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...
Canada's Supreme Court ruled yesterday that it would hear a claim brought by Omar Khadr, a Canadian citizen who is currently being detained at Guantanamo Bay and who is scheduled for trial in a U.S. military commission. The court did not completely reject the Canadian government's non-justiciability arguments, which are that a Canadian court cannot sit in judgment of...
Yes, the venerable symbol that was born as the emblem of the British anti-nuclear movement but has matured into the universal sign of peace turns 50 today. It's a beautiful symbol, one that — alas — will likely outlive us all. But we should still continue to hope for a world in which its use will no longer be necessary. ...
I interrupt this exchange on Oona's marvelous essay to bring you the following public service announcement from John McCain, live from Sderot, in Israel:[Purim is] their version of Halloween here.Purim actually commemorates the deliverance of Persian Jews from Haman's plan to exterminate them. But close enough. ...
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...
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...
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...
