibility of my proposal to conclude nearly all international agreements as congressional-executive agreements, thus brining Article II treaties (almost) to an end. Why, Duncan Hollis, Marty Lederman, and David Golove ask in various posts, would the Executive Branch want to “clarify the admittedly obscure landscape involving treaties and CEAs.” Would it really be “easier” to get the support of 51 Senators plus 218 Representatives than to get the support of 67 Senators? Why would the President ever go along with a plan to create stronger international commitments that are more difficult for the President to unilaterally undo? Peter Spiro adds, “it’s not clear that the Senate will go quietly into the Hathaway night.” I have already answered some of these questions. I acknowledge in the article that it would not necessarily be “easier” to gain a majority vote in both houses than a supermajority vote in the Senate (particularly, as I discuss in some depth, in light of the filibuster). Even so, I think the voting structure for congressional-executive agreements is more likely to lead to policies that reflect the preferences of the broader electorate than is the voting process for Article II treaties because it does not hand a veto to such a small and extreme minority. And I urge those considering the feasibility of the plan to keep in mind that presidents not only wish to maintain flexibility for themselves, but they might also want to create real constraints for their successors. That desire might lead presidents to endorse strong international commitments. The Senate, too, may not provide the opposition some expect: It has been surprisingly quiescent in the face of a grand expansion in the use of congressional-executive agreements, even though that expansion has diminished its unique power under the Treaty Clause.

Fourth, the conversation has raised questions about whether congressional-executive agreements or treaties lead to more reliable international commitments. In my article, I claim, contrary to the claims of nearly all the literature to date, that congressional-executive agreements have the potential to create stronger international commitments than do Article II treaties. David Golove and Marty Lederman take issue with this claim, arguing that treaties and congressional-executive agreements create equally strong international commitments. In an earlier post, I responded that even admitting that the two instruments are equal in this regard represents a significant move away from the current consensus that treaties are the stronger of the two. I go one step further, however, and argue that congressional-executive agreements are frequently easier to enforce and can be more difficult to undo than treaties–features than in my view make the congressional-executive agreement a more attractive mechanism for creating strong international commitments.

Fifth, the conversation has turned to the meaning of democratic legitimacy and its relationship to popular sovereignty. In my article, I argue that one reason to favor congressional-executive agreements over treaties is that they have stronger democratic legitimacy. In their first post, David Golove and Marty Lederman, agree with me that democratic legitimacy is a valuable aim and that the CEA is the more democratic alternative. David Bowker, on the other hand, asks what underlies the assumption that democratic legitimacy is a virtue in the context of international agreements. Finally, Julian Ku argues that even more important than democratic legitimacy is the American conception of popular sovereignty: “The touchstone of legitimacy for U.S. public lawmaking . . . is not simply that the most democratic method is used, but whether the method comports with the mechanisms embedded in the U.S. Constitution by acts of ‘popular sovereignty.’” By this criterion, he argues, treaty-making is more legitimate than CEAs because it is the product of popular sovereignty. I take issue with this last point. As I explain in the piece and in a post, achieving the support of a two-thirds majority of the Senate requires playing to the polarized extremes of modern American politics: the supermajority requirement means treaties must gain the support of (and can be vetoed by) senators that are twice as conservative or liberal as the so-called median voter in the Senate. This strikes me as a problem for democracy and for popular legitimacy. In a world where international lawmaking increasingly governs matters of importance to average Americans’ daily lives, the democratic legitimacy of those laws strikes me as just as important as the democratic legitimacy of purely domestic lawmaking.

Sixth, we discussed the role of comparative research in studying the U.S. Constitution. In the article, I use comparative data to show that the U.S. treatymaking process is extremely unusual in international perspective. Chris Borgen asks “to what extent is comparativism useful”? And Duncan Hollis argues that “the diversity of approaches makes it difficult to create a uniform spectrum on one end of which the United States lies.” He, too, asks about the utility of the comparative research in this context. As I note in my own post on the role and value the comparative research to this project, I believe that the comparative research puts the U.S. experience into perspective and offers us a better sense of the range of possibilities. This can be helpful because scholars who have written about the international lawmaking process in the United States frequently assume that the U.S. international lawmaking process is the norm. Seeing our practices in comparative perspective makes it clear that it is not. And it leads us to ask why our way of doing things is so unusual–and if there might not be a better way. To me, that is the value of the comparative perspective for this project.

Seventh, the discussion has raised the role of human rights–and specifically issues of race–in shaping the course of international lawmaking in the United States. In my article, I argue that the Treaty Clause was shaped in part by a desire among many of the Founders to protect a tenuous compromise over slavery and that later resistance to treaties and efforts to prevent the United States from entering international human rights agreements was motivated by fears that the treaties would be used to challenge segregation and Jim Crow. Roger Alford and Cathy Powell both pick up on these points. (I respond directly to their posts in a separate post.) In her latest post, Cathy Powell discusses the use of human rights agreements to challenge racial segregation–adding valuable new detail to the discussion. (Cathy takes issue with my characterization of this fear at one point in the article as “largely imagined.” I meant to refer there to some of the more outlandish claims of the anti-treaty activists. As I explain in the article, I think this fear was very real, even if some of the specific claims were imagined: “[t]he Bricker Amendment was, in short, a thinly veiled effort to prevent the use of international human rights agreements to curtail racial segregation in the United States. It gained the strong support of Southern Democrats, who feared that the Genocide Convention and International Covenant on Civil and Political Rights could be used to justify an anti-lynching bill or to supersede and invalidate segregation laws and other discriminatory state legislation.”)

This final post comes nowhere close to doing full justice to the rich conversation that began last week, but I hope that it provides something of an overview of the key issues that we have discussed and a foundation for continuing debate. Thanks again to everyone who has participated and to Opinio Juris for providing such a great forum for discussion.

And Then There Were 106…

by Kevin Jon Heller

A Belated Welcome to On Day One

by Kevin Jon Heller

The Ghost of Senator Bricker

by Catherine Powell

I too have enjoyed reading the range of responses to Oona’s important article. Here I’ll just reflect on the article’s treatment of the campaign by Senator Bricker in the 1950s to adopt a constitutional amendment to restrict the treaty power.

Several scholars, including Oona, have analyzed how U.S. human rights treaty practice occurs in the shadow of the botched Bricker Amendment campaign (a phenomenon Louis Henkin refers to as living with the “ghost of Senator Bricker”). While the Bricker Amendment failed, the last five decades of human rights treaty practice has, as Oona puts it, “paid fealty to the ‘ghost of Senator Bricker’ by eviscerating agreements with [RUDs] that render them virtually unenforceable.” (p 168) Oona deploys this history (along with evidence that the treaty clause sprung out of a compromise based in part on concerns of slaveholding southern states who insisted on the supermajority requirement) to gather further support for her claim that “the current system of international lawmaking in the United States rests… on rules and patterns of practice developed in response to specific contingent events—events that for the most part have little or no continuing significance.” (p. 107). Reviewing this history, Oona insists that “the reasons that gave rise to current practices have been discredited and rendered obsolete.” After all, Oona suggests the “backlash against the human rights revolution” — represented by the Bricker Amendment campaign – was based on “the largely imagined possibility that human rights treaties would be used to challenge racial segregation.” (p. 140)

I disagree with this characterization. Indeed, civil rights lawyers and activists were using and continue use human rights treaties and the broader framework supporting the idea of human rights to challenge racial segregation – oftentimes in ways that go beyond traditional legal strategies. Going back to the abolition movement, prominent abolitionists such as Frederick Douglass and Harriet Tubman, wrapped themselves in the cloak of human rights (and, of course, some of the earliest human rights treaties prohibited slavery and the slave trade). Then, in the 1920s, Marcus Garvey submitted a set of complaints to the League of Nations, which he called the “Declaration of the Rights of Negro Peoples of the World.” Following the atrocities of the Nazis, in the immediate aftermath of WWII, the NAACP and American Jewish Congress worked hand in hand to get the word “human rights” into the UN Charter, in opposition to Southern Democrats like Texas Senator Tom Connolly, a key member of the U.S. delegation to the San Francisco conference where the Charter was negotiated. With the establishment of the United Nations, in 1947, the NAACP petitioned the world body, soliciting it to condemn race discrimination.

The big challenge to the U.S. came after the Genocide Convention was adopted in 1948. In 1951, several prominent civil rights leaders – including WEB Dubois, Paul Robeson, William Patterson, Mary Church Terrell, among others – submitted a complaint to the U.N. entitled “We Charge Genocide,” which argued that the federal government, by failing to act against lynching in the U.S., was guilty under article II of the Convention. The petition also documented numerous unfair trials and executions of African Americans, as well as large scale voter disenfranchisement through poll taxes and literary tests.

Even the Justice Department embraced an internationalist frame, when, in its amicus brief in the Brown v. Bd of Ed case, it highlighted the hypocrisy of the U.S. role in advocating for rights abroad, when it could not guarantee these rights at home. The Founding Charter of the NOW Legal Defense Fund also recognized that “our own status is inextricably linked to those around the world” (and today, the organization has taken a leadership role in a coalition supporting adoption of a local ordinance in New York City, incorporating CEDAW and CERD).

While civil rights leaders of the 1960s were split on ideology, both Martin Luther King and Malcom X adopted human rights rhetoric and internationalist outlooks. Before his assassination in Memphis — where he was looking for a way to link traditional civil rights and economic justice concerns in his campaign to organize a poor people’s campaign — King proclaimed that “it is necessary to realize that we have moved from the era of civil rights to the era of human rights.” For his part, Malcom X cautioned, “We have to keep in mind at all times that we are … fighting for recognition as human beings. We are fighting for the right to live as free humans in this society. In fact, we are actually fighting for rights that are even greater than civil rights and that is human rights.” At another juncture, Malcom X advised, “Our problem must be internationalized.”

Jack Greenberg tells me that during his pioneering days at the NAACP Legal Defense and Educational Fund (LDF), he included cites to treaties in his prisoners rights briefs – if for no other reason, than to educate judges to inform them of U.S. obligations under international law. Perhaps this is why he and Louis Henkin went on to create a colloquium for law students called Human Rights and Constitutional Rights (a course I now teach at Fordham). Playing an educational role on a broader scale, the Aspen Institute hosts seminars for judges — taught by prominent law professors– which includes a focus on human rights treaty obligations.

Today, many of the major civil rights and civil liberties organizations participate in the human rights treaty body system and have been active participants in the recent set of U.S. compliance hearings before the Human Rights Committee, the Committee Against Torture, and the Committee on the Elimination of Racial Discrimination (CERD). Beyond the NAACP LDF (mentioned above), the Lawyers Committee for Civil Rights recently held a congressional briefing on CERD (following last month’s U.S. compliance hearing on CERD) and the national office of the ACLU has a human rights unit dedicated to integrating human rights work throughout the organization.

Like Oona, I’d like to think the U.S. is in a very different place than it was in the 1950s – the high water mark of the Bricker campaign. There is a broad recognition that discrimination (de facto or otherwise) not only insults the concept of human dignity that is at the very core of the human rights idea, but also hampers the ability of the nation to compete globally. For this reason, congressional-executive agreements (CEAs) represent an exciting possibility for moving beyond the Bricker consensus. As I discussed in an earlier post, in light of how underrepresented people of color are in Congress, especially in the Senate, I’m persuaded by Oona’s argument that moving toward CEAs and away from Article II treaties would enhance democracy and reinforce representation of all the People. At the same time, in saying that “the rules we have today are an artifact of historical circumstances that have little continuing validity,” (p. 175) Oona’s article paints with too broad a brush over the ugly history that motivated Bricker, the ways in which that history has been calcified into current day discrimination and segregation, and the innovative use of human rights by civil rights advocates to circumvent this history. Oona’s article is, of course, already quite ambitious and multi-layered, so I’m not recommending that she try to reflect this history in all its richness and complexity. But, it may be helpful to try to finesse this history a bit more and its implications for the treaty-CEA trade off, as the struggle for equality and human rights in the U.S. always has been and will continue to be uncomfortable for the Senator Brickers of the world and those who nurture his legacy. One useful resource is Carol Anderson’s book, Eyes Off the Prize: The United Nations and the African American Struggle for Human Rights, 1944-1955.

Thanks again, Oona, for a terrific read and to Opinio Juris for hosting this fruitful exchange.

Normative Distinctions vs. Executive Flexibility in Treaty-Making

by Duncan Hollis

The wide-ranging responses to Oona’s work are a testament to its ambition and importance. In the interest of keeping the discussion manageable, I’d like to offer two additional comments on Oona’s piece even though I could easily pursue a half dozen other lines of inquiry.

First, I wanted to comment on the subtitle of the article—“The Past, Present and Future of International Lawmaking in the United States.” I wonder about the use of the term “lawmaking” here. Is it true that when we talk about treaties we’re always talking about lawmaking? As Sir Gerald Fitzmaurice noted 50 years ago, treaties have always had trouble qualifying as a true source of international law since a treaty binds only the parties to it and thus its obligations are not “law” so much as “lawful.” A treaty may form a source of law where it states a general rule of general obligation (i.e., the prohibition on genocide in the Genocide Convention), but just as often a treaty merely creates specific obligations, binding only the parties to it (i.e., a debt-restructuring agreement). Moreover, I think there’s some evidence to suggest that the Framers appreciated these sorts of distinctions even if they’ve had little traction in subsequent U.S. treaty practice. Vattel, who was well known to the Framers, for example distinguished “agreements” and “compacts” from “treaties” based on their dispositional nature—agreements or compacts involve obligations that can be perfected by one or more acts; treaties involve on-going obligations or relationships.

Now, unless you’re an originalist, I’m not sure whether the original meaning of the term “treaty” matters that much to the current debate over pursuing Article II treaties versus congressional executive agreements (CEAs). Moreover, as a descriptive matter, I agree with Oona that the two methods have never been treated as truly equivalent; there have always been certain subjects (e.g., arms control) that have largely followed one path or the other. On the other hand, I wonder if Oona may too quickly dismiss the search for relevant legal differences that explain those cases where both methods have been employed for treaties that otherwise appear to involve the same subject. She cites investment as a prime example with 43 Article II treaties and 77 CEAs. And yet, there is a reasoned explanation for this practice. While most investment CEAs are a byproduct of Congress’ use of its foreign commerce power, the Bilateral Investment Treaties (BITs) that go through the Senate are the direct descendants of FCNs (Friendship, Commerce and Navigation treaties). FCNs often included obligations on friendly relations in addition to provisions on trade or investment. And since the Founding, the Senate has considered such “political relations” treaties as within its purview. Thus, even if these two sets of agreements now fall under a common heading of “investment,” you could distinguish them based on the underlying subjects—trade versus political relations—that led to the choice of one method over the other in the first place. And, if we can do that for one “subject,” is it possible we could do the same for the others? As such, I’d like to see more clarification of whether the subjects that Oona suggests are done as both CEAs and Article II treaties are really the same subject, or could be conceived of along different lines.

Moreover, even if descriptively I’m wrong, the fact that there are a number of distinct ways to distinguish categories of treaties (e.g., lawmaking vs. lawful; dispositional vs. non-dispositional) suggests that Oona’s normative inquiry might want to consider a wider frame. Rather than defaulting straight to CEAs in most instances, why not consider alternative rationales for employing one method over the other? For example, perhaps the more elaborate Article II process (especially including the potential need for implementing legislation) should apply to law-making treaties or, alternatively, to dispositional ones; CEAs could then cover lawful treaties or non-dispositional obligations. Or, perhaps the reverse could be true? I don’t necessarily have a view either way, but it occurs to me that if we’re going to reconceive the status quo division among CEAs and Article II, shouldn’t we consider the normative case(s) for distinguishing the two methods on other grounds as well?

I suspect government officials will cringe at such a suggestion, just as I suspect most do at Oona’s proposition. Which brings me to my second, more pragmatic, point—why would the Executive Branch want to clarify the admittedly obscure landscape involving treaties and CEAs? Oona rightly notes that the Executive Branch has a process—known as the C-175—by which the Department of State decides what domestic method to pursue in entering into a treaty commitment as a matter of international law. She does not, however, explore the likely mindset of Executive officials as they engage in that process. One might imagine, for example, that the primary concern of the Secretary of State (and her lawyers) is simply to ensure that there is domestic legal authority for the United States to bind itself internationally; which authority is employed may be of far less a concern so long as some constitutionally recognized authority exists.

Thus, if Executive Power covers the treaty’s obligations, the inquiry may end there. Certainly, the Executive would be happy to have (and cite) additional authority from either Congress or the Senate, but such authority would in the end be superfluous. For example, I’ve understood the Executive view to be that Status of Forces Agreements (SOFAs) fall under the Commander and Chief power alone, so that when Congress authorizes a SOFA (as it apparently did in one case cited by Oona) or the Senate approves a SOFA (as it did for the NATO SOFA) it’s not clear to me how much weight to give such authorizations. Similarly, if Executive Power is deemed insufficient, the Executive’s primary concern remains simply finding some authority to conclude the treaty, rather than worrying about whether to prefer one method normatively over another. Indeed, the Executive might regard such a normative inquiry as hostile to the very flexibility it now has to rely on whatever authority exists (e.g., pre-existing legislation or a pre-existing treaty) for a new treaty; or to undertake the requisite political calculus of whether to use the Senate or the Congress as a whole if there’s insufficient existing authority.

In terms of any political calculus, Oona assumes that CEAs will be easier to obtain than Senate advice and consent. But is that necessarily true? Even with a supermajority, the transaction costs of getting 67 Senators may be less than getting 51 senators plus 218 Representatives not to mention all the extra House Committees that must examine the agreement, etc. Indeed, just as Oona cites examples of cases where the Senate has rejected a treaty, blocked its approval, or imposed extensive conditions on advice and consent, I can think of counter-examples where the Senate has acted with amazing speed (see the Moscow Treaty or the ILO Convention on the Worst Forms of Child Labor). Now it may be that the totality of the Senate advice and consent experience has proved more cumbersome and forms a greater roadblock to treaty-making than the regular legislative process, but to know that don’t we need to know about cases where the Congress has similarly rejected, blocked or conditioned CEAs? In other words, can we really say CEAs are better than Article II without examining when and how often proposed CEAs are rejected or blocked just as Oona already has for those treaties placed before the Senate? That obviously may be hard to do (especially beyond trade agreements, and even there it’ll be harder now that there’s no more Fast Track authority). But absent some such evidence, can we blame the Executive Branch for wanting to have all these methods at its disposal when it seeks to conclude a treaty?

CEDAW, Federalism, and Democracy in U.S. International Lawmaking

by Catherine Powell

I’d like to join the conversation prompted by several of the posts, particularly Curt’s insights on federalism and human rights. Federalism has been frequently used as a red herring in the context of ratification debates over human rights treaties. Structural labels such as “federalism” have been invoked with some regularity to veil more substantive concerns underlying resistance to human rights treaties. For example, let’s examine the debate over U.S. ratification the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

Gender equality is a national problem that requires national solutions. However, in the 2002 CEDAW ratification debates, structural concerns regarding federalism were advanced to mask substantive resistance to women’s equality. As I’ve explored in greater detail elsewhere, in the ratification debates, treaty opponents cloaked themselves in banners of “constitutionalism” and “federalism” as a way of obscuring the role that culture and cultural stereotypes play in U.S. resistance to women’s human rights. More precisely, by foregrounding federalism, treaty opponents asserted a particular view about localism (and therefore local culture) as a mode for addressing gender inequality, rather than acknowledging that the ongoing disenfranchisement women face has a distinctly national character. (Consider the fact that reproductive rights, Family Medical Leave Act, the Equal Pay Act, and Title VII all involve federal constitutional law and/ or national civil rights legislation, despite objections by “states rights” adherents).

Conservative commentator Phyllis Schlafly expressed what were essentially cultural objections (to what she viewed as CEDAW’s radical approach to family and the role of women in society) by invoking the notions of federalism and limited government. In an article written shortly before the June 2002 CEDAW ratification hearings, Schlafly invoked federalism to assert that CEDAW’s provision concerning family planning “levels a broadside attack on states’ rights.” Schlafly pointedly wrote, “Private relationships should be none of our government’s business, much less the business of the United Nations.” Invoking the principle of limited government, Schlafly also rejected what she viewed as CEDAW’s support for government intervention in the market. She criticized the fact that CEDAW applies to discrimination against women “by any person, organization or enterprise”–a provision that extends the Convention’s protection to private actors, including corporations. Schlafly was also critical of a provision in CEDAW which ostensibly requires equal pay for work of comparable value (a notion reflected in the “comparable worth” doctrine, which some U.S. courts have rejected, though hundreds of companies as well as state and local governments require comparable worth as a matter of course). Relatedly, Schafly complained that CEDAW requires that “subjective” determinations of equal or comparable worth be made (by the government) in lieu of “objective” determinations made (by the market).

As Oona’s article points out, the Commerce Clause authorizes Congress to regulate the private sphere in particular ways (for example, to address gender and other forms of inequality). I share Oona’s broad view of the Commerce Clause. Moreover, so long as the federal government seems able and willing to bail out banks and investment houses, I simply don’t see the constitutional problem with government intervention in the market to address gender inequality. As such, I view the objections to CEDAW as grounded in culture, not constitutionalism.

Indeed, in her testimony before the Senate Foreign Relations Committee, Kathryn Balmforth, a treaty opponent, complained that CEDAW, in requiring equality for women in the workplace, will threaten U.S. culture and values (as she conceived of them), testifying that “These matters, and other matters covered by CEDAW, go to the core of culture, family, and religious belief. . . . The doctrinaire approach of the CEDAW Committee is nothing less than “cultural colonialism,” which attempts to force a radical western agenda which is widely rejected even in the West. It completely ignores the right of women and men, to political, social, and cultural self-determination.” She went on to argue that CEDAW would undermine the traditional role of women as mothers who pass on “culture and values.” These concerns echoed earlier remarks made by Republican Senator Jesse Helms when he chaired of the Senate Foreign Relations Committee and explained his opposition to CEDAW, saying, “[I]t is a bad treaty; it is a terrible treaty negotiated by radical feminists with the intent of enshrining their radical antifamily agenda into international law.” Helms concluded, “This treaty is not about opportunities for women. It is about denigrating motherhood and undermining the family.” As I’ve demonstrated elsewhere, these concerns are misguided and mischaracterize CEDAW (not to mention that these concerns overlook studies demonstrating the positive impact women’s empowerment has on children and families).

Oftentimes, scholars and policymakers assume that cultural and religious objections to women’s human rights are only asserted in by third world governments. In fact, the major rationale behind CEDAW ratification efforts in the U.S. in 2002 was so that the U.S. could sit at the CEDAW table (so to speak) to challenge cultural and religious practices abroad. President George W. Bush spoke of the need to “liberate” the women of Afghanistan in invading that country, and Democratic Senator Barbara Boxer proclaimed that “it is very important to the women of Afghanistan that” the U.S. ratify and “use CEDAW as a diplomatic tool for human rights” there. What is less well-known is how in the United States, cultural claims are sometimes manipulated to advance other interests, including those of male elites, and are, therefore, frequently contested by the very women in whose name these claims are made.

This brings me then to my final point, which is that women are grossly underrepresented in Congress (in roughly equal proportions in the House and Senate). In the 110th Congress, there are currently 365 men and 70 women in the House. In the Senate, there are 84 men and 16 women. (In term, of racial compensation, African Americans and Latinos are more disproportionately underrepresented in the Senate than the House: the House has: 364 white, 40 African American, 23 Latino, and 5 Asian American representatives; the Senate has: 94 white, 40 African American, 3 Latino, and 2 Asian American representatives). Rather than allow CEDAW to be held hostage by a supermajority requirement in the Senate, a congressional-executive agreement, by only requiring a simple majority, would provide women and their allies greater ability to secure passage. (Of course, I recognize that some women, such as Phyllis Schafly, oppose CEDAW, but my hunch is that broader, more inclusive modes of implementing human rights would permit women to accept or reject CEDAW norms based on a fuller understanding of what the Convention offers, rather than allow misplaced cultural objections to defeat the Convention before it even gets out of the Senate Foreign Relations Committee). While I agree with David Bowker’s point that the Treaty Clause was “intended in part to insulate our international commitments from the whims of a popular majority,” the advent of human rights treaties demonstrates a concern for politically disenfranchised groups for whom the supermajority requirement is an almost insurmountable barrier. Moreover, on Julian Ku’s popular sovereignty, a shift away from the supermajority strictures of the Article II treaty route toward the simple majority route may also be a way to reinforce popular sovereignty in a more representative way — that is, in a way that is more attentive to political participation by disenfranchise groups, such a women. I’ll try to come back to this point in a future post on Senate Bricker and the politics of race.

To operationalize Oona’s proposal, consider what might happen if a new Administration introduces CEDAW as a congressional-executive agreement. First, presumably the President could still enter any necessary RUDs. However, in adopting CEDAW as a congressional-executive agreement, Congress could include a sunset clause for periodic review of RUDs and for removal of particular RUDs as they become unnecessary (just as the U.S. reservation on the juvenile death penalty prohibition in the ICCPR became unnecessary with Roper v. Simmons). Second, Congress (with the President) could establish a gender commission that could collect data, monitor implementation, periodically review any RUDs and report to Congress on their continuing necessity, prepare the compliance reports that must be periodically submitted to the treaty body that oversees CEDAW, and provide assistance to state and local governments (along the lines of the assistance the State Department provides to state and local law enforcement to facilitate enforcement the Vienna Consular Convention). It strikes me that none of this is possible if CEDAW is adopted by treaty, unless further implementing legislation is enacted.

An outstanding issue that Oona has not squarely addressed (that may argue for CEDAW to be brought via the treaty route) is the linkage between CEDAW and U.S. v. Morrison. CEDAW’s General Recommendation Number 19 includes gender-based violence in the definition of gender discrimination and the Convention itself requires judicial remedies. In enacting the VAWA civil remedy (struck down in Morrison), I believe Congress failed to adequately document the connection between gender-based violence and the fact that women often flee their homes to escape violence, in ways that impact interstate commerce. In adopting CEDAW as a congressional-executive agreement, Congress could more effectively undertake this fact finding. Alternatively, in ratifying CEDAW as a treaty, enactment of any future civil remedies to challenge gender-based violence could benefit from a Missouri v Holland-type analysis. I’ll be addressing this dilemma further (along with the gender commission concept discussed above) in an upcoming issue brief I’m developing with the American Constitution Society.

Creating Strong International Commitments

by Oona Hathaway

David and Marty have hit on what is probably the most counter-intuitive claim of the article. I argue that congressional-executive agreements create more reliable commitments than Article II treaties, both because they are more likely to be enforced and because they can be more difficult for a single branch of government to unilaterally undo.

First let me note a point of agreement between me and David and Marty. They take issue with my claim that congressional-executive agreements give rise to stronger commitments than do Article II treaties. But they do so by essentially arguing that the two are effectively the same in this regard. Hence they appear to agree with me that the current conventional wisdom is wrong: treaties do not create stronger commitments than do congressional-executive agreements. Our disagreement, then, is simply over whether congressional-executive agreements can be used to create stronger commitments than Article II treaties (as I argue) or whether the two types of agreements instead have similar force (as they seem to argue).

Now let me say a bit more about why I think that congressional-executive agreements can create stronger commitments than can treaties. (I will not repeat everything that I say in the article—for those who want the long version, it can be found in Part III.C. (“More Reliable Commitments”).)

First, let’s consider the issue of enforcement. My focus on enforcement in domestic courts derives in part from my broader work on what I call the “domestic enforcement of international law.” I have written about this in articles on the cost of commitment to international treaties, a study of the promise and limits of international law, in an analysis of Hamdan v. Rumsfeld, and a cross-national empirical study of why states join human rights treaties. The basic underlying premise in each of these pieces is that international law is most effective when it is enforced in domestic courts.

From this general proposition comes the more specific claim that I make in Treaties’ End that our international agreements create stronger commitments when they are enforceable as a matter of U.S. domestic law. With treaties, creating enforceable commitments is often a two-step process. The U.S. constitution specifies that ratified treaties are the “Supreme Law of the Land.” And yet things are more complicated than they might at first seem. Some treaties are not self-executing. For example, many of the United States’s human rights treaty commitments are not self-executing. There are also treaties that are on their face self-executing but that nonetheless require implementing legislation–including, most notably, treaties that require appropriations.

Congressional-executive agreements avoid all these difficulties. They are created by means of legislation. That legislation not only has a status equivalent to federal statutory law (as is true of treaties), it is federal statutory law. Hence congressional-executive agreements offer one-stop shopping.

Second, David and Marty raise questions about withdrawal. I again note that David and Marty do not argue that treaties create more lasting commitments—just that congressional-executive agreements and treaties are essentially the same in terms of their durability. Hence they apparently agree with me that durability is not an argument in favor of Article II treaties.

I go a step further, however. I argue that congressional-executive agreements can be more durable than treaties. David and Marty are right that the difference here is subtle, but it is important nonetheless. The key point is that a treaty commitment rests entirely on the existence of the international agreement. If the President unilaterally withdraws from the treaty, then any direct domestic legal effect of the treaty vanishes. The legal force of the legislation giving rise to a congressional-executive agreement does not rest, however, on the existence of an international agreement. The President may be able to unilaterally undo the international commitment, but the President cannot unilaterally undo the legislation. To the extent the legislation that gives rise to the congressional-executive agreement creates domestic law that operates even in the absence of an international agreement, that law will survive withdrawal from the international agreement by the President. (For example, the legislation might provide that once tariffs are lowered pursuant to a congressional-executive agreement, they may not be raised to their pre-agreement levels in the absence of a new statute—even if the agreement is no longer in effect.)

Finally, David and Marty ask why a President would ever agree to create stronger legal commitments in the ways I’ve suggested. Why would the Executive branch ever “chose to use the mechanism for concluding international agreements that, in [my] view, would most constrain the President’s discretion in future implementation of, and withdrawal from, such agreements?” The answer is simple: a presidential term lasts four years and a President can be re-elected only once. The President might want to create a strong international legal commitment that will withstand his or her successor’s efforts at unilateral withdrawal.

Why would the Senate agree to go along? First, I’ll note that the Senate has been complicit in a long-term trend away from Article II treaties toward congressional-executive agreements. When the NAFTA “side agreement” on the environment was proposed as a congressional-executive agreement, Senator Ted Stevens objected on the grounds that it should have been submitted as an Article II treaty. Not a single other Senator voiced support and the agreement was approved. Second, the Senate has every interest in concluding agreements that require congressional support to be undone. The Senate is currently powerless to prevent the President from unilaterally withdrawing from treaties it has approved (the courts have repeatedly refused to step in to stop the President from unilaterally withdrawing). The Senate has everything to gain from a system that would require the President to return to Congress before undoing the results of an international agreement.

How to Evaluate International Lawmaking: Democratic Legitimacy v. Popular Sovereignty

by Julian Ku

I very much enjoyed reading Professor Hathaway’s very strong contribution to an already strong literature on the relationship between treaties and executive agreements in U.S. law. In my view, the particular strength of the article lies in its empirical analysis of U.S. treaty and executive agreement practice, an analysis that has rarely been done in prior work on the subject.

Indeed, it strikes me that Oona’s article offers new support for the proposal made in John Yoo’s 2001 Michigan Law Review article, which also proposed relying on CEAs for everything that falls within Congress’ Article I powers. Yoo’s justification was on somewhat different grounds, but both Yoo and Hathaway end up in roughly the same place. If there is anything that is outside of Congress’ Article I powers, then Article II treaties can be used to take care of those kinds of agreements. The only difference, as far as I can tell, is that Oona does not think there are likely to be many such Article II treaties. Both Yoo and Hathaway, though, would be content for the vast majority of international agreements to go through the CEA process, but neither is arguing for true “interchangeability” in the sense that CEAs are exactly co-extensive with Article II treaties.

Additionally, the Yoo and Hathaway articles both invoke democratic legitimacy to justify the use of CEAs over Article II treaties. This is a powerful and important rationale for evaluating international lawmaking which is too often ignored by prior scholarship in the foreign relations area.

So far so good. If John Yoo and Oona Hathaway can agree on a proposal, and even that democratic legitimacy is a crucial justification for their proposal, there is decent chance that a consensus is developing somewhere (and who am I to disagree?).

And yet, I am not quite fully on board. It strikes me that, even more than democratic legitimacy, international lawmaking in the United States must also comport with American notions of popular sovereignty. Popular sovereignty, in my view, explains why the formal requirements of the Constitution for public lawmaking (e.g. the presentment requirement) should be adhered too even if they are less efficient or even if they are less democratically legitimate (see, e.g., the Electoral College, the Senate, etc). The touchstone of legitimacy for U.S. public lawmaking, I suggest, is not simply that the most democratic method is used, but whether the method comports with the mechanisms embedded in the U.S. Constitution by acts of “popular sovereignty” (or to use Professor Ackerman’s terminology, higher lawmaking).

By this criterion, treaty-making is more legitimate than CEAs because it is a product of “popular sovereignty” that embedded lawmaking mechanisms into the U.S. government structure. Note that legitimacy is not the same as “the most democratic system.” Rather, the argument is that changing the structure too fundamentally, even for the best of reasons, undermines the basic foundation of the U.S. system of constitutional government.

I think Professors Ackerman and Golove recognized the importance of popular sovereignty in their search for a post-WWII act that would qualify as an act of “higher lawmaking” that would justify CEAs. I’m less sure they found such a qualifying act, but I agree with the necessity of finding one that would justify the dramatic shift away from existing practice that Professor Hathaway is proposing.

Do Congressional-Executive Agreements Establish More Reliable Commitments Than Treaties?

by David Golove and Marty Lederman

As we explained in our first post, we agree with the broad “interchangeability” thesis as a matter of constitutional law, and we are, in general, quite sympathetic to Oona Hathaway’s comprehensive case on behalf of a presumption in favor of the use of congressional-executive agreements (CEAs) rather than treaties . . . principally because of the more robust democratic nature of such statutes. Professor Hathaway, however, argues further that CEAs are preferable to traditional treaties because they “create more reliable international commitments.” Although we think this is occasionally true–in circumstances we described in our prior post–we remain doubtful that the “more reliable commitments” argument is sound as an argument for a more comprehensive abandonment of treaties in favor of CEAs.

Oona’s case for the greater reliability of CEAs rests principally on two claims: (i) that commitments made through CEAs will be easier to enforce (presumably against the Executive branch) in domestic courts; and (ii) that it will be more difficult for the President to withdraw the United States from CEAs. In our view, both prongs of this argument are doubtful.

1. Professor Hathaway first claims (see page 181 of her draft) that “[i]nternational law truly binds only when there is a way to enforce a state’s obligation under international law in domestic courts,” and that CEAs are preferable in this respect because they “allow[] for a one-stage rather than multi-stage process to create [this] enforceable legal commitment.”

For starters, we question the premise of this argument (and we suspect Oona does not really mean to embrace such an unqualified proposition). Even where there is no means of enforcing a treaty or CEA in court, that agreement obviously does, at least in a formal legal sense, “truly bind” the United States: Not only does it impose an international law obligation, but the Supremacy Clause (and, for the President, the Take Care Clause) requires the political branches of the United States (and, where relevant, the States) to comply with the treaty or statutory agreement as a matter of domestic constitutional law. Take, for example, Common Article 3 of the Geneva Conventions. Congress’s recent diminution of judicial review over claims involving Geneva violations, and its dilution of the War Crimes Act (in sections 5 and 6 of the Military Commissions Act, respectively), have significantly (although perhaps not entirely) foreclosed judicial enforcement of Common Article 3 against U.S. government actors. Nevertheless, the United States, and the President, remain obligated, under both international and domestic law, not to engage in cruel treatment and torture with respect to detainees, by virtue of the prohibition in Common Article 3—and notably, no one in either the legislature or even the Bush Administration has suggested otherwise.

Perhaps, however, Oona has in mind a less formal concept of “bindingness.” She implies that the absence of judicial enforcement renders our legal commitments, as a practical matter, of little or no worth in the eyes of other nations. But that would be an overstatement. Indeed, state parties are often quite skeptical of the fairness with which domestic courts resolve international law disputes. In the United States, for example, skepticism about foreign court interpretations of international law trace back to the period of the Napoleonic Wars and the decisions of British Admiralty courts affecting U.S. neutral shipping. The Sabbatino decision rested on just this concern, applying it, self-consciously, even to U.S. courts. In any case, international law has flourished in many countries even without any form of judicial enforcement. Both here and abroad, domestic courts have rarely played a dominant role in enforcing international law obligations. (The sui generis case of the EU is an exception, of course, but an exception made possible, among other things, only because of the shadow cast by the ECJ’s compulsory jurisdiction.) In this nation, as in many others, whether as a result of various kinds of justiciability doctrines or because many international law disputes do not yield plaintiffs willing to bring their disputes to domestic courts, international law is most often enforced by the political branches without involvement by the judiciary. Therefore, although we agree that judicial enforcement is a matter of importance in some contexts, we think it is a mistake to suggest, as a general proposition, that the “truly bind[ing] character of international law” depends on its availability in all cases.

But happily conceding that judicial enforcement will sometimes be important in enhancing the reliability of U.S. treaty commitments, we nevertheless question Oona’s claim that it is easier to provide for such enforcement by using CEAs as opposed to treaties. The whole question of judicial enforcement of treaty obligations in the United States involves complexities and uncertainties that we will not try to resolve here. It is clear, however, that for many, if not most treaty commitments, the President and Senate—depending upon, inter alia, the treaty language, existing statutory provisions, and the context in which a treaty claim is raised (e.g., as the basis for a cause of action or as a defense in a habeas or criminal proceeding)—have constitutional authority, without the involvement of the House, to provide for judicial enforceability. And, indeed, throughout U.S. history courts have frequently enforced treaty commitments even in the absence of legislation.

In the relatively small number of instances where this is not the case, Oona’s claim is potentially more persuasive. As she observes, in the case of a CEA the necessary implementing legislation can be included in the same enactment by which Congress authorizes or approves the agreement itself—thereby necessitating only a one-step, rather than a two-step, process. Of course, that this can be does not mean that it will be done, and recent experience with, for example, human rights treaties, suggests that the problem is not one of institutional misalignment but instead of political will. Even had these agreements been submitted as CEAs, it is doubtful that Congress would have specifically provided for judicial enforcement—as, indeed, it has not, at least as to private enforcement, in the case of NAFTA and the WTO. Be that as it may, however, the important point is that the added burden of the two-step process only exists in some cases and, therefore, cannot be a strong ground for an argument for the presumptive superiority of the CEA over the treaty. The CEA is superior in this respect, at most, in those unusual cases where the President and Senate are constitutionally prevented from providing for judicial enforceability.

2. Professor Hathaway’s second and more central claim is that it is easier to prevent executive withdrawal from CEAs than from treaties. We are not persuaded, however, that there is a meaningful difference in the two models when it comes to restricting withdrawal. Oona concedes, at least arguendo, that the President has unilateral authority to withdraw the United States both from treaties and from congressional-executive agreements, in accord with the terms of the agreements themselves and background rules of international law. She likewise concedes (see note 284) that both the Senate in giving consent to a treaty, and Congress in adopting a joint resolution approving an international agreement, can provide that their consent/approval is conditioned on restricting the President’s withdrawal power, such as by requiring that withdrawal be effected only by congressional resolution presented to the President. So where is the difference?

Oona suggests that the difference might lie, not in how the President can be limited before a withdrawal, but instead in what happens after a withdrawal: she argues that whereas when the President terminates a self-executing treaty, that treaty’s status as domestic law under the Supremacy Clause immediately ceases, legislation implementing a congressional-executive agreement can, by contrast, survive the President’s termination of the agreement.

This theory is intriguing, but ultimately unconvincing. As an historical matter, Congress in fact has not generally enacted the substantive provisions of CEAs into domestic law. More often, its joint resolution merely authorizes the President to conclude a particular agreement, or approves an agreement he has already negotiated. Such authorization itself is no moment, however, once the underlying agreement is undone and, thus, it has virtually no effect in most cases of withdrawal.

More importantly, even legislation implementing a pact will ordinarily be dependent on the ongoing validity of the agreement under international law. In the absence of clear congressional language to the contrary, there is simply no reason to think that the legislation will outlast the international obligation, not because the President has repealed or violated the legislation (something he may not constitutionally do), but because the legislation no longer serves the purpose for which it was enacted: Once the international agreement is denounced, the implementing legislation will become defunct of its own accord. (Notably, this is equally true of legislation implementing a so-called non-self-executing treaty.) Does Oona believe, for example, that the provisions of the NAFTA implementing legislation dealing with dispute resolution panels (or, for that matter, any other portion of the implementing legislation) would survive a presidential termination of the agreement?

It is here that Oona makes her most striking suggestion—that CEA legislation might not only authorize an international agreement, but also commit the United States to abide by the terms of the agreement, as a matter of substantive domestic law, even where the agreement itself is not in effect: that the enactment might “specif[y] a course of action by the United States,” such as protecting particular human rights or observing particular environmental standards” (page 198 & n.291), and that this substantive obligation would not be dependent on the continuing existence of the international agreement.

This does not appear to be an argument in favor of using CEAs, as such—it is, instead, an argument for the enactment of substantive statutes that are equivalent to agreements the President has negotiated, only without the (potential) expiration date. Notably, Congress could enact such a substantive law regardless of whether the parallel agreement is a treaty subject to Senate ratification, or a CEA. But more to the point, we very much doubt that either of the political branches would ever consider such a practice in either case. If they were, however, so motivated, the far more sensible approach would be simply to require, as Oona concedes they may, that the President may terminate an agreement only with a supporting congressional resolution presented to the President.

Finally, even if Congress were to prescribe that its substantive legislation—whether for a treaty or a congressional-executive agreement—shall survive a presidential termination of the underlying agreement, foreign states are not apt to view the continuing validity of the legislation as evidence that the United States is a more reliable treaty partner. The whole point of making treaties, as opposed to engaging in parallel acts of legislation, is to create a binding international law obligation on both parties to enact and retain the relevant legislation. If the President formally withdraws from a treaty commitment, the former treaty partner will view the United States as unreliable, in Oona’s sense, regardless of whether Congress in the meantime continues ex gratia to keep in place legislation that is consistent with the (former) treaty obligations.

3. One final point, about the feasibility of Professor Hathaway’s proposal: Let’s say Oona were right and we are wrong–that CEAs can, in fact, more effectively constrain the Executive branch by (i) providing judicial oversight and enforcement of international obligations and/or (ii) by limiting the circumstances under which the President can withdraw the U.S. from agreements, either formally or in effect. The especially odd thing about such arguments is that Oona is addressing them to the Executive branch. Her article is a plea to the Executive branch that it should, as a matter of practice, choose to use the mechanism for concluding international agreements that, in her view, would most constrain the President’s discretion in future implementation of, and withdrawal from, such agreements. Why is there any reason to think that the Executive branch would embrace such a self-restricting proposal? To the extent the Executive branch does prefer CEAs, the more plausible hypothesis is that it does so because it finds it easier to obtain consent to agreements it has negotiated by going to Congress than by submitting them to the Senate where the minority veto still looms large.

Oona further concedes that the Senate’s cooperation would be necessary to the realization of her proposal. Yet, she seems to underestimate the degree of resistance that is likely to come from that quarter. There is much history, going back to the late 1960s—the National Commitments Resolution, various failed legislative proposals to deal with executive agreements, the Senate’s failure to give consent to the Vienna Treaty on the Law of Treaties, and so on—suggesting that the Senate and the House do not see eye to eye on this problem and that the Senate’s acquiescence in the CEA mechanism therefore has its limits as a practical political matter. However normatively attractive the idea of phasing out the treaty may be, Professor Hathaway has not yet fully explained how that is likely to come about.

The Founders, Democracy, and Missouri v. Holland

by Oona Hathaway

David and Curt both raise interesting points that I’d like to address.

First, David worries that I am too quick to dismiss the Founders’ concerns. I argue in my article that the Founders decided to place responsibility for concluding treaties in the hands of the President and the Senate alone for two central reasons. First, it was expected that the Senate would be directly involved in negotiating treaties and would serve as the President’s “council of advisors” in treaty-making. Second, it was seen as a way to keep the federal government from bargaining away regional interests.

There were, of course, other concerns voiced by various actors during this period, many of which I mention in the piece. (As David notes, there were “doubtless as many additional concerns as there were delegates to the Convention.”) But based on my reading of the Constitutional Convention, state conventions, contemporary historical events, and legal scholarship on the issue, these were the two “central” concerns–and hence the ones that are most important to address.

I agree with David that there were–and are–other concerns that should be considered in deciding whether to continue making agreements through the Article II Treaty Clause or instead through congressional-executive agreements. Much of my article is devoted to discussing these other concerns. I also recognize that my discussion does not exhaust all possible considerations and I welcome a new, robust debate about these issues. On the issue of credible commitments that David raises, I think that congressional-executive agreements lead to more credible commitments for reasons discussed at length in the article. Treaties have an aura of inviolability that is belied by reality. Presidents have unilaterally withdrawn from treaties, even over the strenuous objections of members of Congress (remember the ABM treaty?). And Congress can prevent a treaty’s enforcement by passing an inconsistent statute. A move to congressional-executive agreements thus makes our international commitments no more vulnerable to the four-year presidential election cycle–in fact, I think it can make them less so.

Finally, David asks what underlies the assumption that democratic legitimacy and bureaucratic efficiency are virtues in the context of international agreements. We may just have a difference of opinion on this point. I think that these virtues are especially important in the modern era, when international law and domestic law are increasingly intertwined and overlapping. International law today does not simply deal in matters of diplomatic relations and border disputes–issues one might argue should be insulated from the masses. Modern international law is about everything from education to tax policy to torture. In this era, the exclusion of the House from participation in international lawmaking is increasingly dissonant.

Let me turn now to Curt’s points about Missouri v. Holland–which also connect to issues of democratic legitimacy. Curt’s has written extensively and provocatively on the limits of international law and I’ve learned a lot from his scholarship. As he points out, we agree on some matters (that the holding in Missouri v. Holland does not apply to congressional-executive agreements) and disagree on others (that human rights agreements fall outside Congress’s Article I powers and hence must be concluded as Article II treaties). Much of our disagreement in this context has nothing to do with international law. It turns instead on the reach of Congress’s enumerated powers, which I think is more extensive than does Curt (who is joined in his more restrictive view by John Yoo, who argues this point extensively in his 2001 Michigan Law Review article and whose argument I disagree with in my article).

I also disagree with Curt’s suggestion that it is somehow anti-democratic to conclude that the Article II treaty power is not limited by the same federalism concerns as Congress’s enumerated powers under Article I. As I discuss in Part IV.A. of the article, the Article II Treaty Power and Congress’s enumerated powers are separate and independent powers of the federal government and subject to distinct limits; it is no more reasonable to think that the Treaty Power is limited to the enumerated powers than it is to think that, for example, Congress’s power to provide and maintain a navy is limited to its power to regulate commerce.

Even though the Treaty Power is not limited in the same way as the legislative power of Congress, it is far from unlimited. It is instead subject to limits of its own, consistent with its distinct purpose. Article II treaties, in the words of Thomas Jefferson, “must have the consent of a foreign nation.” They must, moreover, be genuine–that is the parties must have a mutual interest in the subject matter of the agreement. That mutual interest can be manifested in reciprocal or respective commitments by the parties. By contrast, a treaty concluded for the sole purpose of enabling a party to avoid its domestic lawmaking rules would not constitute a genuine agreement. The necessity of a foreign partner willing to enter an agreement of mutual interest serves as both a justification for and a limit on the Treaty Power.

Too Quick to Dismiss the Founders’ Concerns

by David Bowker

It was a privilege to read Oona Hathaway’s Treaties’ End. It’s beautifully written, thought-provoking, and original – a hat-trick in academic writing. I join the other commentators in applauding this great contribution to the scholarship on international lawmaking in the United States.

While I agree with much of Professor Hathaway’s analysis, I came away unpersuaded by the analysis of the Founding events and question whether the historical context can be so easily dismissed as having “little or no continuing significance.” According to Professor Hathaway, the decision to “place responsibility for concluding treaties in the hands of the President and the Senate alone” rested on two “central reasons”: (1) “it was expected that the Senate would be directly involved in negotiating treaties and would serve as the President’s ‘council of advisors’ in treaty-making”; and (2) “it was seen as a way to keep the federal government from bargaining away regional interests.” Professor Hathaway concludes that these rationales “are entirely products of a particular time and set of circumstances that no longer hold.”

Although I don’t profess to be a constitutional historian, it seems this analysis may fall short in at least two respects. First, it oversimplifies the history of the Treaty Clause by failing to consider several important historical factors at the Founding (…understanding that such simplification may be an unavoidable cost of writing a piece with such breadth and depth on comparative and other issues). Second, it underestimates the ongoing significance of such historical concerns.

With regard to the first point, there were various other factors underlying the deal that was struck in the Treaty Clause. For example, some Founders were keen to limit the power of the House, especially in matters of economics and foreign policy, where popular sentiment might regularly lie at odds with the long term interests of the nation, as perceived by the “upper” house and the educated elite. Some Founders were equally determined to limit the ability of the President to enter into alliances and other foreign “entanglements” that might embroil the nation in the intractable feuds and squabbles of the Old World. Conversely, still others were concerned about the problem that the new nation lacked credibility among the colonial superpowers because – as Professor Hathaway recognizes – it seemed “incapable of observing treaty obligations.” There are doubtless as many additional concerns as there were delegates to the Convention.

With regard to the second point, although the times have changed, surely, at least some of these issues remain relevant and important today. Take, for example, the credibility problem. Today, the U.S. is seen as having a credibility gap with regard to international law, due in part to its unwillingness or inability to adhere to its international commitments. To make easier the process of entering into such commitments – or, conversely, to equate the treaty commitment with less formal, less binding executive commitments – may exacerbate the problem by increasing the perception that U.S. commitments rise and fall with the four-year presidential election cycle.

Finally, what underlies the assumptions that “democratic legitimacy” and bureaucratic efficiency are virtues in the context of international agreements? Wasn’t the Treaty Clause intended in part to insulate our international commitments from the whims of a popular majority? (See, e.g., the Geneva Convention debate, today.) And why is bureaucratic efficiency in the formation and proliferation of international commitments a positive development in a nation founded on the notion that foreign entanglements may threaten domestic liberty and undermine sovereignty?

Missouri v. Holland and Treaties’ End

by Curtis Bradley

Even if historical practice does not provide a legitimate basis for restricting the scope of the congressional-executive agreement power, federalism might. Under Missouri v. Holland, neither Article II treaties nor the statutes that implement them are subject to the enumerated power limitations that apply to Congress. While these limitations are relatively modest, especially with respect to activities involving the production of goods (as illustrated by the medical marijuana case, Gonzales v. Raich), they have been enforced in some prominent modern cases, including in United States v. Lopez (disallowing federal regulation of possession of handguns near schools), Boerne v. Flores (disallowing federal regulation of local zoning), and United States v. Morrison (disallowing federal regulation of intrastate violence against women).

One of the strongest arguments for the holding in Missouri v. Holland is that the supermajority senatorial consent process specified in Article II provides enough political process protection for federalism, such that judicial enforcement of federalism is not needed in this context. Defenders of Holland also point to the practice of the Senate in either blocking some treaties thought to be particularly intrusive on federalism, or in attaching federalism-protective reservations, understandings, and declarations to its consent to treaties, as proof that the senatorial consent process does in fact protect state interests. This political process line of argumentation is unavailable, however, for congressional-executive agreements, which follow the same domestic process as is used for statutes. A number of supporters of congressional-executive agreements have therefore concluded that they do not receive the benefit of Missouri v. Holland, and this is also Oona’s conclusion.

Because of this, Oona pulls back from calling for treaties’ end, and only calls for their partial end. She states that, “[i]n contrast with Article II treaties, congressional-executive agreements cannot exceed the bounds placed by the Constitution on congressional authority” and that therefore “[w]ere there an international agreement that required the federal government to exercise powers beyond those granted to Congress, it could (and should) be ratified through the Treaty Clause just as it would be today.” This is a perfectly reasonable concession, but it seems to me that Oona probably underestimates the extent to which this issue will arise, especially in the area of human rights law. To take just one example, is it really clear that Congress could simply enact all of the local family law provisions in the Convention on the Rights of the Child?

Oona also appears to assume that we will know in advance which treaties will exceed Congress’s authority, and that we can channel those (allegedly very rare) treaties into the Article II process and the rest into the congressional-executive agreement process. The bounds of Congress’s Article I authority, however, are notoriously unclear, and much will depend on how particular treaty provisions are interpreted and applied. As a result, her concession might actually provide support for a categorical approach to the issue whereby certain types of agreements likely to raise federalism issues (e.g., human rights agreements) are presumptively channeled to the Senate to foster constitutional avoidance. (Incidentally, I agree with other posts that have expressed the view that this channeling is going to continue anyway since we now have a political equilibrium for human rights agreements that is unlikely to be disturbed by academic grumbling about the irrationality of our constitutional practice.)

It seems to me that a more fundamental objection to Oona’s federalism concession, however, is that there is tension between her democracy-oriented defense of congressional-executive agreements and her support of Missouri v. Holland. She rightly observes that it is more democratic to have a majority of both houses of Congress decide on our international commitments than to give this authority solely to a supermajority of the Senate. Yet, if we should be concerned about democracy with respect to the making of international commitments, shouldn’t we be at least as concerned about democracy with respect to the making of domestic law? Nevertheless, Oona is perfectly comfortable giving a supermajority of the Senate more domestic legislative power than a majority of two houses of Congress, pursuant to Holland. (A non-self-executing treaty will require that the House of Representatives take part in domestic implementation, but Oona does not appear to condition her support of Holland on non-self-execution. In any event, even when the treaty is non-self-executing, the House may feel constrained to enact implementing legislation to avoid a breach of the agreement.) As multilateral treatymaking becomes increasingly pervasive and increasingly overlaps with domestic regulation, this democracy issue will only continue to grow. If we are to have treaties’ end, it may also be time for Holland’s end.

Canada’s Top Court Will Hear Guantanamo Inmate’s Case

by Julian Ku

Happy 50th, Peace Symbol!

by Kevin Jon Heller

McCain on the Jewish Holiday Purim

by Kevin Jon Heller

Recognizing the Complexity in Comparative Analysis of National Treaty Law and Practice

by Duncan Hollis

First off, let me thank Oona Hathaway and our guest bloggers for contributing to what is turning into a highly useful discussion of the relative merits of Article II treaties vs. congressional-executive agreements. Oona’s work is ambitious and provocative, seeking to marshal comparative, historical, and normative arguments in favor of (largely) discontinuing the Article II treaty-making process. Some of the most interesting discussion, no doubt, involves the historical and normative inquiries, but I wanted to say a word about the comparative issue Chris initially raised before we get too far down either of those other roads.

In responding to Chris’s questions about the utility of comparative analysis to her argument, Oona cites her own research to suggest that the United States is an outlier in terms of its Senate advice and consent process. Although I’d agree with her contention that the United States approach is relatively unique, I don’t agree that it follows that the United States must be viewed as operating inconsistently with how some majority of other states approach questions of legislative approval for treaty-making. My own research on the topic suggests that, although virtually all states require some form of legislative approach for some treaties, the diversity of approaches makes it difficult to create a uniform spectrum on one end of which the United States lies.

For starters, Oona suggests that Tajikistan and the United States are “the only countries in the world that provide for less involvement by a part of the legislature in treaty-making than in domestic lawmaking and make the results of this process automatically part of domestic law . . .” (p. 37) But what about Mexico? Under the Mexican Constitution, Mexico’s treaties are concluded by its President with the approval of its Senate alone and, so long as they are not inconsistent with the constitution, operate as the “supreme law of the land.” (see Arts. 89(X) and 133 of the Mexican Constitution). Similarly, Oona suggests that “only five other countries in the world—Algeria, Burundi, Iraq, Philippines, and Poland—require a supermajority vote in their legislature in order for the country to ratify a treaty” (p. 36) But there are other states that do require a supermajority vote, if not for all treaties, than at least for certain ones that implicate core constitutional issues (e.g., Austria, Germany, the Netherlands). States like Austria and Germany, moreover, also alter the respective functions of their legislative bodies for certain types of treaties than the functions they normally apply in considering domestic legislation.

I was also struck by the relative lack of discussion of “commonwealth” states such as the United Kingdom, Canada and India that don’t require legislative approval for treaty formation at all. If one were to try and construct some spectrum of legislative participation, it would seem that these states, not the United States, would have to be the outliers in terms of democratic participation in treaty formation. In truth, however, I think such a spectrum is difficult to create, particularly given that for most states the question is not so much how the legislature approves a treaty, but when it does so. Indeed, the United States is remarkably similar to the majority of states in having a multiplicity of domestic legal processes for forming treaties, only some of which involve the legislature. Some states (e.g., Chile, the Netherlands, South Africa, Switzerland) exempt out certain treaties from legislative approval; many others require approval only for specific categories of treaties (e.g., Egypt, France, Germany, Japan, Russia, Thailand).

Moreover, in focusing on legislative approval of treaties, I fear Oona’s comparative analysis undervalues the non-legislative mechanisms that other states have devised in deciding whether to join a treaty. For example, Switzerland has a relatively robust practice of popular referenda to approve some of its more politically or economically important treaties (as does France, albeit to a much more limited extent). Other states involve their judiciary, requiring a Constitutional Court or its equivalent to opine on a treaty’s constitutionality in advance of that state joining the treaty. Still other states—notably Canada and Germany—have mechanisms that incorporate the opinions of sub-national actors as part of the treaty-formation or implementation process. Thus, if you’re going to use a comparative lens to advocate for a more democratic treaty-making process, I’d think the paper needs to acknowledge the diversity not only among, but within, most states in how they go about joining treaties.

Finally, notwithstanding the value of Oona’s comparative research on its own terms, I wonder about its utility in the current context. It seems strange to me to rely only on foreign constitutions (and/or basic laws) in making a comparative analysis here. After all, if one did that for the United States, the congressional-executive agreement process at the heart of this paper would be left out. Similarly, I’m concerned that painting the United States as an outlier solely based on what foreign constitutions say may miss glosses on those texts by statutes, regulations or state practice. For example, although India’s constitution suggests that treaty-formation will require an act of Parliament (which I suspect is why Oona lists it in Annex C as requring regular legislative approval), in fact, the Parliament never passed the requisite law giving effect to this power. As a result, notwithstanding the constitutional text, in India the Executive continues to make treaties unfettered by any legislative approval requirement. Of course, the actual practice may cut the other way as well–for example, even as states like the United Kingdom say that they need no legislative approval to enter into a treaty, they have a practice of getting legislation if the treaty requires a change or expansion of existing domestic law in order to implement it.

In sum, I welcome Oona’s effort to try and place the U.S approach to treaty-making in a comparative context. At the same time, however, I worry that in its present effort to create hard categories that seek to distinguish how other states operate from the Article II process, the paper may give the false impression that other states lack some of the same multi-faceted features that exist in U.S. treaty law and practice. Of course, this critique doesn’t undercut the value of her overall inquiry, but it does suggest a comparative analysis may not do exactly what her current draft suggests it does.

Human Rights and International Lawmaking

by Oona Hathaway

Cathy and Roger both pick up on the special role that human rights treaties play in the history of international lawmaking in the United States. In my article, I argue that the current bifurcated system of international lawmaking took its shape over the course of the twentieth century. The United States gradually abandoned the mercantilist, protectionist trade policy that it had pursued since the Civil War in favor of a policy built on reciprocal congressional-executive agreements on trade. Meanwhile, opposition to human rights agreements motivated significant opposition to treaties especially in the second half of the century. In particular, in the 1950s, a series of proposed amendments to the Constitution (usually referred to as “the Bricker Amendment”) aimed to prevent the United States from entering international human rights agreements that some feared would be used to challenge segregation and Jim Crow. Roger asks if this concern is still relevant. I think it is in two ways.

First, past practice influences present practice. The controversy over the Bricker Amendment ended in a “compromise” in which the amendment was defeated at the cost of future human rights agreements, which would thereafter be concluded only as Article II treaties that had been rendered almost entirely unenforceable through reservations, understandings, and declarations (RUDs)–that is, if they were ratified at all. That continues to be true even today, both because of the natural force of precedent and because of the specific incorporation of past practice into the Circular 175 Procedure followed by the State Department in deciding which instrument to use for an agreement.

Second, there remain concerns among many of those who resist ratifying international human rights treaties that the treaties will bring about internal changes in the United States. This was the central line of attack on the Convention to Eliminate All Forms of Discrimination Against Women at the hearings before the Senate Foreign Relations Committee as recently as June 13, 2002. Congresswoman Davis, for example, stated that we should not “be eager to have our laws and social structures pronounced upon by an international committee made up in part by representatives of nations with notoriously poor human rights records” while at the same time echoing concerns raised by others that ratifying the treaty might lead to calls to decriminalize prostitution and end Mothers’ Day. Those concerns were voiced in spite of the fact that the RUDs would have almost certainly made direct enforcement of the treaty in U.S. courts impossible.

Roger asks what is stopping the executive and legislative branches from proposing agreements that ordinary would have proceeded as Article II treaties as congressional-executive agreements instead. I think that the reticence is due in part to a misreading of the law (that I am trying to correct in this article) and in part to a commitment to precedent (that I am arguing is misplaced). I expect it is also due in part to concerns about how such agreements might be received by the Senate (which, after all, has to approve congressional-executive agreements as well). But that, too, is surmountable. In the past, the Senate has been open to greater use of congressional-executive agreements even at the expense of its unique role in the Article II treaty process. A committed President and congressional leaders could lead the Senate to take the next step.

Oona Hathaway, Constitutional Actor

by Peter Spiro

I’d like to join Roger in focusing on how the trend away from article II treaties is perfected.

Oona’s “informal reform strategy” suggests that the move to CEA’s (with only a few exceptional areas carved out for continuing article II treatment) can be implemented through presidential submission choices. The strategy is “both legally unproblematic and politically feasible. It is, as a mechanical matter, breathtakingly simple. It would require no changes to existing law or regulations.”

But the current subject-matter divide is arguably of constitutional proportions. That is, the practice may reflect existing constitutional norms. As such, they will be much less readily dislodged than the piece seems to imply.

The arms control context best highlights the possible obstacles here. There has in fact been “overt resistance” to the trend away from article II. The Senate has attached declarations to all major arms control agreements since 1972 expressing its “intent to approve international agreements [relating to arms control] only pursuant to the Treaty Power as set forth in Article II.” President Clinton reversed a decision to submit the 1997 CFE Flank Agreement as a congressional-executive agreement after facing pushback from the Senate. You can bet that anti-internationalists would make an issue out of instrument form if a human rights agremeent or the LOST were submitted as a CEA.

In other words, it’s not clear that the Senate will go quietly into the Hathaway night. It has the weight of longstanding practices behind it, and that will make the reform strategy a longer slog than one might think.

Which is not at all to question Oona’s other arguments here. There may be a constitutional practice relating to choice of form, but that doesn’t mean that it makes any sense. To the extent it doesn’t, there will opportunities to chip further away at treaties’ domain, in a chain of constitutional increments. (A recent bill introduced by Senator Clinton is instructive in this regard: it would permit the conclusion of the Iraq security agreement to take the form of a CEA.)

As part of that process, academic work can make a difference, here especially in the absence of judicial pronouncements. This article will become part of the mix that affects constitutional outcomes. Which way it affects outcomes might not be as clear as at first glance, though. On the one hand, the empirical analysis points to the triumph of CEAs as something of a foregone conclusion (especially to the extent that it succeeds in rebutting the “separate spheres” take on the practice). On the other hand, it may make the guardians of senatorial prerogative all the more vigilant in protecting their institutional powers.

Operationalizing Treaties’ End

by Roger Alford

I very much like Oona Hathaway’s article. I think the most helpful part of your article is how you challenge the commonplace notion that there are obvious substantive differences between Article II treaties and Congressional-Executive Agreements (CEAs). Tables 1 and 2 grouping Article II treaties and CEAs by subject matter are priceless on that score.

I have one quibble and a question. I quibble with your explanation as to why human rights treaties have been challenged with much greater force than trade agreements. You argue that human rights were resisted by Senator Bricker and company because of fears they would bring about internal change. That may have been true a generation ago. But in the post-Civil Rights era, I would think that the concern about human rights treaties is not so much that these agreements would bring about internal change, but rather that they are largely superfluous. There is little political incentive to sign on to treaties that would simply replicate constitutional and statutory guarantees. For example, does CEDAW or the Convention on the Rights of the Child really add that much to existing state and federal law? I doubt it, especially given that any such ratification would be qualified with RUDs. Bilateral and multilateral trade agreements, by contrast, are so popular because they offer tremendous economic benefits that can only be achieved by reciprocal commitments to lower trade barriers.

My question concerns your intriguing proposal for “informal reform strategy” in which existing Article II treaties would be withdrawn and resubmitted to both houses of Congress as CEAs. You make a good point that Article II treaties are captured by extremists on the left and right in ways that CEAs are not. You state that “the supermajority requirement means that treaties must gain the support of senators that are twice as conservative or liberal as the so-called median voter in the Senate.” (p. 175). You further state that “there is nothing preventing the resubmission of the many stalled treaties still before the Senate as congressional-executive agreements, including, for example, the Vienna Convention the Law of Treaties, [CEDAW], or even the U.N. Convention on the Law of the Sea….” (p. 217)

So my question is, what is stopping the executive and legislative branches from adopting this strategy? Is it formalistic or pragmatic? If it is the latter, why not create incentives encouraging both branches to embrace the CEA approach? As you intimate on page 216, it would seem that one could expand fast track authority to all new international agreements. Every time Congress gives the Executive fast track authority, it does so on the understanding that it will be intimately involved in the treaty-making process. That creates benefits to Congress in exchange for the cost of an up-or-down vote without amendments. It also creates huge benefits to the Executive branch, not only in how it negotiates with other countries, but also in knowing that the agreement will be presented to Congress as a CEA without amendments or supermajority voting. Another option would be an Executive “fast track request” for negotiating authority of a specific treaty outside the trade context, in which the Executive branch would seek fast track authority before it ever began negotiations with other countries. You spend precious little time fleshing out your proposal for informal reform, and I would be curious what you think are the obstacles.

A Decent Respect to the Opinions of Mankind

by Catherine Powell

In reading Chris Borgen’s incisive post on Oona Hathaway’s masterfully written article, I was reminded of the American Declaration of Independence. The 1776 Declaration boldly declared, “When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another… a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” At first blush, it may seem counterintuitive that the American Declaration reflected a concern with opinions or practices beyond our borders, at the very moment this small band of patriots was declaring its independence. At the same time, American independence occurred within a context of the new country’s inherent interdependence with the rest of the world – a recognition present even at the Founding. In other words, the only way in which the U.S. could envision itself as “a shining city or a hill,” is if it recognized the “valleys and plains” in its midst. Therefore, as Vicki Jackson perceptively notes, comparativism is a key component toward alternatively appreciating or criticizing American exceptionalism.

This then brings me to a central puzzle Professor Hathaway confronts in her article. Why is it that the international law making in the U.S. has flourished and expanded in certain fields – for example trade – even while it has stagnated in other areas – such as human rights? (Note that this is a separate question from whether ratification of human rights treaties leads to an improved human rights record — a topic Hathaway has addressed elsewhere). Many observers approach the gap between the flourishing of international lawmaking in trade and its stagnation in human rights as a question of substance rather than as a question of process. It turns out, Hathaway tells us, that this gap reflects the fact that the process by which international law is made in the trade area is more likely to be by congressional executive agreement (i.e., NAFTA) while the process by which international law is made in the human rights area is exclusively by treaty (i.e., the Genocide Convention).

Along the lines of Martin Lederman and David Golove in their post, I agree with Hathaway that by including the House of Representatives and dropping the supermajority requirement for the Senate, the process by which congressional executive agreements are made is more democratically legitimate than the treaty process. This is not to say that treaties are democratically illegitimate, but, as I have explored elsewhere, the treaty process has its deficits. At a moment when the public is becoming more directly involved in innovative and exciting ways at an international level (whether in the context of demonstrations at international trade negotiations or more formal participation as nongovernmental observers in United Nations (UN) human rights treaty bodies), by contrast at the national level, the public is, at best, less involved or even aware of treaties, and, at worst, skeptical of the efficacy and legitimacy of international institutions that monitor and support enforcement of treaties. Indeed, in the area of human rights, an important new public opinion poll by Opportunity Agenda demonstrates that while Americans are extremely open to the language and values of human rights, Americans are more reticent about international institutions that monitor and enforce human rights treaties. Perhaps then it’s not surprising that while over a hundred nongovernmental organizations went to Geneva last month to participate in the U.S. compliance hearing before the UN Committee on the Elimination of Racial Discrimination (CERD), Senator Barack Obama did not mention CERD in his groundbreaking speech on race earlier in the week.

In a later post, I’ll return to the role race has played in the development of U.S. treaty practice– an issue on which Hathaway provides important new insights.

Democracy and Treaties

by Oona Hathaway

As David Golove and Marty Lederman note in their post, I argue in my article that one important advantage of congressional-executive agreements over Article II treaties is their stronger democratic legitimacy. I want to say a few more words on the grounds for this claim.

The Treaty Clause provides that agreements are made by the President with the “advice and consent” of two-thirds of the Senate. Congressional-executive agreements, by contrast are made by the President acting in concert with majorities of both houses of Congress. Unlike the process for making congressional-executive agreements, then, the Article II process excludes the House of Representatives. Critics of international law frequently contend that international law is undemocratic, often basing their complaints on this exclusionary process. The assumption behind the complaint is often that the U.S. process is also the international norm. As discussed earlier, the Treaty Clause process is, in fact, extremely unusual: only Tajikistan and the United States have a lower level of legislative involvement in treaty-making than in ordinary legislation and make the results of this process automatically part of domestic law in more than a few confined areas of international law. The fault, then, if there is one, is not that of international law but of the United States’ distinctive method of making that law.

The Founders designed the Treaty Clause as they did not because of a belief that a supermajority vote in the Senate (and exclusion of the House) would somehow be more democratic. The Clause was instead the product of an almost immediately frustrated expectation that the Senate would play a role as a confidential council of advisors to the President in treaty-making, as well as the very distinct historical context in which the Treaty Clause was formed (related to a desire among the southern states to protect their rights to free navigation of the Mississippi).

As I also discuss in the article, the same lawmaking process that sets too low a bar in the House sets an excessively high bar (in my view) in the Senate. The two-thirds rule imposed by Article II is among the highest imposed in the Constitution. There are substantial, and frequently unacknowledged, costs to this exceptionally high requirement. The supermajority requirement imposed by the Treaty Clause means that treaties that enjoy the support of a strong majority of the population and its political representatives may still not be approved.

This is all the more true because the Senate is extremely malapportioned–far more so today than it was even a century ago. Today, senators representing only about eight percent of the country’s population can halt a treaty. Hence achieving the support of a two-thirds majority can require playing to the polarized extremes of modern American politics: If we array the senators in the 109th Congress from most liberal to most conservative according to a widely used measure of ideological position, we see that the sixty-seventh senator was just over twice as conservative as the fifty-first senator. In the reverse dimension, the sixty-seventh senator was also just over twice as liberal as the fifty-first. In other words, the supermajority requirement means treaties must gain the support of (and hence can be vetoed by) senators that are twice as conservative or liberal as the so-called median voter in the Senate.

I acknowledge that there are cases in which a supermajority requirement of this form can be democracy-enhancing, because it requires a broader consensus to develop before action can be taken. Judith Resnik, for example, has persuasively argued that a supermajority is democracy-promoting in the context of the selection of Article III judges. Ratifying a treaty is fundamentally different, however, from approving judges. Most notably, if a particular nominated judge is not approved, another one who can command broader support will almost certainly be nominated in his or her stead. By contrast, if a treaty is rejected, there will be no international agreement (unless, of course, it is concluded by congressional-executive agreement, as I advocate).

Reflections on Treaties’ End

by David Golove and Marty Lederman

In her forthcoming article in the Yale Law Journal, Oona Hathaway argues, not only that congressional-executive agreements (CEAs) are constitutionally permissible alternatives to treaties, but also that such statutes have a richer and broader historical pedigree than is commonly assumed, and that, with minor exceptions, such CEAs are superior along several dimensions to traditional treaties as a mechanism for making international agreements. Hathaway therefore proposes that the political branches should presumptively use the mechanism of statutory approval, rather than treaty advice and consent, in order to effect almost all international agreements. (Treaties would, under Hathaway’s proposal, be used only where Congress lacks any Article I power to enact the substantive laws that the agreement requires.)

We are generally sympathetic with Professor Hathaway’s project, and applaud her important contribution to the ongoing debate over the relative constitutionality and virtues of CEAs and treaties. We are skeptical, however, about some of the crucial arguments Hathaway makes in support of her central claim that CEAs create more reliable U.S. commitments than treaties. We will address those arguments in greater detail in subsequent posts. In this initial post, we will focus on those areas where we agree with Hathaway (at least in part) with respect to the desirability of CEAs.

In Part III of her article, Professor Hathaway identifies several reasons why, in her view, the political branches should in almost all cases presumptively choose to use statutes, rather than the Senate’s treaty-consent mechanism, in order to commit the United States to international agreements. We agree with Hathaway that CEAs offer a superior alternative to the treaty in at least two important respects.

First, as one of us (Golove) developed with Bruce Ackerman at more length some years ago, concluding agreements by use of a CEA is the more democratic alternative. This is true in part due to two simple facts: A CEA requires the assent of the more democratic chamber of Congress, and it conditions approval on bare majorities rather than creating a minority veto. There are, however, not insubstantial counterarguments about the democratic value of supermajoritarian rules such as the requirement of a two-thirds vote of the Senate for treaties. More importantly, the argument from democracy is based on a qualitative assessment of the impact of the Treaty Clause’s two-thirds requirement on the particular political institutions created by the Constitution (as well as the unexpected developments with respect to political parties that emerged after its adoption), and, most importantly, on the long, concrete historical experience the nation has had with the veto that can be wielded by one-third of Senators, representing a very tiny percentage of the nation. Indeed, it was that very history – and the terrible dilemmas that it created – that led to the development of the modern congressional-executive agreement.

The second, and more intriguing though ultimately less important, respect in which the congressional-executive agreement is superior to the treaty – which Professor Hathaway also discusses – is that it eliminates a potentially problematic anomaly created by the constitutionally prescribed Senate advice and consent procedure in some cases. The anomaly is that the institutions that make treaties in the first instance (the President and Senate) are differently constituted than the institutions that might be responsible for implementing them and maintaining adherence to them over time (namely, both houses of Congress and the President). If, for example, a treaty requires new appropriations, or the establishment of a new federal criminal law, the United States cannot fulfill its obligations without the House’s involvement. This disjuncture introduces the potential for one set of institutions (President/Senate) to bind us internationally to obligations that another institution (the House), after the fact, may prefer to avoid. By aligning the institutions that decide to make an agreement in the first instance with those that must implement and maintain adherence to them over time, the CEA option avoids potential structural pressures that may lead to defaults on international treaty obligations, thereby making them more reliable in the sense that Professor Hathaway stresses: a House of Representatives that agrees to authorize or approve such an agreement will more than likely also agree to take the steps necessary to ensure compliance with it. Indeed, as Professor Hathaway notes, it is possible, and desirable, for the Congress to take both steps simultaneously, i.e., for a single enactment to both approve the compact and to provide for its implementation (e.g., by making appropriations). This sort of “one-stop shopping,” in Hathaway’s words, ensures our negotiating partners that the agreement we are about to make will (almost surely) not be undercut by subsequent House recalcitrance.

Nevertheless, this problem, and the advantage of using CEAs in order to avoid it, is much less significant than it appears at first, for at least two reasons. First, the President and Senate early on recognized that the problem could be solved, even with respect to treaties, simply by seeking the adoption of implementing legislation in advance of ratification, or by making U.S. obligations under a ratified treaty contingent on the adoption of the necessary legislation. That practice simply makes the misalignment disappear. This “solution,” however, is not ideal, because it exacerbates the democracy problem: It becomes necessary not only to obtain two-thirds consent in the Senate, which gives a relatively small minority an effective veto over treaties, but also to obtain the consent of a majority of the House. That seems in strong tension with the constitutional design, and, more importantly, it ratchets up the difficulty of making treaties an extra notch, a development that even more dramatically tips the playing field against effective treaty-making.

More significantly, however, the problem does not have to arise at all with respect to most international agreements, because the participation of the House of Representatives is simply unnecessary from a constitutional point of view in most instances. It is true, of course, that there are some areas in which the Constitution requires House involvement, such as where agreements compel appropriations or the enactment of criminal laws. But those areas are very limited, and thus the concern Professor Hathaway raises is relatively less significant. It is true that the House has historically sought to claim a required role over more territory, including treaty provisions concerning tariffs, but most leading authorities have not recognized that claim as constitutionally viable. In any case, moreover, to the extent that the House has been able to insist on that claim as a political matter in certain narrow areas, such as with respect to trade agreements, the CEA has, in fact, tended to supersede the treaty form in practice. That makes sense, but it does not amount to a general reason for abandoning the treaty form in other areas in which there is no constitutional obligation to involve the House.

* * * *

In her article, Professor Hathaway focuses primarily on two other ways in which CEAs are said to establish more reliable commitments than treaties: (i) that they can provide for judicial enforcement; and (ii) that they can limit the circumstances of unilateral executive withdrawal. We are much more skeptical of these claims, principally because it is not clear that such commitments cannot be just as easily made in the context of treaties. We will address those arguments in our next post.

Kosovo Independence is a “Defeat for International Law”

by Julian Ku

The Value of Comparative Research

by Oona Hathaway

Chris makes several excellent points about the value of comparative research. I think it is worth mentioning that I came to this topic from the comparative perspective rather than the other way around. I have for four years now been working on a project in which I am examining the international and domestic lawmaking processes of the 186 countries that have a constitution (or basic laws that essentially operate as one). When I examined the initial data this past summer, I was surprised to see that the United States was such an outlier. This struck me as an interesting puzzle: Why and how did the United States come to have such an unusual international lawmaking process?

The comparative research thus puts the U.S. experience into perspective and offers us a better sense of the range of possibilities. This can be helpful because scholars who have written about the international lawmaking process in the United States frequently assume that the U.S. international lawmaking process is the norm. Seeing our practices in comparative perspective makes it clear that it is not.

I do not mean to suggest that doing things differently from the rest of the world is in itself wrong or unwise. As I put it in the article, “[t]hat the process for making treaties in the United States is extremely unusual does not mean, of course, that it is necessarily wrong or misguided.” But it does lead us to ask why our way of doing things is so unusual–and if there might not be a better way. To me, that is the value of the comparative perspective for this project.

Comparativism and Constitutional Structure

by Chris Borgen

I again want to thank Oona Hathaway for joining us in this discussion of her article Treaties’ End. As I mentioned in my opening post, her article is both rich in historical detail and deploys impressive empirical research. I will turn to the historical argument in a later post, for now I want to focus on an aspect of her article that I found especially interesting: her use of empirical research into how other states make treaties.

The results of Oona’s comparative research leads to some striking observations:

Only five other countries (Algeria, Burundi, Iraq, the Philippines, and Poland) require a legislative supermajority to ratify a treaty (p.136)

Only twenty-three states (including the U.S.) have different voting requirements for treaties than for domestic legislation (p.137)

The United States is one of only four countries (along with Ethiopia, the Philippines, and Tajikistan) that has less involvement by the legislature in treatymaking than in law making (p. 138)

Only Tajikistan and the United States have a lower level of legislative involvement for treatymaking than for legislation and “make the results of this process automatically part of domestic law in more than a few confined areas of law.” (p.138)

These results are quite persuasive that what the U.S. does is somehow different. But is what the U.S. is doing somehow wrong or unwise? My question, in sum, is what role should comparative analysis play in decisionmaking over whether or not to (continue the) shift from using Article II treaties to congressional-executive agreements? I don’t mean this question as a rehash of the debate over the use of foreign sources in statutory or Constitutional interpretation because what Oona is proposing is not a matter of interpretation, per se, but rather an argument about the function of types of Consitutional decisionmaking, that is, that agreements are a better policy option (more democratic, more effective, etc.) than the Article II treaty option.

But, to what extent is comparativism useful in this? As Oona persuasively argues, the current U.S. practice concerning the use of agreements versus treaties is idiosyncratic and based on the twists and turns of our Constitutional history. But couldn’t the same be said for any of these other examples? Treatymaking in each country is tied to its own history, its own idiosyncrasies. Aren’t how we make laws particularly immune to comparative approaches as they the result of a domestic bargain?(As opposed to, say, using comparativism to define what is a prevailing interpretation of “cruel and unusual punishment”)

So, even if the U.S. is a statistical outlier in how it makes treaties, should this matter?

Treaties’ End

by Oona Hathaway

The process for making binding international agreements in the United States proceeds along two separate but parallel tracks. The Treaty Clause—which requires a two-thirds vote in the Senate and bypasses the House of Representatives—is the better known of the two; it is principally used to conclude agreements on human rights, taxation, environment, arms control, and extradition. But an increasingly common path is the congressional-executive agreement, now used in virtually every area of international law. Each year, hundreds of congressional-executive agreements on a wide range of international legal topics are enacted by simple majorities in the House and Senate and signed into law by the President outside the traditional Treaty Clause process. (Executive agreements entered into by the President alone—often called sole executive agreements—are also on the rise and involve no formal congressional involvement at all. As Chris Borgen noted in his post, I discussed the proper scope of sole executive agreements in my recent testimony before Congress on the proposed agreement with Iraq on February 8 and March 4.)

In an article forthcoming in the Yale Law Journal, I argue that the days of two-track international lawmaking should come to an end: Nearly every international agreement that is currently made through the Treaty Clause can and should be approved by both houses of Congress as a congressional-executive agreement instead.

My case rests on empirical, cross-national comparative, historical, and policy analyses of the two separate tracks of U.S. international lawmaking. I begin with a broad empirical assessment of the international lawmaking practice of the United States during the last two decades of the twentieth century. I find that there is no overarching logic that explains why some international agreements are concluded through treaties and others through congressional executive agreements. Instead, international lawmaking is haphazardly carved up between the two tracks, with some areas assigned to the Treaty Clause route, others to the congressional-executive agreement route, and many uncomfortably straddling the two.

Using new comparative data I have collected, I also show that the United States is one of only six countries that require a supermajority vote in the legislature in order to ratify a treaty. Even more striking, only one other country—Tajikistan—provides for less involvement by a part of the legislature in treaty-making than in domestic lawmaking and makes the results of that process automatically a part of domestic law.

To explain how the United States came to have such a haphazard and unusual system for making international law, I trace the history of the two tracks of international lawmaking back to the Founding. The current system rests on rules and patterns of practice developed in response to specific contingent events—events that for the most part have little or no continuing significance. Rather than guided by clear legal principles, our current bifurcated system is the result of political and historical factors that, in the main, would have little continuing relevance were they not embodied in present practice.

Not only are the reasons for continuing to rely on the Treaty Clause no longer relevant, but the Treaty Clause process is also demonstrably inferior as a matter of U.S. public policy to congressional-executive agreements on nearly all crucial dimensions: ease of use, democratic legitimacy, and strength of the international legal commitments that are created. Thus, I conclude by presenting a vision for the future of international lawmaking in the United States that charts a course toward ending the Treaty Clause for all but a handful of international agreements. By gradually replacing most Article II treaties with congressional-executive agreements, policymakers can make America’s domestic engagement with international law more sensible, more effective, and more democratic.

Opinio Juris Discussion: Oona Hathaway, “Treaties’ End”

by Chris Borgen

The last couple of months have been very good for the study of foreign relations law. First, there was Marty Lederman’s (Georgetown) and David Barron’s (Harvard) two part article on the President’s Commander-in-Chief power when used in opposition to Congressional limitations. Now, we have Yale Law Professor Oona Hathaway’s analysis of the Constitution’s Treaty Clause and the modern practice of treatymaking. Entitled Treaties’ End: The Past, Present, and Future of International Lawmaking in the United States (you can download it from here), this is significant scholarship bringing together Constitutional history, comparative law, legal theory, and empirical research. We at Opinio Juris are very happy to host a discussion on this article starting tomorrow.

The implications of how we in the U.S. may constitutionally enter into international agreements has affected issues ranging from the adoption of the UN Charter, the establishment of the World Bank and IMF, and (as analyzed by Bruce Ackerman and David Golove) NAFTA. Ackerman and Hathaway recently co-authored an op-ed concerning the treaty power and President Bush’s attempt to make ongoing security commitments to Iraq via a “Status of Forces Agreement” (or SoFA) that would not face any kind of vote or advice and consent from Congress. Hathaway subsequently testified before Congress on this issue. Her print submission for her February 8 testimony before the House Committee on Foreign Affairs is available here; a video of her testimony is here.

We look forward to a discussion among Hathaway, the regular Opinio Juris bloggers, and guest-commentors, including David Golove (NYU), Catherine Powell (Fordham), and David Bowker (WilmerHale), that will cover not only her article, but related issues such as the proposed Iraq SoFA. And, as always, we encourage comments from our readers.

Oral Argument in Heller and the English Roots of the Second Amendment

by Roger Alford

Medellin . . . Still Waiting

by Duncan Hollis

Comparative Death Rates and the Second Amendment

by Roger Alford

Government Tyranny and the Second Amendment

by Roger Alford

South Africa’s Conditional Universal Jurisdiction — and Its Potential Effect on Zimbabwe

by Kevin Jon Heller

International Law and The Second Amendment

by Roger Alford

What the Demise of Elliott Spitzer Reveals

by Paul Dubinsky

[Paul Dubinsky is a law professor at Wayne State University Law School].

For years we have been told that the problem with our politics lies in our public servants. They go off to Washington and forget who put them there. They arrive at the state house and quickly regard themselves as above the law. Decency’s address, we are told, is Main Street. Corruption’s address is Pennsylvania Avenue. So, in this election cycle, as in each one since Watergate, the people yearn for a plain-talking figure from outside the system. We want someone free of personal vice, someone who transcends daily politics and attack ads, someone who personifies the values we want to teach our children.

It is a seductive vision of national salvation. We just need to find a hero on a white horse to set things straight. It is also a dangerous half truth. Yes, part of the problem of American politics today is the venality of some of our public servants, but another part of the problem rarely discussed is that the American people possess something of a mean streak. For all our occasional generosity and capacity for compassion, we enjoy watching other people’s public distress. Each time a public figure gets hauled in front of the cameras to become the object of ridicule, it is really the underbelly of American life that is on display. We see the part of the national character that treats almost anything as sport, the part that takes comfort in seeing anyone wealthier, smarter, or more successful brought low. There has always been a place in American politics for the simple morality play, for tarring and feathering the genuine do-gooder who also happens to be flawed.

What is so bad about an occasional morality play? Is there a danger to the Republic in the gleeful media blitz and Internet traffic regarding Eliot Spitzer and other sex scandals? Yes, there is. It is not just that a Monica Lewinsky affair totally consumes the time and energies of Congress. It is not merely that every time a public official is exposed and brought down, a thousand young people decide to head for careers in the entertainment industry rather than government. It is also that each public lynching propagates two pernicious untruths: (1) that it is realistic to expect to find talented public servants who possess no embarrassing personal weaknesses; and (2) that all vices are somehow equal, that lying to one’s spouse is as bad in a public servant as lying under oath.

The latter untruth is probably the bigger worry. People point to Eliot Spitzer and say that his hypocrisy shows that government officials are the problem and that our government needs to be as small and weak as possible. But the issue is not whether Mr. Spitzer or any elected official falls short of the ideal. Everyone does. Our views about government cannot be overly shaped by disappointment in some of the people who hold office. The issue is what sorts of flaws render a person truly unfit for public office. That is the national conversation that is long overdue. Is a person unfit for leadership because he has solicited sex in an airport restroom? Or is he unfit because, through misrepresentation, he led the country into a costly war? Can we accept senior Justice Department officials lawyers who tell the President what he or she wants to hear? Is having sex with a prostitute more disqualifying than condoning torture or refusing to level with the American people about global warming?

Bush on the “Romance” of Fighting in Afghanistan

by Kevin Jon Heller

Defining “Wrongful Retention” Under the HCCAICA

by Roger Alford

Why the ICC Should Not Step Aside — At Least Not Yet

by Kevin Jon Heller

Geeks Try to Fix the U.N.

by Julian Ku

Trying to Buck Up British Citizenship: Lord Goldsmith Reports

by Peter Spiro

O What a Rogue and Peasant State Am I!

by Roger Alford

Uganda Will Defy ICC: LRA Rebels Will Not Be Turned Over

by Julian Ku

Canada’s Charter of Rights and Freedoms Does Not Follow the Flag

by Julian Ku

Second Muslim Elected to Congress

by Kevin Jon Heller

“Your Jihad is Important to Us”

by Peggy McGuinness

Economic Torture

by Roger Alford

Dershowitz and the “Ticking Time-Bomb” Fantasy

by Kevin Jon Heller

The Relationship Between the VCCR and Miranda

by Roger Alford

Pentagon: No Ties Between Saddam and Al Qaeda (Updated)

by Kevin Jon Heller

Glamour Philanthropy

by Roger Alford

Doomsday Seed Vault Opens

by Kevin Jon Heller

Alien Slaves and Forum Non Conveniens

by Roger Alford

BLF Strikes Again!

by Kevin Jon Heller

Defining Natural-Born Citizen

by Roger Alford

U.S. Foreign Policy Toward Rogue States

by Roger Alford

Those Unilateralist Anti-Internationalist Democrats

by Julian Ku

Ristroph on Posner & Vermuele

by Kevin Jon Heller

Vladeck on Munaf

by Kevin Jon Heller

Colombia’s Incursion into Ecuador and Anticipatory Self-Defense

by Chris Borgen

The ICC v. Peace in Uganda

by Julian Ku

Venezuela Mobilizes Troops on Colombian Border

by Julian Ku

Cuba Signs ICCPR and ICESCR — With Reservations

by Kevin Jon Heller

Prince Harry and Jimmy McCain

by Roger Alford

Iraqi Court Reverses US Citizen’s Conviction

by Kevin Jon Heller

“How to Start Your Own Country in Four Easy Steps”

by Chris Borgen

Chemical Ali to Hang

by Kevin Jon Heller

Serbia Threatens to Seek ICJ Opinion on Kosovo

by Julian Ku