Treaties’ End

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.