Operationalizing Treaties’ End
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concerns your intriguing proposal for “informal reform strategy” in which existing Article II treaties would be withdrawn and resubmitted to both houses of Congress as CEAs.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.