Normative Distinctions vs. Executive Flexibility in Treaty-Making

by Duncan Hollis

The wide-ranging responses to Oona’s work are a testament to its ambition and importance. In the interest of keeping the discussion manageable, I’d like to offer two additional comments on Oona’s piece even though I could easily pursue a half dozen other lines of inquiry.

First, I wanted to comment on the subtitle of the article—“The Past, Present and Future of International Lawmaking in the United States.” I wonder about the use of the term “lawmaking” here. Is it true that when we talk about treaties we’re always talking about lawmaking? As Sir Gerald Fitzmaurice noted 50 years ago, treaties have always had trouble qualifying as a true source of international law since a treaty binds only the parties to it and thus its obligations are not “law” so much as “lawful.” A treaty may form a source of law where it states a general rule of general obligation (i.e., the prohibition on genocide in the Genocide Convention), but just as often a treaty merely creates specific obligations, binding only the parties to it (i.e., a debt-restructuring agreement). Moreover, I think there’s some evidence to suggest that the Framers appreciated these sorts of distinctions even if they’ve had little traction in subsequent U.S. treaty practice. Vattel, who was well known to the Framers, for example distinguished “agreements” and “compacts” from “treaties” based on their dispositional nature—agreements or compacts involve obligations that can be perfected by one or more acts; treaties involve on-going obligations or relationships.

Now, unless you’re an originalist, I’m not sure whether the original meaning of the term “treaty” matters that much to the current debate over pursuing Article II treaties versus congressional executive agreements (CEAs). Moreover, as a descriptive matter, I agree with Oona that the two methods have never been treated as truly equivalent; there have always been certain subjects (e.g., arms control) that have largely followed one path or the other. On the other hand, I wonder if Oona may too quickly dismiss the search for relevant legal differences that explain those cases where both methods have been employed for treaties that otherwise appear to involve the same subject. She cites investment as a prime example with 43 Article II treaties and 77 CEAs. And yet, there is a reasoned explanation for this practice. While most investment CEAs are a byproduct of Congress’ use of its foreign commerce power, the Bilateral Investment Treaties (BITs) that go through the Senate are the direct descendants of FCNs (Friendship, Commerce and Navigation treaties). FCNs often included obligations on friendly relations in addition to provisions on trade or investment. And since the Founding, the Senate has considered such “political relations” treaties as within its purview. Thus, even if these two sets of agreements now fall under a common heading of “investment,” you could distinguish them based on the underlying subjects—trade versus political relations—that led to the choice of one method over the other in the first place. And, if we can do that for one “subject,” is it possible we could do the same for the others? As such, I’d like to see more clarification of whether the subjects that Oona suggests are done as both CEAs and Article II treaties are really the same subject, or could be conceived of along different lines.

Moreover, even if descriptively I’m wrong, the fact that there are a number of distinct ways to distinguish categories of treaties (e.g., lawmaking vs. lawful; dispositional vs. non-dispositional) suggests that Oona’s normative inquiry might want to consider a wider frame. Rather than defaulting straight to CEAs in most instances, why not consider alternative rationales for employing one method over the other? For example, perhaps the more elaborate Article II process (especially including the potential need for implementing legislation) should apply to law-making treaties or, alternatively, to dispositional ones; CEAs could then cover lawful treaties or non-dispositional obligations. Or, perhaps the reverse could be true? I don’t necessarily have a view either way, but it occurs to me that if we’re going to reconceive the status quo division among CEAs and Article II, shouldn’t we consider the normative case(s) for distinguishing the two methods on other grounds as well?

I suspect government officials will cringe at such a suggestion, just as I suspect most do at Oona’s proposition. Which brings me to my second, more pragmatic, point—why would the Executive Branch want to clarify the admittedly obscure landscape involving treaties and CEAs? Oona rightly notes that the Executive Branch has a process—known as the C-175—by which the Department of State decides what domestic method to pursue in entering into a treaty commitment as a matter of international law. She does not, however, explore the likely mindset of Executive officials as they engage in that process. One might imagine, for example, that the primary concern of the Secretary of State (and her lawyers) is simply to ensure that there is domestic legal authority for the United States to bind itself internationally; which authority is employed may be of far less a concern so long as some constitutionally recognized authority exists.

Thus, if Executive Power covers the treaty’s obligations, the inquiry may end there. Certainly, the Executive would be happy to have (and cite) additional authority from either Congress or the Senate, but such authority would in the end be superfluous. For example, I’ve understood the Executive view to be that Status of Forces Agreements (SOFAs) fall under the Commander and Chief power alone, so that when Congress authorizes a SOFA (as it apparently did in one case cited by Oona) or the Senate approves a SOFA (as it did for the NATO SOFA) it’s not clear to me how much weight to give such authorizations. Similarly, if Executive Power is deemed insufficient, the Executive’s primary concern remains simply finding some authority to conclude the treaty, rather than worrying about whether to prefer one method normatively over another. Indeed, the Executive might regard such a normative inquiry as hostile to the very flexibility it now has to rely on whatever authority exists (e.g., pre-existing legislation or a pre-existing treaty) for a new treaty; or to undertake the requisite political calculus of whether to use the Senate or the Congress as a whole if there’s insufficient existing authority.

In terms of any political calculus, Oona assumes that CEAs will be easier to obtain than Senate advice and consent. But is that necessarily true? Even with a supermajority, the transaction costs of getting 67 Senators may be less than getting 51 senators plus 218 Representatives not to mention all the extra House Committees that must examine the agreement, etc. Indeed, just as Oona cites examples of cases where the Senate has rejected a treaty, blocked its approval, or imposed extensive conditions on advice and consent, I can think of counter-examples where the Senate has acted with amazing speed (see the Moscow Treaty or the ILO Convention on the Worst Forms of Child Labor). Now it may be that the totality of the Senate advice and consent experience has proved more cumbersome and forms a greater roadblock to treaty-making than the regular legislative process, but to know that don’t we need to know about cases where the Congress has similarly rejected, blocked or conditioned CEAs? In other words, can we really say CEAs are better than Article II without examining when and how often proposed CEAs are rejected or blocked just as Oona already has for those treaties placed before the Senate? That obviously may be hard to do (especially beyond trade agreements, and even there it’ll be harder now that there’s no more Fast Track authority). But absent some such evidence, can we blame the Executive Branch for wanting to have all these methods at its disposal when it seeks to conclude a treaty?

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