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.

http://opiniojuris.org/2008/03/19/treaties-end/

4 Responses

  1. Oona: Your article looks really interesting and I look forward to reading it in greater depth. Congratulations!! I had a quick question regarding your normative recommendation about doing away with much of the treaty power. I presume that when presidents decide to use the treaty route rather than the congressional executive agreement route they are making some kind of calculated judgment that the treaty route serves some functional/institutional goal better than the congressional executive route. In other words, if congressional executive agreements are superior to treaties on all the dimensions as you suggest (including ease and legitimacy), why would a president ever resort to the treaty route? In John Setear’s article, which you discuss, he claims that there is some tradeoff for a president willing to send a durable signal (treaties) versus a signal of viable legislative implementation (congressional executive agreement). In other words, because the treaty route involves only senators and the president, and senators come up for elections every six years, there is a greater chance that a president will choose a treaty route when he wants to signal durable commitments to foreign states. I know you might not agree with John’s argument, but one then wonders why presidents bother at all going down the treaty route if it does not provide them any benefits. At bottom, absent any concrete evidence that a president is likely to choose a certain pathway for undesirable/illegitimate reasons, why restrict his options at all? All else equal, isn’t more institutional discretion better for political branch actors than less?

    –Jide

  2. Thanks, Jide, for joining the conversation. You make several important points. You ask why the President would ever resort to the treaty route. I think that there are many reasons, the most important of which is precedent or historical practice. That’s why I spend a good deal of the article looking to the history of U.S. international lawmaking to try to understand why the patterns we have today first developed. I also aim to disprove the claim that the President might choose treaties because they create more durable commitments. In fact, I argue, congressional-executive agreements are likely to be more enforceable and more durable than Article II treaties (for more on these points, which I realize are counter-intuitive, take a look at Part III.C. in the article). The fact that congressional-executive agreements create more reliable commitments is just one of several reasons that I offer to explain why congressional-executive agreements are a better means for international lawmaking than Article II treaties (a point I’ll say more about in a later post).

  3. Prof. Hathaway,

    Thanks for discussing your interesting article on this blog. I’ll need more time to fully digest your article, but wanted to make one initial observation.

    You discuss “investment” as a subject of significant numbers of both Article I congressional-executive agreements and Article II treaties. But the examples you give suggest the possibility that different types of agreements concerning investment are subject to the different constitutional processes (e.g., “investment incentives” and “investment guarantees” under Article I, more general “investment agreements” under Article II). Your point about interchangeability might be strengthened by considering Chapter 11 of NAFTA (and similar provisions in most other U.S. free trade agreements). Because of Chapter 11, NAFTA might be seen as a congressional-executive agreement in both trade and investment. And the investment provisions of Chapter 11 are notably similar to those provisions typically found in “bilateral investment treaties” approved under Article II — e.g., compensation for expropriation, national treatment, and investor-state arbitration.

    Based on your research, is this unique in US constitutional practice? In other words, are there other examples where the US typically enters one type of international commitment under Article II, but typically enters substantially the same type of international commitment under Article I when entered in combination with other commitments?

    Thanks again.

    –Perry.

  4. That’s a really interesting point, Perry. It is certainly true that one agreement might be readily classified under several different categories (your example, NAFTA, is a great one). For this article, I largely worked off of the classifications given by the Senate (for treaties) and Oceana (for congressional-executive agreements)–both of which assign one issue area to each agreement (for NAFTA, it is trade). NAFTA’s side agreement on the environment is another example of the phenomenon you mention. The side agreement is the only environmental agreement I could find that was entered as a congressional-executive agreement rather than as a Article II treaty. As trade agreements increasingly address issues beyond the narrow bounds of a traditional trade agreement–either as part of the original agreement or in a subsequent side agreement–I would expect congressional-executive agreements to be used even more frequently for agreements that might otherwise be made under Article II. (As a side note, this is also happening with sole executive agreements. In the case of the Iraq agreement on which I testified, the administration is planning to conclude a status of forces agreement (ordinarily done as a sole executive agreement) and add an “authority to fight” (which ought to be done as a congressional-executive agreement or Article II treaty). In my view, this is inappropriate because congressional authorization is necessary for an agreement that includes an “authority to fight.”)

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