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...
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...
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...
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"...
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...
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...
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...
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...
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...
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...
As expected, during today's Supreme Court oral argument in District of Columbia v. Heller there was no discussion whatsoever of comparative analysis of gun control laws in other countries or comparative death rates. To the extent there was any discussion of foreign authority, it was all about English history as an interpretive device for understanding the Second Amendment....
It's now been five months since the Court heard oral argument in Medellin v. Texas and yet Medellin is still waiting to learn his fate. There's already been much speculation about where the Court will go, some favorable to Texas' argument that the President lacked the power to direct Texas' court system to review and reconsider Medellin's conviction and...
