Treaties’ End

by Oona Hathaway

Let me begin my final post with a heartfelt thank you to Chris Borgen, Opinio Juris, and all the participants in the forum for a remarkable conversation about my article, Treaties’ End.

The conversation has touched on a wide range of issues that deserve much deeper treatment than I can give them here. I will just briefly mention several of the issues that have been raised over the course of the past week. This post is not meant to end the conversation but instead to invite continued debate and discussion.

First, the conversation has raised questions about the meaning of the term “lawmaking” in the context of international law. The subtitle of the article is, “The Past, Present, and Future of International Lawmaking in the United States.” Duncan Hollis asks whether the term is really correctly applied to international treaties. Duncan is right that the use of the term in this context is not standard. As I explain in the article, the terminology is quite deliberate–and part of my effort to reframe the debate. I refer to treaties and congressional-executive agreements “as ‘international lawmaking’ to emphasize the dependence of international law on individual countries’ decisions to commit to it. International law may be negotiated by states in New York or Geneva or Montreal, but it is not made at the negotiating table. It is made by countries when they agree as a matter of law to a binding international commitment. For it is the act of consent by each country that transforms an international agreement from a piece of paper devoid of any legal force into law that binds.”

Second, the conversation has repeatedly touched on issues of federalism. I argue in my article that the Article II Treaty Power does not face the same limits as Congress’s delegated powers under Article I. The Treaty Power is instead subject to limits of its own–a treaty must “have the consent of a foreign nation” and must be genuine, that is the parties must have a mutual interest in the subject matter of the agreement. Curt Bradley raises the debate over Missouri v. Holland, which he has addressed in depth in his scholarly work. He is concerned that lack of federalism constraints on the Treaty Power could lead to an expansion of federal lawmaking authority that lies in tension with democratic legitimacy. Cathy Powell also discusses this issue in the context of the debate over ratification of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). She disagrees with Curt, arguing that “federalism has been frequently used as a red herring in the context of ratification debates over human rights treaties”—and noting that the debate over the CEDAW was no exception. I respond to many of Curt’s points in a separate post and will not repeat that here. As I note there, much of our disagreement stems not as much from our different views of the Treaty Power as from our different views of Congress’s Article I powers, which Curt says do not reach some human rights agreements.

Third, our discussion has raised questions about the political feasibility of my proposal to conclude nearly all international agreements as congressional-executive agreements, thus brining Article II treaties (almost) to an end. Why, Duncan Hollis, Marty Lederman, and David Golove ask in various posts, would the Executive Branch want to “clarify the admittedly obscure landscape involving treaties and CEAs.” Would it really be “easier” to get the support of 51 Senators plus 218 Representatives than to get the support of 67 Senators? Why would the President ever go along with a plan to create stronger international commitments that are more difficult for the President to unilaterally undo? Peter Spiro adds, “it’s not clear that the Senate will go quietly into the Hathaway night.” I have already answered some of these questions. I acknowledge in the article that it would not necessarily be “easier” to gain a majority vote in both houses than a supermajority vote in the Senate (particularly, as I discuss in some depth, in light of the filibuster). Even so, I think the voting structure for congressional-executive agreements is more likely to lead to policies that reflect the preferences of the broader electorate than is the voting process for Article II treaties because it does not hand a veto to such a small and extreme minority. And I urge those considering the feasibility of the plan to keep in mind that presidents not only wish to maintain flexibility for themselves, but they might also want to create real constraints for their successors. That desire might lead presidents to endorse strong international commitments. The Senate, too, may not provide the opposition some expect: It has been surprisingly quiescent in the face of a grand expansion in the use of congressional-executive agreements, even though that expansion has diminished its unique power under the Treaty Clause.

Fourth, the conversation has raised questions about whether congressional-executive agreements or treaties lead to more reliable international commitments. In my article, I claim, contrary to the claims of nearly all the literature to date, that congressional-executive agreements have the potential to create stronger international commitments than do Article II treaties. David Golove and Marty Lederman take issue with this claim, arguing that treaties and congressional-executive agreements create equally strong international commitments. In an earlier post, I responded that even admitting that the two instruments are equal in this regard represents a significant move away from the current consensus that treaties are the stronger of the two. I go one step further, however, and argue that congressional-executive agreements are frequently easier to enforce and can be more difficult to undo than treaties–features than in my view make the congressional-executive agreement a more attractive mechanism for creating strong international commitments.

Fifth, the conversation has turned to the meaning of democratic legitimacy and its relationship to popular sovereignty. In my article, I argue that one reason to favor congressional-executive agreements over treaties is that they have stronger democratic legitimacy. In their first post, David Golove and Marty Lederman, agree with me that democratic legitimacy is a valuable aim and that the CEA is the more democratic alternative. David Bowker, on the other hand, asks what underlies the assumption that democratic legitimacy is a virtue in the context of international agreements. Finally, Julian Ku argues that even more important than democratic legitimacy is the American conception of popular sovereignty: “The touchstone of legitimacy for U.S. public lawmaking . . . is not simply that the most democratic method is used, but whether the method comports with the mechanisms embedded in the U.S. Constitution by acts of ‘popular sovereignty.’” By this criterion, he argues, treaty-making is more legitimate than CEAs because it is the product of popular sovereignty. I take issue with this last point. As I explain in the piece and in a post, achieving the support of a two-thirds majority of the Senate requires playing to the polarized extremes of modern American politics: the supermajority requirement means treaties must gain the support of (and can be vetoed by) senators that are twice as conservative or liberal as the so-called median voter in the Senate. This strikes me as a problem for democracy and for popular legitimacy. In a world where international lawmaking increasingly governs matters of importance to average Americans’ daily lives, the democratic legitimacy of those laws strikes me as just as important as the democratic legitimacy of purely domestic lawmaking.

Sixth, we discussed the role of comparative research in studying the U.S. Constitution. In the article, I use comparative data to show that the U.S. treatymaking process is extremely unusual in international perspective. Chris Borgen asks “to what extent is comparativism useful”? And Duncan Hollis argues that “the diversity of approaches makes it difficult to create a uniform spectrum on one end of which the United States lies.” He, too, asks about the utility of the comparative research in this context. As I note in my own post on the role and value the comparative research to this project, I believe that the comparative research puts the U.S. experience into perspective and offers us a better sense of the range of possibilities. This can be helpful because scholars who have written about the international lawmaking process in the United States frequently assume that the U.S. international lawmaking process is the norm. Seeing our practices in comparative perspective makes it clear that it is not. And it leads us to ask why our way of doing things is so unusual–and if there might not be a better way. To me, that is the value of the comparative perspective for this project.

Seventh, the discussion has raised the role of human rights–and specifically issues of race–in shaping the course of international lawmaking in the United States. In my article, I argue that the Treaty Clause was shaped in part by a desire among many of the Founders to protect a tenuous compromise over slavery and that later resistance to treaties and efforts to prevent the United States from entering international human rights agreements was motivated by fears that the treaties would be used to challenge segregation and Jim Crow. Roger Alford and Cathy Powell both pick up on these points. (I respond directly to their posts in a separate post.) In her latest post, Cathy Powell discusses the use of human rights agreements to challenge racial segregation–adding valuable new detail to the discussion. (Cathy takes issue with my characterization of this fear at one point in the article as “largely imagined.” I meant to refer there to some of the more outlandish claims of the anti-treaty activists. As I explain in the article, I think this fear was very real, even if some of the specific claims were imagined: “[t]he Bricker Amendment was, in short, a thinly veiled effort to prevent the use of international human rights agreements to curtail racial segregation in the United States. It gained the strong support of Southern Democrats, who feared that the Genocide Convention and International Covenant on Civil and Political Rights could be used to justify an anti-lynching bill or to supersede and invalidate segregation laws and other discriminatory state legislation.”)

This final post comes nowhere close to doing full justice to the rich conversation that began last week, but I hope that it provides something of an overview of the key issues that we have discussed and a foundation for continuing debate. Thanks again to everyone who has participated and to Opinio Juris for providing such a great forum for discussion.

One Response

  1. I just wanted to thank Oona for her wonderful article and the folks that made comments. The article and comments have given me numerous issues to think about.

    Francisco Forrest Martin

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