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

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.