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...
The Republic of Madagascar has ratified the Rome Statute, effective 1 June 2008. ...
The blog is part of a wonderfully interactive website dedicated to generating ideas for the next president. Here is the website's self-description:Climate change, terrorism, poverty, the spread of disease — these are just some of the global challenges that we all face. On Day One is a platform for gathering and sharing your ideas about what the next president...
I too have enjoyed reading the range of responses to Oona’s important article. Here I’ll just reflect on the article’s treatment of the campaign by Senator Bricker in the 1950s to adopt a constitutional amendment to restrict the treaty power. Several scholars, including Oona, have analyzed how U.S. human rights treaty practice occurs in the shadow of the botched...
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...
I'd like to join the conversation prompted by several of the posts, particularly Curt’s insights on federalism and human rights. Federalism has been frequently used as a red herring in the context of ratification debates over human rights treaties. Structural labels such as “federalism” have been invoked with some regularity to veil more substantive concerns underlying resistance to human rights...
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...
I very much enjoyed reading Professor Hathaway's very strong contribution to an already strong literature on the relationship between treaties and executive agreements in U.S. law. In my view, the particular strength of the article lies in its empirical analysis of U.S. treaty and executive agreement practice, an analysis that has rarely been done in prior work on the...
As we explained in our first post, we agree with the broad “interchangeability” thesis as a matter of constitutional law, and we are, in general, quite sympathetic to Oona Hathaway’s comprehensive case on behalf of a presumption in favor of the use of congressional-executive agreements (CEAs) rather than treaties . . . principally because of the more robust democratic nature...
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...
It was a privilege to read Oona Hathaway's Treaties' End. It's beautifully written, thought-provoking, and original - a hat-trick in academic writing. I join the other commentators in applauding this great contribution to the scholarship on international lawmaking in the United States. While I agree with much of Professor Hathaway's analysis, I came away unpersuaded by the...
Even if historical practice does not provide a legitimate basis for restricting the scope of the congressional-executive agreement power, federalism might. Under Missouri v. Holland, neither Article II treaties nor the statutes that implement them are subject to the enumerated power limitations that apply to Congress. While these limitations are relatively modest, especially with respect to activities involving...
