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.

http://opiniojuris.org/2008/03/21/creating-strong-international-commitments/

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