Thanks to Oona Hathaway and the Guest Commentors on Treaties’ End

by Chris Borgen

One last note regarding the discussion of Treaties’ End

On behalf of all of us at Opinio Juris, I would like to thank Oona Hathaway, David Bowker, Curtis Bradley, David Golove, Marty Lederman, and Catherine Powell for joining us for the discussion of Oona’s article. As is evidenced from the discussion, each of our guests put a great deal of time and effort into analyzing the issues presented by Oona’s thought-provoking article. Speaking personally, I learned a great deal.

We hope you found it interesting, as well, and we look forward to similar online symposia in the coming weeks and months.

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.

The Ghost of Senator Bricker

by Catherine Powell

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 Bricker Amendment campaign (a phenomenon Louis Henkin refers to as living with the “ghost of Senator Bricker”). While the Bricker Amendment failed, the last five decades of human rights treaty practice has, as Oona puts it, “paid fealty to the ‘ghost of Senator Bricker’ by eviscerating agreements with [RUDs] that render them virtually unenforceable.” (p 168) Oona deploys this history (along with evidence that the treaty clause sprung out of a compromise based in part on concerns of slaveholding southern states who insisted on the supermajority requirement) to gather further support for her claim that “the current system of international lawmaking in the United States 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.” (p. 107). Reviewing this history, Oona insists that “the reasons that gave rise to current practices have been discredited and rendered obsolete.” After all, Oona suggests the “backlash against the human rights revolution” — represented by the Bricker Amendment campaign – was based on “the largely imagined possibility that human rights treaties would be used to challenge racial segregation.” (p. 140)

I disagree with this characterization. Indeed, civil rights lawyers and activists were using and continue use human rights treaties and the broader framework supporting the idea of human rights to challenge racial segregation – oftentimes in ways that go beyond traditional legal strategies. Going back to the abolition movement, prominent abolitionists such as Frederick Douglass and Harriet Tubman, wrapped themselves in the cloak of human rights (and, of course, some of the earliest human rights treaties prohibited slavery and the slave trade). Then, in the 1920s, Marcus Garvey submitted a set of complaints to the League of Nations, which he called the “Declaration of the Rights of Negro Peoples of the World.” Following the atrocities of the Nazis, in the immediate aftermath of WWII, the NAACP and American Jewish Congress worked hand in hand to get the word “human rights” into the UN Charter, in opposition to Southern Democrats like Texas Senator Tom Connolly, a key member of the U.S. delegation to the San Francisco conference where the Charter was negotiated. With the establishment of the United Nations, in 1947, the NAACP petitioned the world body, soliciting it to condemn race discrimination.

The big challenge to the U.S. came after the Genocide Convention was adopted in 1948. In 1951, several prominent civil rights leaders – including WEB Dubois, Paul Robeson, William Patterson, Mary Church Terrell, among others – submitted a complaint to the U.N. entitled “We Charge Genocide,” which argued that the federal government, by failing to act against lynching in the U.S., was guilty under article II of the Convention. The petition also documented numerous unfair trials and executions of African Americans, as well as large scale voter disenfranchisement through poll taxes and literary tests.

Even the Justice Department embraced an internationalist frame, when, in its amicus brief in the Brown v. Bd of Ed case, it highlighted the hypocrisy of the U.S. role in advocating for rights abroad, when it could not guarantee these rights at home. The Founding Charter of the NOW Legal Defense Fund also recognized that “our own status is inextricably linked to those around the world” (and today, the organization has taken a leadership role in a coalition supporting adoption of a local ordinance in New York City, incorporating CEDAW and CERD).

While civil rights leaders of the 1960s were split on ideology, both Martin Luther King and Malcom X adopted human rights rhetoric and internationalist outlooks. Before his assassination in Memphis — where he was looking for a way to link traditional civil rights and economic justice concerns in his campaign to organize a poor people’s campaign — King proclaimed that “it is necessary to realize that we have moved from the era of civil rights to the era of human rights.” For his part, Malcom X cautioned, “We have to keep in mind at all times that we are … fighting for recognition as human beings. We are fighting for the right to live as free humans in this society. In fact, we are actually fighting for rights that are even greater than civil rights and that is human rights.” At another juncture, Malcom X advised, “Our problem must be internationalized.”

Jack Greenberg tells me that during his pioneering days at the NAACP Legal Defense and Educational Fund (LDF), he included cites to treaties in his prisoners rights briefs – if for no other reason, than to educate judges to inform them of U.S. obligations under international law. Perhaps this is why he and Louis Henkin went on to create a colloquium for law students called Human Rights and Constitutional Rights (a course I now teach at Fordham). Playing an educational role on a broader scale, the Aspen Institute hosts seminars for judges — taught by prominent law professors– which includes a focus on human rights treaty obligations.

Today, many of the major civil rights and civil liberties organizations participate in the human rights treaty body system and have been active participants in the recent set of U.S. compliance hearings before the Human Rights Committee, the Committee Against Torture, and the Committee on the Elimination of Racial Discrimination (CERD). Beyond the NAACP LDF (mentioned above), the Lawyers Committee for Civil Rights recently held a congressional briefing on CERD (following last month’s U.S. compliance hearing on CERD) and the national office of the ACLU has a human rights unit dedicated to integrating human rights work throughout the organization.

Like Oona, I’d like to think the U.S. is in a very different place than it was in the 1950s – the high water mark of the Bricker campaign. There is a broad recognition that discrimination (de facto or otherwise) not only insults the concept of human dignity that is at the very core of the human rights idea, but also hampers the ability of the nation to compete globally. For this reason, congressional-executive agreements (CEAs) represent an exciting possibility for moving beyond the Bricker consensus. As I discussed in an earlier post, in light of how underrepresented people of color are in Congress, especially in the Senate, I’m persuaded by Oona’s argument that moving toward CEAs and away from Article II treaties would enhance democracy and reinforce representation of all the People. At the same time, in saying that “the rules we have today are an artifact of historical circumstances that have little continuing validity,” (p. 175) Oona’s article paints with too broad a brush over the ugly history that motivated Bricker, the ways in which that history has been calcified into current day discrimination and segregation, and the innovative use of human rights by civil rights advocates to circumvent this history. Oona’s article is, of course, already quite ambitious and multi-layered, so I’m not recommending that she try to reflect this history in all its richness and complexity. But, it may be helpful to try to finesse this history a bit more and its implications for the treaty-CEA trade off, as the struggle for equality and human rights in the U.S. always has been and will continue to be uncomfortable for the Senator Brickers of the world and those who nurture his legacy. One useful resource is Carol Anderson’s book, Eyes Off the Prize: The United Nations and the African American Struggle for Human Rights, 1944-1955.

Thanks again, Oona, for a terrific read and to Opinio Juris for hosting this fruitful exchange.

Normative Distinctions vs. Executive Flexibility in Treaty-Making

by Duncan Hollis

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 Future of International Lawmaking in the United States.” I wonder about the use of the term “lawmaking” here. Is it true that when we talk about treaties we’re always talking about lawmaking? As Sir Gerald Fitzmaurice noted 50 years ago, treaties have always had trouble qualifying as a true source of international law since a treaty binds only the parties to it and thus its obligations are not “law” so much as “lawful.” A treaty may form a source of law where it states a general rule of general obligation (i.e., the prohibition on genocide in the Genocide Convention), but just as often a treaty merely creates specific obligations, binding only the parties to it (i.e., a debt-restructuring agreement). Moreover, I think there’s some evidence to suggest that the Framers appreciated these sorts of distinctions even if they’ve had little traction in subsequent U.S. treaty practice. Vattel, who was well known to the Framers, for example distinguished “agreements” and “compacts” from “treaties” based on their dispositional nature—agreements or compacts involve obligations that can be perfected by one or more acts; treaties involve on-going obligations or relationships.

Now, unless you’re an originalist, I’m not sure whether the original meaning of the term “treaty” matters that much to the current debate over pursuing Article II treaties versus congressional executive agreements (CEAs). Moreover, as a descriptive matter, I agree with Oona that the two methods have never been treated as truly equivalent; there have always been certain subjects (e.g., arms control) that have largely followed one path or the other. On the other hand, I wonder if Oona may too quickly dismiss the search for relevant legal differences that explain those cases where both methods have been employed for treaties that otherwise appear to involve the same subject. She cites investment as a prime example with 43 Article II treaties and 77 CEAs. And yet, there is a reasoned explanation for this practice. While most investment CEAs are a byproduct of Congress’ use of its foreign commerce power, the Bilateral Investment Treaties (BITs) that go through the Senate are the direct descendants of FCNs (Friendship, Commerce and Navigation treaties). FCNs often included obligations on friendly relations in addition to provisions on trade or investment. And since the Founding, the Senate has considered such “political relations” treaties as within its purview. Thus, even if these two sets of agreements now fall under a common heading of “investment,” you could distinguish them based on the underlying subjects—trade versus political relations—that led to the choice of one method over the other in the first place. And, if we can do that for one “subject,” is it possible we could do the same for the others? As such, I’d like to see more clarification of whether the subjects that Oona suggests are done as both CEAs and Article II treaties are really the same subject, or could be conceived of along different lines.

Moreover, even if descriptively I’m wrong, the fact that there are a number of distinct ways to distinguish categories of treaties (e.g., lawmaking vs. lawful; dispositional vs. non-dispositional) suggests that Oona’s normative inquiry might want to consider a wider frame. Rather than defaulting straight to CEAs in most instances, why not consider alternative rationales for employing one method over the other? For example, perhaps the more elaborate Article II process (especially including the potential need for implementing legislation) should apply to law-making treaties or, alternatively, to dispositional ones; CEAs could then cover lawful treaties or non-dispositional obligations. Or, perhaps the reverse could be true? I don’t necessarily have a view either way, but it occurs to me that if we’re going to reconceive the status quo division among CEAs and Article II, shouldn’t we consider the normative case(s) for distinguishing the two methods on other grounds as well?

I suspect government officials will cringe at such a suggestion, just as I suspect most do at Oona’s proposition. Which brings me to my second, more pragmatic, point—why would the Executive Branch want to clarify the admittedly obscure landscape involving treaties and CEAs? Oona rightly notes that the Executive Branch has a process—known as the C-175—by which the Department of State decides what domestic method to pursue in entering into a treaty commitment as a matter of international law. She does not, however, explore the likely mindset of Executive officials as they engage in that process. One might imagine, for example, that the primary concern of the Secretary of State (and her lawyers) is simply to ensure that there is domestic legal authority for the United States to bind itself internationally; which authority is employed may be of far less a concern so long as some constitutionally recognized authority exists.

Thus, if Executive Power covers the treaty’s obligations, the inquiry may end there. Certainly, the Executive would be happy to have (and cite) additional authority from either Congress or the Senate, but such authority would in the end be superfluous. For example, I’ve understood the Executive view to be that Status of Forces Agreements (SOFAs) fall under the Commander and Chief power alone, so that when Congress authorizes a SOFA (as it apparently did in one case cited by Oona) or the Senate approves a SOFA (as it did for the NATO SOFA) it’s not clear to me how much weight to give such authorizations. Similarly, if Executive Power is deemed insufficient, the Executive’s primary concern remains simply finding some authority to conclude the treaty, rather than worrying about whether to prefer one method normatively over another. Indeed, the Executive might regard such a normative inquiry as hostile to the very flexibility it now has to rely on whatever authority exists (e.g., pre-existing legislation or a pre-existing treaty) for a new treaty; or to undertake the requisite political calculus of whether to use the Senate or the Congress as a whole if there’s insufficient existing authority.

In terms of any political calculus, Oona assumes that CEAs will be easier to obtain than Senate advice and consent. But is that necessarily true? Even with a supermajority, the transaction costs of getting 67 Senators may be less than getting 51 senators plus 218 Representatives not to mention all the extra House Committees that must examine the agreement, etc. Indeed, just as Oona cites examples of cases where the Senate has rejected a treaty, blocked its approval, or imposed extensive conditions on advice and consent, I can think of counter-examples where the Senate has acted with amazing speed (see the Moscow Treaty or the ILO Convention on the Worst Forms of Child Labor). Now it may be that the totality of the Senate advice and consent experience has proved more cumbersome and forms a greater roadblock to treaty-making than the regular legislative process, but to know that don’t we need to know about cases where the Congress has similarly rejected, blocked or conditioned CEAs? In other words, can we really say CEAs are better than Article II without examining when and how often proposed CEAs are rejected or blocked just as Oona already has for those treaties placed before the Senate? That obviously may be hard to do (especially beyond trade agreements, and even there it’ll be harder now that there’s no more Fast Track authority). But absent some such evidence, can we blame the Executive Branch for wanting to have all these methods at its disposal when it seeks to conclude a treaty?

CEDAW, Federalism, and Democracy in U.S. International Lawmaking

by Catherine Powell

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 treaties. For example, let’s examine the debate over U.S. ratification the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

Gender equality is a national problem that requires national solutions. However, in the 2002 CEDAW ratification debates, structural concerns regarding federalism were advanced to mask substantive resistance to women’s equality. As I’ve explored in greater detail elsewhere, in the ratification debates, treaty opponents cloaked themselves in banners of “constitutionalism” and “federalism” as a way of obscuring the role that culture and cultural stereotypes play in U.S. resistance to women’s human rights. More precisely, by foregrounding federalism, treaty opponents asserted a particular view about localism (and therefore local culture) as a mode for addressing gender inequality, rather than acknowledging that the ongoing disenfranchisement women face has a distinctly national character. (Consider the fact that reproductive rights, Family Medical Leave Act, the Equal Pay Act, and Title VII all involve federal constitutional law and/ or national civil rights legislation, despite objections by “states rights” adherents).

Conservative commentator Phyllis Schlafly expressed what were essentially cultural objections (to what she viewed as CEDAW’s radical approach to family and the role of women in society) by invoking the notions of federalism and limited government. In an article written shortly before the June 2002 CEDAW ratification hearings, Schlafly invoked federalism to assert that CEDAW’s provision concerning family planning “levels a broadside attack on states’ rights.” Schlafly pointedly wrote, “Private relationships should be none of our government’s business, much less the business of the United Nations.” Invoking the principle of limited government, Schlafly also rejected what she viewed as CEDAW’s support for government intervention in the market. She criticized the fact that CEDAW applies to discrimination against women “by any person, organization or enterprise”–a provision that extends the Convention’s protection to private actors, including corporations. Schlafly was also critical of a provision in CEDAW which ostensibly requires equal pay for work of comparable value (a notion reflected in the “comparable worth” doctrine, which some U.S. courts have rejected, though hundreds of companies as well as state and local governments require comparable worth as a matter of course). Relatedly, Schafly complained that CEDAW requires that “subjective” determinations of equal or comparable worth be made (by the government) in lieu of “objective” determinations made (by the market).

As Oona’s article points out, the Commerce Clause authorizes Congress to regulate the private sphere in particular ways (for example, to address gender and other forms of inequality). I share Oona’s broad view of the Commerce Clause. Moreover, so long as the federal government seems able and willing to bail out banks and investment houses, I simply don’t see the constitutional problem with government intervention in the market to address gender inequality. As such, I view the objections to CEDAW as grounded in culture, not constitutionalism.

Indeed, in her testimony before the Senate Foreign Relations Committee, Kathryn Balmforth, a treaty opponent, complained that CEDAW, in requiring equality for women in the workplace, will threaten U.S. culture and values (as she conceived of them), testifying that “These matters, and other matters covered by CEDAW, go to the core of culture, family, and religious belief. . . . The doctrinaire approach of the CEDAW Committee is nothing less than “cultural colonialism,” which attempts to force a radical western agenda which is widely rejected even in the West. It completely ignores the right of women and men, to political, social, and cultural self-determination.” She went on to argue that CEDAW would undermine the traditional role of women as mothers who pass on “culture and values.” These concerns echoed earlier remarks made by Republican Senator Jesse Helms when he chaired of the Senate Foreign Relations Committee and explained his opposition to CEDAW, saying, “[I]t is a bad treaty; it is a terrible treaty negotiated by radical feminists with the intent of enshrining their radical antifamily agenda into international law.” Helms concluded, “This treaty is not about opportunities for women. It is about denigrating motherhood and undermining the family.” As I’ve demonstrated elsewhere, these concerns are misguided and mischaracterize CEDAW (not to mention that these concerns overlook studies demonstrating the positive impact women’s empowerment has on children and families).

Oftentimes, scholars and policymakers assume that cultural and religious objections to women’s human rights are only asserted in by third world governments. In fact, the major rationale behind CEDAW ratification efforts in the U.S. in 2002 was so that the U.S. could sit at the CEDAW table (so to speak) to challenge cultural and religious practices abroad. President George W. Bush spoke of the need to “liberate” the women of Afghanistan in invading that country, and Democratic Senator Barbara Boxer proclaimed that “it is very important to the women of Afghanistan that” the U.S. ratify and “use CEDAW as a diplomatic tool for human rights” there. What is less well-known is how in the United States, cultural claims are sometimes manipulated to advance other interests, including those of male elites, and are, therefore, frequently contested by the very women in whose name these claims are made.

This brings me then to my final point, which is that women are grossly underrepresented in Congress (in roughly equal proportions in the House and Senate). In the 110th Congress, there are currently 365 men and 70 women in the House. In the Senate, there are 84 men and 16 women. (In term, of racial compensation, African Americans and Latinos are more disproportionately underrepresented in the Senate than the House: the House has: 364 white, 40 African American, 23 Latino, and 5 Asian American representatives; the Senate has: 94 white, 40 African American, 3 Latino, and 2 Asian American representatives). Rather than allow CEDAW to be held hostage by a supermajority requirement in the Senate, a congressional-executive agreement, by only requiring a simple majority, would provide women and their allies greater ability to secure passage. (Of course, I recognize that some women, such as Phyllis Schafly, oppose CEDAW, but my hunch is that broader, more inclusive modes of implementing human rights would permit women to accept or reject CEDAW norms based on a fuller understanding of what the Convention offers, rather than allow misplaced cultural objections to defeat the Convention before it even gets out of the Senate Foreign Relations Committee). While I agree with David Bowker’s point that the Treaty Clause was “intended in part to insulate our international commitments from the whims of a popular majority,” the advent of human rights treaties demonstrates a concern for politically disenfranchised groups for whom the supermajority requirement is an almost insurmountable barrier. Moreover, on Julian Ku’s popular sovereignty, a shift away from the supermajority strictures of the Article II treaty route toward the simple majority route may also be a way to reinforce popular sovereignty in a more representative way — that is, in a way that is more attentive to political participation by disenfranchise groups, such a women. I’ll try to come back to this point in a future post on Senate Bricker and the politics of race.

To operationalize Oona’s proposal, consider what might happen if a new Administration introduces CEDAW as a congressional-executive agreement. First, presumably the President could still enter any necessary RUDs. However, in adopting CEDAW as a congressional-executive agreement, Congress could include a sunset clause for periodic review of RUDs and for removal of particular RUDs as they become unnecessary (just as the U.S. reservation on the juvenile death penalty prohibition in the ICCPR became unnecessary with Roper v. Simmons). Second, Congress (with the President) could establish a gender commission that could collect data, monitor implementation, periodically review any RUDs and report to Congress on their continuing necessity, prepare the compliance reports that must be periodically submitted to the treaty body that oversees CEDAW, and provide assistance to state and local governments (along the lines of the assistance the State Department provides to state and local law enforcement to facilitate enforcement the Vienna Consular Convention). It strikes me that none of this is possible if CEDAW is adopted by treaty, unless further implementing legislation is enacted.

An outstanding issue that Oona has not squarely addressed (that may argue for CEDAW to be brought via the treaty route) is the linkage between CEDAW and U.S. v. Morrison. CEDAW’s General Recommendation Number 19 includes gender-based violence in the definition of gender discrimination and the Convention itself requires judicial remedies. In enacting the VAWA civil remedy (struck down in Morrison), I believe Congress failed to adequately document the connection between gender-based violence and the fact that women often flee their homes to escape violence, in ways that impact interstate commerce. In adopting CEDAW as a congressional-executive agreement, Congress could more effectively undertake this fact finding. Alternatively, in ratifying CEDAW as a treaty, enactment of any future civil remedies to challenge gender-based violence could benefit from a Missouri v Holland-type analysis. I’ll be addressing this dilemma further (along with the gender commission concept discussed above) in an upcoming issue brief I’m developing with the American Constitution Society.

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.

How to Evaluate International Lawmaking: Democratic Legitimacy v. Popular Sovereignty

by Julian Ku

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 subject.

Indeed, it strikes me that Oona’s article offers new support for the proposal made in John Yoo’s 2001 Michigan Law Review article, which also proposed relying on CEAs for everything that falls within Congress’ Article I powers. Yoo’s justification was on somewhat different grounds, but both Yoo and Hathaway end up in roughly the same place. If there is anything that is outside of Congress’ Article I powers, then Article II treaties can be used to take care of those kinds of agreements. The only difference, as far as I can tell, is that Oona does not think there are likely to be many such Article II treaties. Both Yoo and Hathaway, though, would be content for the vast majority of international agreements to go through the CEA process, but neither is arguing for true “interchangeability” in the sense that CEAs are exactly co-extensive with Article II treaties.

Additionally, the Yoo and Hathaway articles both invoke democratic legitimacy to justify the use of CEAs over Article II treaties. This is a powerful and important rationale for evaluating international lawmaking which is too often ignored by prior scholarship in the foreign relations area.

So far so good. If John Yoo and Oona Hathaway can agree on a proposal, and even that democratic legitimacy is a crucial justification for their proposal, there is decent chance that a consensus is developing somewhere (and who am I to disagree?).

And yet, I am not quite fully on board. It strikes me that, even more than democratic legitimacy, international lawmaking in the United States must also comport with American notions of popular sovereignty. Popular sovereignty, in my view, explains why the formal requirements of the Constitution for public lawmaking (e.g. the presentment requirement) should be adhered too even if they are less efficient or even if they are less democratically legitimate (see, e.g., the Electoral College, the Senate, etc). The touchstone of legitimacy for U.S. public lawmaking, I suggest, 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” (or to use Professor Ackerman’s terminology, higher lawmaking).

By this criterion, treaty-making is more legitimate than CEAs because it is a product of “popular sovereignty” that embedded lawmaking mechanisms into the U.S. government structure. Note that legitimacy is not the same as “the most democratic system.” Rather, the argument is that changing the structure too fundamentally, even for the best of reasons, undermines the basic foundation of the U.S. system of constitutional government.

I think Professors Ackerman and Golove recognized the importance of popular sovereignty in their search for a post-WWII act that would qualify as an act of “higher lawmaking” that would justify CEAs. I’m less sure they found such a qualifying act, but I agree with the necessity of finding one that would justify the dramatic shift away from existing practice that Professor Hathaway is proposing.

Do Congressional-Executive Agreements Establish More Reliable Commitments Than Treaties?

by David Golove and Marty Lederman

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 of such statutes. Professor Hathaway, however, argues further that CEAs are preferable to traditional treaties because they “create more reliable international commitments.” Although we think this is occasionally true–in circumstances we described in our prior post–we remain doubtful that the “more reliable commitments” argument is sound as an argument for a more comprehensive abandonment of treaties in favor of CEAs.

Oona’s case for the greater reliability of CEAs rests principally on two claims: (i) that commitments made through CEAs will be easier to enforce (presumably against the Executive branch) in domestic courts; and (ii) that it will be more difficult for the President to withdraw the United States from CEAs. In our view, both prongs of this argument are doubtful.

1. Professor Hathaway first claims (see page 181 of her draft) that “[i]nternational law truly binds only when there is a way to enforce a state’s obligation under international law in domestic courts,” and that CEAs are preferable in this respect because they “allow[] for a one-stage rather than multi-stage process to create [this] enforceable legal commitment.”

For starters, we question the premise of this argument (and we suspect Oona does not really mean to embrace such an unqualified proposition). Even where there is no means of enforcing a treaty or CEA in court, that agreement obviously does, at least in a formal legal sense, “truly bind” the United States: Not only does it impose an international law obligation, but the Supremacy Clause (and, for the President, the Take Care Clause) requires the political branches of the United States (and, where relevant, the States) to comply with the treaty or statutory agreement as a matter of domestic constitutional law. Take, for example, Common Article 3 of the Geneva Conventions. Congress’s recent diminution of judicial review over claims involving Geneva violations, and its dilution of the War Crimes Act (in sections 5 and 6 of the Military Commissions Act, respectively), have significantly (although perhaps not entirely) foreclosed judicial enforcement of Common Article 3 against U.S. government actors. Nevertheless, the United States, and the President, remain obligated, under both international and domestic law, not to engage in cruel treatment and torture with respect to detainees, by virtue of the prohibition in Common Article 3—and notably, no one in either the legislature or even the Bush Administration has suggested otherwise.

Perhaps, however, Oona has in mind a less formal concept of “bindingness.” She implies that the absence of judicial enforcement renders our legal commitments, as a practical matter, of little or no worth in the eyes of other nations. But that would be an overstatement. Indeed, state parties are often quite skeptical of the fairness with which domestic courts resolve international law disputes. In the United States, for example, skepticism about foreign court interpretations of international law trace back to the period of the Napoleonic Wars and the decisions of British Admiralty courts affecting U.S. neutral shipping. The Sabbatino decision rested on just this concern, applying it, self-consciously, even to U.S. courts. In any case, international law has flourished in many countries even without any form of judicial enforcement. Both here and abroad, domestic courts have rarely played a dominant role in enforcing international law obligations. (The sui generis case of the EU is an exception, of course, but an exception made possible, among other things, only because of the shadow cast by the ECJ’s compulsory jurisdiction.) In this nation, as in many others, whether as a result of various kinds of justiciability doctrines or because many international law disputes do not yield plaintiffs willing to bring their disputes to domestic courts, international law is most often enforced by the political branches without involvement by the judiciary. Therefore, although we agree that judicial enforcement is a matter of importance in some contexts, we think it is a mistake to suggest, as a general proposition, that the “truly bind[ing] character of international law” depends on its availability in all cases.

But happily conceding that judicial enforcement will sometimes be important in enhancing the reliability of U.S. treaty commitments, we nevertheless question Oona’s claim that it is easier to provide for such enforcement by using CEAs as opposed to treaties. The whole question of judicial enforcement of treaty obligations in the United States involves complexities and uncertainties that we will not try to resolve here. It is clear, however, that for many, if not most treaty commitments, the President and Senate—depending upon, inter alia, the treaty language, existing statutory provisions, and the context in which a treaty claim is raised (e.g., as the basis for a cause of action or as a defense in a habeas or criminal proceeding)—have constitutional authority, without the involvement of the House, to provide for judicial enforceability. And, indeed, throughout U.S. history courts have frequently enforced treaty commitments even in the absence of legislation.

In the relatively small number of instances where this is not the case, Oona’s claim is potentially more persuasive. As she observes, in the case of a CEA the necessary implementing legislation can be included in the same enactment by which Congress authorizes or approves the agreement itself—thereby necessitating only a one-step, rather than a two-step, process. Of course, that this can be does not mean that it will be done, and recent experience with, for example, human rights treaties, suggests that the problem is not one of institutional misalignment but instead of political will. Even had these agreements been submitted as CEAs, it is doubtful that Congress would have specifically provided for judicial enforcement—as, indeed, it has not, at least as to private enforcement, in the case of NAFTA and the WTO. Be that as it may, however, the important point is that the added burden of the two-step process only exists in some cases and, therefore, cannot be a strong ground for an argument for the presumptive superiority of the CEA over the treaty. The CEA is superior in this respect, at most, in those unusual cases where the President and Senate are constitutionally prevented from providing for judicial enforceability.

2. Professor Hathaway’s second and more central claim is that it is easier to prevent executive withdrawal from CEAs than from treaties. We are not persuaded, however, that there is a meaningful difference in the two models when it comes to restricting withdrawal. Oona concedes, at least arguendo, that the President has unilateral authority to withdraw the United States both from treaties and from congressional-executive agreements, in accord with the terms of the agreements themselves and background rules of international law. She likewise concedes (see note 284) that both the Senate in giving consent to a treaty, and Congress in adopting a joint resolution approving an international agreement, can provide that their consent/approval is conditioned on restricting the President’s withdrawal power, such as by requiring that withdrawal be effected only by congressional resolution presented to the President. So where is the difference?

Oona suggests that the difference might lie, not in how the President can be limited before a withdrawal, but instead in what happens after a withdrawal: she argues that whereas when the President terminates a self-executing treaty, that treaty’s status as domestic law under the Supremacy Clause immediately ceases, legislation implementing a congressional-executive agreement can, by contrast, survive the President’s termination of the agreement.

This theory is intriguing, but ultimately unconvincing. As an historical matter, Congress in fact has not generally enacted the substantive provisions of CEAs into domestic law. More often, its joint resolution merely authorizes the President to conclude a particular agreement, or approves an agreement he has already negotiated. Such authorization itself is no moment, however, once the underlying agreement is undone and, thus, it has virtually no effect in most cases of withdrawal.

More importantly, even legislation implementing a pact will ordinarily be dependent on the ongoing validity of the agreement under international law. In the absence of clear congressional language to the contrary, there is simply no reason to think that the legislation will outlast the international obligation, not because the President has repealed or violated the legislation (something he may not constitutionally do), but because the legislation no longer serves the purpose for which it was enacted: Once the international agreement is denounced, the implementing legislation will become defunct of its own accord. (Notably, this is equally true of legislation implementing a so-called non-self-executing treaty.) Does Oona believe, for example, that the provisions of the NAFTA implementing legislation dealing with dispute resolution panels (or, for that matter, any other portion of the implementing legislation) would survive a presidential termination of the agreement?

It is here that Oona makes her most striking suggestion—that CEA legislation might not only authorize an international agreement, but also commit the United States to abide by the terms of the agreement, as a matter of substantive domestic law, even where the agreement itself is not in effect: that the enactment might “specif[y] a course of action by the United States,” such as protecting particular human rights or observing particular environmental standards” (page 198 & n.291), and that this substantive obligation would not be dependent on the continuing existence of the international agreement.

This does not appear to be an argument in favor of using CEAs, as such—it is, instead, an argument for the enactment of substantive statutes that are equivalent to agreements the President has negotiated, only without the (potential) expiration date. Notably, Congress could enact such a substantive law regardless of whether the parallel agreement is a treaty subject to Senate ratification, or a CEA. But more to the point, we very much doubt that either of the political branches would ever consider such a practice in either case. If they were, however, so motivated, the far more sensible approach would be simply to require, as Oona concedes they may, that the President may terminate an agreement only with a supporting congressional resolution presented to the President.

Finally, even if Congress were to prescribe that its substantive legislation—whether for a treaty or a congressional-executive agreement—shall survive a presidential termination of the underlying agreement, foreign states are not apt to view the continuing validity of the legislation as evidence that the United States is a more reliable treaty partner. The whole point of making treaties, as opposed to engaging in parallel acts of legislation, is to create a binding international law obligation on both parties to enact and retain the relevant legislation. If the President formally withdraws from a treaty commitment, the former treaty partner will view the United States as unreliable, in Oona’s sense, regardless of whether Congress in the meantime continues ex gratia to keep in place legislation that is consistent with the (former) treaty obligations.

3. One final point, about the feasibility of Professor Hathaway’s proposal: Let’s say Oona were right and we are wrong–that CEAs can, in fact, more effectively constrain the Executive branch by (i) providing judicial oversight and enforcement of international obligations and/or (ii) by limiting the circumstances under which the President can withdraw the U.S. from agreements, either formally or in effect. The especially odd thing about such arguments is that Oona is addressing them to the Executive branch. Her article is a plea to the Executive branch that it should, as a matter of practice, choose to use the mechanism for concluding international agreements that, in her view, would most constrain the President’s discretion in future implementation of, and withdrawal from, such agreements. Why is there any reason to think that the Executive branch would embrace such a self-restricting proposal? To the extent the Executive branch does prefer CEAs, the more plausible hypothesis is that it does so because it finds it easier to obtain consent to agreements it has negotiated by going to Congress than by submitting them to the Senate where the minority veto still looms large.

Oona further concedes that the Senate’s cooperation would be necessary to the realization of her proposal. Yet, she seems to underestimate the degree of resistance that is likely to come from that quarter. There is much history, going back to the late 1960s—the National Commitments Resolution, various failed legislative proposals to deal with executive agreements, the Senate’s failure to give consent to the Vienna Treaty on the Law of Treaties, and so on—suggesting that the Senate and the House do not see eye to eye on this problem and that the Senate’s acquiescence in the CEA mechanism therefore has its limits as a practical political matter. However normatively attractive the idea of phasing out the treaty may be, Professor Hathaway has not yet fully explained how that is likely to come about.

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.

Too Quick to Dismiss the Founders’ Concerns

by David Bowker

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 analysis of the Founding events and question whether the historical context can be so easily dismissed as having “little or no continuing significance.” According to Professor Hathaway, the decision to “place responsibility for concluding treaties in the hands of the President and the Senate alone” rested on two “central reasons”: (1) “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”; and (2) “it was seen as a way to keep the federal government from bargaining away regional interests.” Professor Hathaway concludes that these rationales “are entirely products of a particular time and set of circumstances that no longer hold.”

Although I don’t profess to be a constitutional historian, it seems this analysis may fall short in at least two respects. First, it oversimplifies the history of the Treaty Clause by failing to consider several important historical factors at the Founding (…understanding that such simplification may be an unavoidable cost of writing a piece with such breadth and depth on comparative and other issues). Second, it underestimates the ongoing significance of such historical concerns.

With regard to the first point, there were various other factors underlying the deal that was struck in the Treaty Clause. For example, some Founders were keen to limit the power of the House, especially in matters of economics and foreign policy, where popular sentiment might regularly lie at odds with the long term interests of the nation, as perceived by the “upper” house and the educated elite. Some Founders were equally determined to limit the ability of the President to enter into alliances and other foreign “entanglements” that might embroil the nation in the intractable feuds and squabbles of the Old World. Conversely, still others were concerned about the problem that the new nation lacked credibility among the colonial superpowers because – as Professor Hathaway recognizes – it seemed “incapable of observing treaty obligations.” There are doubtless as many additional concerns as there were delegates to the Convention.

With regard to the second point, although the times have changed, surely, at least some of these issues remain relevant and important today. Take, for example, the credibility problem. Today, the U.S. is seen as having a credibility gap with regard to international law, due in part to its unwillingness or inability to adhere to its international commitments. To make easier the process of entering into such commitments – or, conversely, to equate the treaty commitment with less formal, less binding executive commitments – may exacerbate the problem by increasing the perception that U.S. commitments rise and fall with the four-year presidential election cycle.

Finally, what underlies the assumptions that “democratic legitimacy” and bureaucratic efficiency are virtues in the context of international agreements? Wasn’t the Treaty Clause intended in part to insulate our international commitments from the whims of a popular majority? (See, e.g., the Geneva Convention debate, today.) And why is bureaucratic efficiency in the formation and proliferation of international commitments a positive development in a nation founded on the notion that foreign entanglements may threaten domestic liberty and undermine sovereignty?

Missouri v. Holland and Treaties’ End

by Curtis Bradley

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 the production of goods (as illustrated by the medical marijuana case, Gonzales v. Raich), they have been enforced in some prominent modern cases, including in United States v. Lopez (disallowing federal regulation of possession of handguns near schools), Boerne v. Flores (disallowing federal regulation of local zoning), and United States v. Morrison (disallowing federal regulation of intrastate violence against women).

One of the strongest arguments for the holding in Missouri v. Holland is that the supermajority senatorial consent process specified in Article II provides enough political process protection for federalism, such that judicial enforcement of federalism is not needed in this context. Defenders of Holland also point to the practice of the Senate in either blocking some treaties thought to be particularly intrusive on federalism, or in attaching federalism-protective reservations, understandings, and declarations to its consent to treaties, as proof that the senatorial consent process does in fact protect state interests. This political process line of argumentation is unavailable, however, for congressional-executive agreements, which follow the same domestic process as is used for statutes. A number of supporters of congressional-executive agreements have therefore concluded that they do not receive the benefit of Missouri v. Holland, and this is also Oona’s conclusion.

Because of this, Oona pulls back from calling for treaties’ end, and only calls for their partial end. She states that, “[i]n contrast with Article II treaties, congressional-executive agreements cannot exceed the bounds placed by the Constitution on congressional authority” and that therefore “[w]ere there an international agreement that required the federal government to exercise powers beyond those granted to Congress, it could (and should) be ratified through the Treaty Clause just as it would be today.” This is a perfectly reasonable concession, but it seems to me that Oona probably underestimates the extent to which this issue will arise, especially in the area of human rights law. To take just one example, is it really clear that Congress could simply enact all of the local family law provisions in the Convention on the Rights of the Child?

Oona also appears to assume that we will know in advance which treaties will exceed Congress’s authority, and that we can channel those (allegedly very rare) treaties into the Article II process and the rest into the congressional-executive agreement process. The bounds of Congress’s Article I authority, however, are notoriously unclear, and much will depend on how particular treaty provisions are interpreted and applied. As a result, her concession might actually provide support for a categorical approach to the issue whereby certain types of agreements likely to raise federalism issues (e.g., human rights agreements) are presumptively channeled to the Senate to foster constitutional avoidance. (Incidentally, I agree with other posts that have expressed the view that this channeling is going to continue anyway since we now have a political equilibrium for human rights agreements that is unlikely to be disturbed by academic grumbling about the irrationality of our constitutional practice.)

It seems to me that a more fundamental objection to Oona’s federalism concession, however, is that there is tension between her democracy-oriented defense of congressional-executive agreements and her support of Missouri v. Holland. She rightly observes that it is more democratic to have a majority of both houses of Congress decide on our international commitments than to give this authority solely to a supermajority of the Senate. Yet, if we should be concerned about democracy with respect to the making of international commitments, shouldn’t we be at least as concerned about democracy with respect to the making of domestic law? Nevertheless, Oona is perfectly comfortable giving a supermajority of the Senate more domestic legislative power than a majority of two houses of Congress, pursuant to Holland. (A non-self-executing treaty will require that the House of Representatives take part in domestic implementation, but Oona does not appear to condition her support of Holland on non-self-execution. In any event, even when the treaty is non-self-executing, the House may feel constrained to enact implementing legislation to avoid a breach of the agreement.) As multilateral treatymaking becomes increasingly pervasive and increasingly overlaps with domestic regulation, this democracy issue will only continue to grow. If we are to have treaties’ end, it may also be time for Holland’s end.

Recognizing the Complexity in Comparative Analysis of National Treaty Law and Practice

by Duncan Hollis

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 of the most interesting discussion, no doubt, involves the historical and normative inquiries, but I wanted to say a word about the comparative issue Chris initially raised before we get too far down either of those other roads.

In responding to Chris’s questions about the utility of comparative analysis to her argument, Oona cites her own research to suggest that the United States is an outlier in terms of its Senate advice and consent process. Although I’d agree with her contention that the United States approach is relatively unique, I don’t agree that it follows that the United States must be viewed as operating inconsistently with how some majority of other states approach questions of legislative approval for treaty-making. My own research on the topic suggests that, although virtually all states require some form of legislative approach for some treaties, the diversity of approaches makes it difficult to create a uniform spectrum on one end of which the United States lies.

For starters, Oona suggests that Tajikistan and the United States are “the only countries in the world that provide for less involvement by a part of the legislature in treaty-making than in domestic lawmaking and make the results of this process automatically part of domestic law . . .” (p. 37) But what about Mexico? Under the Mexican Constitution, Mexico’s treaties are concluded by its President with the approval of its Senate alone and, so long as they are not inconsistent with the constitution, operate as the “supreme law of the land.” (see Arts. 89(X) and 133 of the Mexican Constitution). Similarly, Oona suggests that “only five other countries in the world—Algeria, Burundi, Iraq, Philippines, and Poland—require a supermajority vote in their legislature in order for the country to ratify a treaty” (p. 36) But there are other states that do require a supermajority vote, if not for all treaties, than at least for certain ones that implicate core constitutional issues (e.g., Austria, Germany, the Netherlands). States like Austria and Germany, moreover, also alter the respective functions of their legislative bodies for certain types of treaties than the functions they normally apply in considering domestic legislation.

I was also struck by the relative lack of discussion of “commonwealth” states such as the United Kingdom, Canada and India that don’t require legislative approval for treaty formation at all. If one were to try and construct some spectrum of legislative participation, it would seem that these states, not the United States, would have to be the outliers in terms of democratic participation in treaty formation. In truth, however, I think such a spectrum is difficult to create, particularly given that for most states the question is not so much how the legislature approves a treaty, but when it does so. Indeed, the United States is remarkably similar to the majority of states in having a multiplicity of domestic legal processes for forming treaties, only some of which involve the legislature. Some states (e.g., Chile, the Netherlands, South Africa, Switzerland) exempt out certain treaties from legislative approval; many others require approval only for specific categories of treaties (e.g., Egypt, France, Germany, Japan, Russia, Thailand).

Moreover, in focusing on legislative approval of treaties, I fear Oona’s comparative analysis undervalues the non-legislative mechanisms that other states have devised in deciding whether to join a treaty. For example, Switzerland has a relatively robust practice of popular referenda to approve some of its more politically or economically important treaties (as does France, albeit to a much more limited extent). Other states involve their judiciary, requiring a Constitutional Court or its equivalent to opine on a treaty’s constitutionality in advance of that state joining the treaty. Still other states—notably Canada and Germany—have mechanisms that incorporate the opinions of sub-national actors as part of the treaty-formation or implementation process. Thus, if you’re going to use a comparative lens to advocate for a more democratic treaty-making process, I’d think the paper needs to acknowledge the diversity not only among, but within, most states in how they go about joining treaties.

Finally, notwithstanding the value of Oona’s comparative research on its own terms, I wonder about its utility in the current context. It seems strange to me to rely only on foreign constitutions (and/or basic laws) in making a comparative analysis here. After all, if one did that for the United States, the congressional-executive agreement process at the heart of this paper would be left out. Similarly, I’m concerned that painting the United States as an outlier solely based on what foreign constitutions say may miss glosses on those texts by statutes, regulations or state practice. For example, although India’s constitution suggests that treaty-formation will require an act of Parliament (which I suspect is why Oona lists it in Annex C as requring regular legislative approval), in fact, the Parliament never passed the requisite law giving effect to this power. As a result, notwithstanding the constitutional text, in India the Executive continues to make treaties unfettered by any legislative approval requirement. Of course, the actual practice may cut the other way as well–for example, even as states like the United Kingdom say that they need no legislative approval to enter into a treaty, they have a practice of getting legislation if the treaty requires a change or expansion of existing domestic law in order to implement it.

In sum, I welcome Oona’s effort to try and place the U.S approach to treaty-making in a comparative context. At the same time, however, I worry that in its present effort to create hard categories that seek to distinguish how other states operate from the Article II process, the paper may give the false impression that other states lack some of the same multi-faceted features that exist in U.S. treaty law and practice. Of course, this critique doesn’t undercut the value of her overall inquiry, but it does suggest a comparative analysis may not do exactly what her current draft suggests it does.