In association with the International Commission of Jurists

Topics

20 Mar

First off, let me thank Oona Hathaway and our guest bloggers for contributing to what is turning into a highly useful discussion of the relative merits of Article II treaties vs. congressional-executive agreements. Oona's work is ambitious and provocative, seeking to marshal comparative, historical, and normative arguments in favor of (largely) discontinuing the Article II treaty-making process. Some...

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20 Mar

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...

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20 Mar

I'd like to join Roger in focusing on how the trend away from article II treaties is perfected. Oona's "informal reform strategy" suggests that the move to CEA’s (with only a few exceptional areas carved out for continuing article II treatment) can be implemented through presidential submission choices. The strategy is “both legally unproblematic and politically feasible. It...

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20 Mar

I very much like Oona Hathaway's article. I think the most helpful part of your article is how you challenge the commonplace notion that there are obvious substantive differences between Article II treaties and Congressional-Executive Agreements (CEAs). Tables 1 and 2 grouping Article II treaties and CEAs by subject matter are priceless on that score. I have one...

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20 Mar

In reading Chris Borgen’s incisive post on Oona Hathaway’s masterfully written article, I was reminded of the American Declaration of Independence. The 1776 Declaration boldly declared, “When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another… a decent respect to the opinions of mankind requires...

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20 Mar

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"...

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20 Mar

In her forthcoming article in the Yale Law Journal, Oona Hathaway argues, not only that congressional-executive agreements (CEAs) are constitutionally permissible alternatives to treaties, but also that such statutes have a richer and broader historical pedigree than is commonly assumed, and that, with minor exceptions, such CEAs are superior along several dimensions to traditional treaties as a mechanism for making...

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20 Mar

Or so says Professor (and sometime-guest blogger) Eugene Kontorovich in a recent op-ed. As a result, NATO and America have become parties to the carve-up a sovereign state that they subdued by force. To say that this goes against the core principles of the U.N. Charter is an understatement. For international law, the entire process is a string of humiliations. The...

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20 Mar

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...

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19 Mar

I again want to thank Oona Hathaway for joining us in this discussion of her article Treaties’ End. As I mentioned in my opening post, her article is both rich in historical detail and deploys impressive empirical research. I will turn to the historical argument in a later post, for now I want to focus on an aspect of...

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19 Mar

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...

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18 Mar

The last couple of months have been very good for the study of foreign relations law. First, there was Marty Lederman’s (Georgetown) and David Barron’s (Harvard) two part article on the President’s Commander-in-Chief power when used in opposition to Congressional limitations. Now, we have Yale Law Professor Oona Hathaway’s analysis of the Constitution’s Treaty Clause and the modern practice of...

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