Author Archive for
Oona Hathaway

Medellin v. Texas and Treaties’ End

by Oona Hathaway

As many have noted, the Supreme Court’s decision yesterday in Medellin v. Texas raises serious questions about the binding nature of United States’s treaty commitments. The Court holds as follows: “Because none of these treaty sources creates binding federal law in the absence of implementing legislation, and because it is uncontested that no such legislation exists, we conclude that the Avena judgment is not automatically binding domestic law.” (Slip Op. at 10). In other words, the Optional Protocol to the Vienna Convention on Consular Relations may be binding as a matter of international law, but it is not binding domestic law because it is not self-executing and there is no federal legislation that puts the obligation into effect.

This decision just serves to prove a point that I make in my article, Treaties’ End, which was the subject of a forum on Opinio Juris last week. In the article, I argue that treaties can be more difficult to enforce in U.S. courts than congressional-executive agreements. That is in part because some treaties are not self-executing. (I put to one side, for now, the question of whether the Court was right that the treaty obligations at issue in Medellin are or are not self-executing.) In such cases, two problems can emerge. First, a non-self-executing treaty could impose an international obligation on the United States that would be unenforceable as a matter of domestic law—because the necessary implementing legislation has not been passed—leaving the country in violation of its international obligations. (That is essentially what the Medellin Court decided had happened in that case.) To avoid this problem, the Senate usually postpones its advice and consent to a non self-executing treaty until implementing legislation can be enacted concurrently. Alternatively, it might give its advice and consent to the ratification of a treaty contingent upon the subsequent enactment of implementing legislation. That did not happen here—either because everyone involved assumed the treaty obligations were, in fact, self-executing or because the nature of the treaty obligations were not expected to give rise to individual claims under the treaty that could only be satisfied if there were federal implementing legislation (if the latter were true, that would represent a serious lack of foresight that should have been addressed once the individual claims were in fact filed).

As I argue in my article, congressional-executive agreements make it possible to avoid these dilemmas. Congressional-executive agreements are created by means of legislation passed by both houses of Congress. Unlike non-self-executing treaties, congressional-executive agreements provide one-stop shopping: the same act that provides the authority to accede to the international agreement can also make the necessary statutory changes to implement the obligation incurred. Had the Vienna Convention and Optional Protocol been entered as congressional-executive agreements, it is extremely unlikely that the Court would have held in Medellin that the treaty obligations were unenforceable in U.S. courts as a matter of domestic law.

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.

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.

The Founders, Democracy, and Missouri v. Holland

by Oona Hathaway

David and Curt both raise interesting points that I’d like to address.

First, David worries that I am too quick to dismiss the Founders’ concerns. I argue in my article that the Founders decided to place responsibility for concluding treaties in the hands of the President and the Senate alone for two central reasons. First, it was expected that the Senate would be directly involved in negotiating treaties and would serve as the President’s “council of advisors” in treaty-making. Second, it was seen as a way to keep the federal government from bargaining away regional interests.

There were, of course, other concerns voiced by various actors during this period, many of which I mention in the piece. (As David notes, there were “doubtless as many additional concerns as there were delegates to the Convention.”) But based on my reading of the Constitutional Convention, state conventions, contemporary historical events, and legal scholarship on the issue, these were the two “central” concerns–and hence the ones that are most important to address.

I agree with David that there were–and are–other concerns that should be considered in deciding whether to continue making agreements through the Article II Treaty Clause or instead through congressional-executive agreements. Much of my article is devoted to discussing these other concerns. I also recognize that my discussion does not exhaust all possible considerations and I welcome a new, robust debate about these issues. On the issue of credible commitments that David raises, I think that congressional-executive agreements lead to more credible commitments for reasons discussed at length in the article. Treaties have an aura of inviolability that is belied by reality. Presidents have unilaterally withdrawn from treaties, even over the strenuous objections of members of Congress (remember the ABM treaty?). And Congress can prevent a treaty’s enforcement by passing an inconsistent statute. A move to congressional-executive agreements thus makes our international commitments no more vulnerable to the four-year presidential election cycle–in fact, I think it can make them less so.

Finally, David asks what underlies the assumption that democratic legitimacy and bureaucratic efficiency are virtues in the context of international agreements. We may just have a difference of opinion on this point. I think that these virtues are especially important in the modern era, when international law and domestic law are increasingly intertwined and overlapping. International law today does not simply deal in matters of diplomatic relations and border disputes–issues one might argue should be insulated from the masses. Modern international law is about everything from education to tax policy to torture. In this era, the exclusion of the House from participation in international lawmaking is increasingly dissonant.

Let me turn now to Curt’s points about Missouri v. Holland–which also connect to issues of democratic legitimacy. Curt’s has written extensively and provocatively on the limits of international law and I’ve learned a lot from his scholarship. As he points out, we agree on some matters (that the holding in Missouri v. Holland does not apply to congressional-executive agreements) and disagree on others (that human rights agreements fall outside Congress’s Article I powers and hence must be concluded as Article II treaties). Much of our disagreement in this context has nothing to do with international law. It turns instead on the reach of Congress’s enumerated powers, which I think is more extensive than does Curt (who is joined in his more restrictive view by John Yoo, who argues this point extensively in his 2001 Michigan Law Review article and whose argument I disagree with in my article).

I also disagree with Curt’s suggestion that it is somehow anti-democratic to conclude that the Article II treaty power is not limited by the same federalism concerns as Congress’s enumerated powers under Article I. As I discuss in Part IV.A. of the article, the Article II Treaty Power and Congress’s enumerated powers are separate and independent powers of the federal government and subject to distinct limits; it is no more reasonable to think that the Treaty Power is limited to the enumerated powers than it is to think that, for example, Congress’s power to provide and maintain a navy is limited to its power to regulate commerce.

Even though the Treaty Power is not limited in the same way as the legislative power of Congress, it is far from unlimited. It is instead subject to limits of its own, consistent with its distinct purpose. Article II treaties, in the words of Thomas Jefferson, “must have the consent of a foreign nation.” They must, moreover, be genuine–that is the parties must have a mutual interest in the subject matter of the agreement. That mutual interest can be manifested in reciprocal or respective commitments by the parties. By contrast, a treaty concluded for the sole purpose of enabling a party to avoid its domestic lawmaking rules would not constitute a genuine agreement. The necessity of a foreign partner willing to enter an agreement of mutual interest serves as both a justification for and a limit on the Treaty Power.

Human Rights and International Lawmaking

by Oona Hathaway

Cathy and Roger both pick up on the special role that human rights treaties play in the history of international lawmaking in the United States. In my article, I argue that the current bifurcated system of international lawmaking took its shape over the course of the twentieth century. The United States gradually abandoned the mercantilist, protectionist trade policy that it had pursued since the Civil War in favor of a policy built on reciprocal congressional-executive agreements on trade. Meanwhile, opposition to human rights agreements motivated significant opposition to treaties especially in the second half of the century. In particular, in the 1950s, a series of proposed amendments to the Constitution (usually referred to as “the Bricker Amendment”) aimed to prevent the United States from entering international human rights agreements that some feared would be used to challenge segregation and Jim Crow. Roger asks if this concern is still relevant. I think it is in two ways.

First, past practice influences present practice. The controversy over the Bricker Amendment ended in a “compromise” in which the amendment was defeated at the cost of future human rights agreements, which would thereafter be concluded only as Article II treaties that had been rendered almost entirely unenforceable through reservations, understandings, and declarations (RUDs)–that is, if they were ratified at all. That continues to be true even today, both because of the natural force of precedent and because of the specific incorporation of past practice into the Circular 175 Procedure followed by the State Department in deciding which instrument to use for an agreement.

Second, there remain concerns among many of those who resist ratifying international human rights treaties that the treaties will bring about internal changes in the United States. This was the central line of attack on the Convention to Eliminate All Forms of Discrimination Against Women at the hearings before the Senate Foreign Relations Committee as recently as June 13, 2002. Congresswoman Davis, for example, stated that we should not “be eager to have our laws and social structures pronounced upon by an international committee made up in part by representatives of nations with notoriously poor human rights records” while at the same time echoing concerns raised by others that ratifying the treaty might lead to calls to decriminalize prostitution and end Mothers’ Day. Those concerns were voiced in spite of the fact that the RUDs would have almost certainly made direct enforcement of the treaty in U.S. courts impossible.

Roger asks what is stopping the executive and legislative branches from proposing agreements that ordinary would have proceeded as Article II treaties as congressional-executive agreements instead. I think that the reticence is due in part to a misreading of the law (that I am trying to correct in this article) and in part to a commitment to precedent (that I am arguing is misplaced). I expect it is also due in part to concerns about how such agreements might be received by the Senate (which, after all, has to approve congressional-executive agreements as well). But that, too, is surmountable. In the past, the Senate has been open to greater use of congressional-executive agreements even at the expense of its unique role in the Article II treaty process. A committed President and congressional leaders could lead the Senate to take the next step.

Democracy and Treaties

by Oona Hathaway

As David Golove and Marty Lederman note in their post, I argue in my article that one important advantage of congressional-executive agreements over Article II treaties is their stronger democratic legitimacy. I want to say a few more words on the grounds for this claim.

The Treaty Clause provides that agreements are made by the President with the “advice and consent” of two-thirds of the Senate. Congressional-executive agreements, by contrast are made by the President acting in concert with majorities of both houses of Congress. Unlike the process for making congressional-executive agreements, then, the Article II process excludes the House of Representatives. Critics of international law frequently contend that international law is undemocratic, often basing their complaints on this exclusionary process. The assumption behind the complaint is often that the U.S. process is also the international norm. As discussed earlier, the Treaty Clause process is, in fact, extremely unusual: only Tajikistan and the United States have a lower level of legislative involvement in treaty-making than in ordinary legislation and make the results of this process automatically part of domestic law in more than a few confined areas of international law. The fault, then, if there is one, is not that of international law but of the United States’ distinctive method of making that law.

The Founders designed the Treaty Clause as they did not because of a belief that a supermajority vote in the Senate (and exclusion of the House) would somehow be more democratic. The Clause was instead the product of an almost immediately frustrated expectation that the Senate would play a role as a confidential council of advisors to the President in treaty-making, as well as the very distinct historical context in which the Treaty Clause was formed (related to a desire among the southern states to protect their rights to free navigation of the Mississippi).

As I also discuss in the article, the same lawmaking process that sets too low a bar in the House sets an excessively high bar (in my view) in the Senate. The two-thirds rule imposed by Article II is among the highest imposed in the Constitution. There are substantial, and frequently unacknowledged, costs to this exceptionally high requirement. The supermajority requirement imposed by the Treaty Clause means that treaties that enjoy the support of a strong majority of the population and its political representatives may still not be approved.

This is all the more true because the Senate is extremely malapportioned–far more so today than it was even a century ago. Today, senators representing only about eight percent of the country’s population can halt a treaty. Hence achieving the support of a two-thirds majority can require playing to the polarized extremes of modern American politics: If we array the senators in the 109th Congress from most liberal to most conservative according to a widely used measure of ideological position, we see that the sixty-seventh senator was just over twice as conservative as the fifty-first senator. In the reverse dimension, the sixty-seventh senator was also just over twice as liberal as the fifty-first. In other words, the supermajority requirement means treaties must gain the support of (and hence can be vetoed by) senators that are twice as conservative or liberal as the so-called median voter in the Senate.

I acknowledge that there are cases in which a supermajority requirement of this form can be democracy-enhancing, because it requires a broader consensus to develop before action can be taken. Judith Resnik, for example, has persuasively argued that a supermajority is democracy-promoting in the context of the selection of Article III judges. Ratifying a treaty is fundamentally different, however, from approving judges. Most notably, if a particular nominated judge is not approved, another one who can command broader support will almost certainly be nominated in his or her stead. By contrast, if a treaty is rejected, there will be no international agreement (unless, of course, it is concluded by congressional-executive agreement, as I advocate).

The Value of Comparative Research

by Oona Hathaway

Chris makes several excellent points about the value of comparative research. I think it is worth mentioning that I came to this topic from the comparative perspective rather than the other way around. I have for four years now been working on a project in which I am examining the international and domestic lawmaking processes of the 186 countries that have a constitution (or basic laws that essentially operate as one). When I examined the initial data this past summer, I was surprised to see that the United States was such an outlier. This struck me as an interesting puzzle: Why and how did the United States come to have such an unusual international lawmaking process?

The comparative research thus 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.

I do not mean to suggest that doing things differently from the rest of the world is in itself wrong or unwise. As I put it in the article, “[t]hat the process for making treaties in the United States is extremely unusual does not mean, of course, that it is necessarily wrong or misguided.” But it does lead 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.

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.