Human Rights and International Lawmaking

by Oona Hathaway

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 had pursued since the Civil War in favor of a policy built on reciprocal congressional-executive agreements on trade. Meanwhile, opposition to human rights agreements motivated significant opposition to treaties especially in the second half of the century. In particular, in the 1950s, a series of proposed amendments to the Constitution (usually referred to as “the Bricker Amendment”) aimed to prevent the United States from entering international human rights agreements that some feared would be used to challenge segregation and Jim Crow. Roger asks if this concern is still relevant. I think it is in two ways.

First, past practice influences present practice. The controversy over the Bricker Amendment ended in a “compromise” in which the amendment was defeated at the cost of future human rights agreements, which would thereafter be concluded only as Article II treaties that had been rendered almost entirely unenforceable through reservations, understandings, and declarations (RUDs)–that is, if they were ratified at all. That continues to be true even today, both because of the natural force of precedent and because of the specific incorporation of past practice into the Circular 175 Procedure followed by the State Department in deciding which instrument to use for an agreement.

Second, there remain concerns among many of those who resist ratifying international human rights treaties that the treaties will bring about internal changes in the United States. This was the central line of attack on the Convention to Eliminate All Forms of Discrimination Against Women at the hearings before the Senate Foreign Relations Committee as recently as June 13, 2002. Congresswoman Davis, for example, stated that we should not “be eager to have our laws and social structures pronounced upon by an international committee made up in part by representatives of nations with notoriously poor human rights records” while at the same time echoing concerns raised by others that ratifying the treaty might lead to calls to decriminalize prostitution and end Mothers’ Day. Those concerns were voiced in spite of the fact that the RUDs would have almost certainly made direct enforcement of the treaty in U.S. courts impossible.

Roger asks what is stopping the executive and legislative branches from proposing agreements that ordinary would have proceeded as Article II treaties as congressional-executive agreements instead. I think that the reticence is due in part to a misreading of the law (that I am trying to correct in this article) and in part to a commitment to precedent (that I am arguing is misplaced). I expect it is also due in part to concerns about how such agreements might be received by the Senate (which, after all, has to approve congressional-executive agreements as well). But that, too, is surmountable. In the past, the Senate has been open to greater use of congressional-executive agreements even at the expense of its unique role in the Article II treaty process. A committed President and congressional leaders could lead the Senate to take the next step.

Oona Hathaway, Constitutional Actor

by Peter Spiro

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 is, as a mechanical matter, breathtakingly simple. It would require no changes to existing law or regulations.”

But the current subject-matter divide is arguably of constitutional proportions. That is, the practice may reflect existing constitutional norms. As such, they will be much less readily dislodged than the piece seems to imply.

The arms control context best highlights the possible obstacles here. There has in fact been “overt resistance” to the trend away from article II. The Senate has attached declarations to all major arms control agreements since 1972 expressing its “intent to approve international agreements [relating to arms control] only pursuant to the Treaty Power as set forth in Article II.” President Clinton reversed a decision to submit the 1997 CFE Flank Agreement as a congressional-executive agreement after facing pushback from the Senate. You can bet that anti-internationalists would make an issue out of instrument form if a human rights agremeent or the LOST were submitted as a CEA.

In other words, it’s not clear that the Senate will go quietly into the Hathaway night. It has the weight of longstanding practices behind it, and that will make the reform strategy a longer slog than one might think.

Which is not at all to question Oona’s other arguments here. There may be a constitutional practice relating to choice of form, but that doesn’t mean that it makes any sense. To the extent it doesn’t, there will opportunities to chip further away at treaties’ domain, in a chain of constitutional increments. (A recent bill introduced by Senator Clinton is instructive in this regard: it would permit the conclusion of the Iraq security agreement to take the form of a CEA.)

As part of that process, academic work can make a difference, here especially in the absence of judicial pronouncements. This article will become part of the mix that affects constitutional outcomes. Which way it affects outcomes might not be as clear as at first glance, though. On the one hand, the empirical analysis points to the triumph of CEAs as something of a foregone conclusion (especially to the extent that it succeeds in rebutting the “separate spheres” take on the practice). On the other hand, it may make the guardians of senatorial prerogative all the more vigilant in protecting their institutional powers.

Operationalizing Treaties’ End

by Roger Alford

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 quibble and a question. I quibble with your explanation as to why human rights treaties have been challenged with much greater force than trade agreements. You argue that human rights were resisted by Senator Bricker and company because of fears they would bring about internal change. That may have been true a generation ago. But in the post-Civil Rights era, I would think that the concern about human rights treaties is not so much that these agreements would bring about internal change, but rather that they are largely superfluous. There is little political incentive to sign on to treaties that would simply replicate constitutional and statutory guarantees. For example, does CEDAW or the Convention on the Rights of the Child really add that much to existing state and federal law? I doubt it, especially given that any such ratification would be qualified with RUDs. Bilateral and multilateral trade agreements, by contrast, are so popular because they offer tremendous economic benefits that can only be achieved by reciprocal commitments to lower trade barriers.

My question concerns your intriguing proposal for “informal reform strategy” in which existing Article II treaties would be withdrawn and resubmitted to both houses of Congress as CEAs. You make a good point that Article II treaties are captured by extremists on the left and right in ways that CEAs are not. You state that “the supermajority requirement means that treaties must gain the support of senators that are twice as conservative or liberal as the so-called median voter in the Senate.” (p. 175). You further state that “there is nothing preventing the resubmission of the many stalled treaties still before the Senate as congressional-executive agreements, including, for example, the Vienna Convention the Law of Treaties, [CEDAW], or even the U.N. Convention on the Law of the Sea….” (p. 217)

So my question is, what is stopping the executive and legislative branches from adopting this strategy? Is it formalistic or pragmatic? If it is the latter, why not create incentives encouraging both branches to embrace the CEA approach? As you intimate on page 216, it would seem that one could expand fast track authority to all new international agreements. Every time Congress gives the Executive fast track authority, it does so on the understanding that it will be intimately involved in the treaty-making process. That creates benefits to Congress in exchange for the cost of an up-or-down vote without amendments. It also creates huge benefits to the Executive branch, not only in how it negotiates with other countries, but also in knowing that the agreement will be presented to Congress as a CEA without amendments or supermajority voting. Another option would be an Executive “fast track request” for negotiating authority of a specific treaty outside the trade context, in which the Executive branch would seek fast track authority before it ever began negotiations with other countries. You spend precious little time fleshing out your proposal for informal reform, and I would be curious what you think are the obstacles.

A Decent Respect to the Opinions of Mankind

by Catherine Powell

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 that they should declare the causes which impel them to the separation.” At first blush, it may seem counterintuitive that the American Declaration reflected a concern with opinions or practices beyond our borders, at the very moment this small band of patriots was declaring its independence. At the same time, American independence occurred within a context of the new country’s inherent interdependence with the rest of the world – a recognition present even at the Founding. In other words, the only way in which the U.S. could envision itself as “a shining city or a hill,” is if it recognized the “valleys and plains” in its midst. Therefore, as Vicki Jackson perceptively notes, comparativism is a key component toward alternatively appreciating or criticizing American exceptionalism.

This then brings me to a central puzzle Professor Hathaway confronts in her article. Why is it that the international law making in the U.S. has flourished and expanded in certain fields – for example trade – even while it has stagnated in other areas – such as human rights? (Note that this is a separate question from whether ratification of human rights treaties leads to an improved human rights record — a topic Hathaway has addressed elsewhere). Many observers approach the gap between the flourishing of international lawmaking in trade and its stagnation in human rights as a question of substance rather than as a question of process. It turns out, Hathaway tells us, that this gap reflects the fact that the process by which international law is made in the trade area is more likely to be by congressional executive agreement (i.e., NAFTA) while the process by which international law is made in the human rights area is exclusively by treaty (i.e., the Genocide Convention).

Along the lines of Martin Lederman and David Golove in their post, I agree with Hathaway that by including the House of Representatives and dropping the supermajority requirement for the Senate, the process by which congressional executive agreements are made is more democratically legitimate than the treaty process. This is not to say that treaties are democratically illegitimate, but, as I have explored elsewhere, the treaty process has its deficits. At a moment when the public is becoming more directly involved in innovative and exciting ways at an international level (whether in the context of demonstrations at international trade negotiations or more formal participation as nongovernmental observers in United Nations (UN) human rights treaty bodies), by contrast at the national level, the public is, at best, less involved or even aware of treaties, and, at worst, skeptical of the efficacy and legitimacy of international institutions that monitor and support enforcement of treaties. Indeed, in the area of human rights, an important new public opinion poll by Opportunity Agenda demonstrates that while Americans are extremely open to the language and values of human rights, Americans are more reticent about international institutions that monitor and enforce human rights treaties. Perhaps then it’s not surprising that while over a hundred nongovernmental organizations went to Geneva last month to participate in the U.S. compliance hearing before the UN Committee on the Elimination of Racial Discrimination (CERD), Senator Barack Obama did not mention CERD in his groundbreaking speech on race earlier in the week.

In a later post, I’ll return to the role race has played in the development of U.S. treaty practice– an issue on which Hathaway provides important new insights.

Democracy and Treaties

by Oona Hathaway

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” of two-thirds of the Senate. Congressional-executive agreements, by contrast are made by the President acting in concert with majorities of both houses of Congress. Unlike the process for making congressional-executive agreements, then, the Article II process excludes the House of Representatives. Critics of international law frequently contend that international law is undemocratic, often basing their complaints on this exclusionary process. The assumption behind the complaint is often that the U.S. process is also the international norm. As discussed earlier, the Treaty Clause process is, in fact, extremely unusual: only Tajikistan and the United States have a lower level of legislative involvement in treaty-making than in ordinary legislation and make the results of this process automatically part of domestic law in more than a few confined areas of international law. The fault, then, if there is one, is not that of international law but of the United States’ distinctive method of making that law.

The Founders designed the Treaty Clause as they did not because of a belief that a supermajority vote in the Senate (and exclusion of the House) would somehow be more democratic. The Clause was instead the product of an almost immediately frustrated expectation that the Senate would play a role as a confidential council of advisors to the President in treaty-making, as well as the very distinct historical context in which the Treaty Clause was formed (related to a desire among the southern states to protect their rights to free navigation of the Mississippi).

As I also discuss in the article, the same lawmaking process that sets too low a bar in the House sets an excessively high bar (in my view) in the Senate. The two-thirds rule imposed by Article II is among the highest imposed in the Constitution. There are substantial, and frequently unacknowledged, costs to this exceptionally high requirement. The supermajority requirement imposed by the Treaty Clause means that treaties that enjoy the support of a strong majority of the population and its political representatives may still not be approved.

This is all the more true because the Senate is extremely malapportioned–far more so today than it was even a century ago. Today, senators representing only about eight percent of the country’s population can halt a treaty. Hence achieving the support of a two-thirds majority can require playing to the polarized extremes of modern American politics: If we array the senators in the 109th Congress from most liberal to most conservative according to a widely used measure of ideological position, we see that the sixty-seventh senator was just over twice as conservative as the fifty-first senator. In the reverse dimension, the sixty-seventh senator was also just over twice as liberal as the fifty-first. In other words, the supermajority requirement means treaties must gain the support of (and hence can be vetoed by) senators that are twice as conservative or liberal as the so-called median voter in the Senate.

I acknowledge that there are cases in which a supermajority requirement of this form can be democracy-enhancing, because it requires a broader consensus to develop before action can be taken. Judith Resnik, for example, has persuasively argued that a supermajority is democracy-promoting in the context of the selection of Article III judges. Ratifying a treaty is fundamentally different, however, from approving judges. Most notably, if a particular nominated judge is not approved, another one who can command broader support will almost certainly be nominated in his or her stead. By contrast, if a treaty is rejected, there will be no international agreement (unless, of course, it is concluded by congressional-executive agreement, as I advocate).

Reflections on Treaties’ End

by David Golove and Marty Lederman

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 international agreements. Hathaway therefore proposes that the political branches should presumptively use the mechanism of statutory approval, rather than treaty advice and consent, in order to effect almost all international agreements. (Treaties would, under Hathaway’s proposal, be used only where Congress lacks any Article I power to enact the substantive laws that the agreement requires.)

We are generally sympathetic with Professor Hathaway’s project, and applaud her important contribution to the ongoing debate over the relative constitutionality and virtues of CEAs and treaties. We are skeptical, however, about some of the crucial arguments Hathaway makes in support of her central claim that CEAs create more reliable U.S. commitments than treaties. We will address those arguments in greater detail in subsequent posts. In this initial post, we will focus on those areas where we agree with Hathaway (at least in part) with respect to the desirability of CEAs.

In Part III of her article, Professor Hathaway identifies several reasons why, in her view, the political branches should in almost all cases presumptively choose to use statutes, rather than the Senate’s treaty-consent mechanism, in order to commit the United States to international agreements. We agree with Hathaway that CEAs offer a superior alternative to the treaty in at least two important respects.

First, as one of us (Golove) developed with Bruce Ackerman at more length some years ago, concluding agreements by use of a CEA is the more democratic alternative. This is true in part due to two simple facts: A CEA requires the assent of the more democratic chamber of Congress, and it conditions approval on bare majorities rather than creating a minority veto. There are, however, not insubstantial counterarguments about the democratic value of supermajoritarian rules such as the requirement of a two-thirds vote of the Senate for treaties. More importantly, the argument from democracy is based on a qualitative assessment of the impact of the Treaty Clause’s two-thirds requirement on the particular political institutions created by the Constitution (as well as the unexpected developments with respect to political parties that emerged after its adoption), and, most importantly, on the long, concrete historical experience the nation has had with the veto that can be wielded by one-third of Senators, representing a very tiny percentage of the nation. Indeed, it was that very history – and the terrible dilemmas that it created – that led to the development of the modern congressional-executive agreement.

The second, and more intriguing though ultimately less important, respect in which the congressional-executive agreement is superior to the treaty – which Professor Hathaway also discusses – is that it eliminates a potentially problematic anomaly created by the constitutionally prescribed Senate advice and consent procedure in some cases. The anomaly is that the institutions that make treaties in the first instance (the President and Senate) are differently constituted than the institutions that might be responsible for implementing them and maintaining adherence to them over time (namely, both houses of Congress and the President). If, for example, a treaty requires new appropriations, or the establishment of a new federal criminal law, the United States cannot fulfill its obligations without the House’s involvement. This disjuncture introduces the potential for one set of institutions (President/Senate) to bind us internationally to obligations that another institution (the House), after the fact, may prefer to avoid. By aligning the institutions that decide to make an agreement in the first instance with those that must implement and maintain adherence to them over time, the CEA option avoids potential structural pressures that may lead to defaults on international treaty obligations, thereby making them more reliable in the sense that Professor Hathaway stresses: a House of Representatives that agrees to authorize or approve such an agreement will more than likely also agree to take the steps necessary to ensure compliance with it. Indeed, as Professor Hathaway notes, it is possible, and desirable, for the Congress to take both steps simultaneously, i.e., for a single enactment to both approve the compact and to provide for its implementation (e.g., by making appropriations). This sort of “one-stop shopping,” in Hathaway’s words, ensures our negotiating partners that the agreement we are about to make will (almost surely) not be undercut by subsequent House recalcitrance.

Nevertheless, this problem, and the advantage of using CEAs in order to avoid it, is much less significant than it appears at first, for at least two reasons. First, the President and Senate early on recognized that the problem could be solved, even with respect to treaties, simply by seeking the adoption of implementing legislation in advance of ratification, or by making U.S. obligations under a ratified treaty contingent on the adoption of the necessary legislation. That practice simply makes the misalignment disappear. This “solution,” however, is not ideal, because it exacerbates the democracy problem: It becomes necessary not only to obtain two-thirds consent in the Senate, which gives a relatively small minority an effective veto over treaties, but also to obtain the consent of a majority of the House. That seems in strong tension with the constitutional design, and, more importantly, it ratchets up the difficulty of making treaties an extra notch, a development that even more dramatically tips the playing field against effective treaty-making.

More significantly, however, the problem does not have to arise at all with respect to most international agreements, because the participation of the House of Representatives is simply unnecessary from a constitutional point of view in most instances. It is true, of course, that there are some areas in which the Constitution requires House involvement, such as where agreements compel appropriations or the enactment of criminal laws. But those areas are very limited, and thus the concern Professor Hathaway raises is relatively less significant. It is true that the House has historically sought to claim a required role over more territory, including treaty provisions concerning tariffs, but most leading authorities have not recognized that claim as constitutionally viable. In any case, moreover, to the extent that the House has been able to insist on that claim as a political matter in certain narrow areas, such as with respect to trade agreements, the CEA has, in fact, tended to supersede the treaty form in practice. That makes sense, but it does not amount to a general reason for abandoning the treaty form in other areas in which there is no constitutional obligation to involve the House.

* * * *

In her article, Professor Hathaway focuses primarily on two other ways in which CEAs are said to establish more reliable commitments than treaties: (i) that they can provide for judicial enforcement; and (ii) that they can limit the circumstances of unilateral executive withdrawal. We are much more skeptical of these claims, principally because it is not clear that such commitments cannot be just as easily made in the context of treaties. We will address those arguments in our next post.

The Value of Comparative Research

by Oona Hathaway

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 countries that have a constitution (or basic laws that essentially operate as one). When I examined the initial data this past summer, I was surprised to see that the United States was such an outlier. This struck me as an interesting puzzle: Why and how did the United States come to have such an unusual international lawmaking process?

The comparative research thus 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.

I do not mean to suggest that doing things differently from the rest of the world is in itself wrong or unwise. As I put it in the article, “[t]hat the process for making treaties in the United States is extremely unusual does not mean, of course, that it is necessarily wrong or misguided.” But it does lead 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.

Comparativism and Constitutional Structure

by Chris Borgen

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 her article that I found especially interesting: her use of empirical research into how other states make treaties.

The results of Oona’s comparative research leads to some striking observations:

Only five other countries (Algeria, Burundi, Iraq, the Philippines, and Poland) require a legislative supermajority to ratify a treaty (p.136)

Only twenty-three states (including the U.S.) have different voting requirements for treaties than for domestic legislation (p.137)

The United States is one of only four countries (along with Ethiopia, the Philippines, and Tajikistan) that has less involvement by the legislature in treatymaking than in law making (p. 138)

Only Tajikistan and the United States have a lower level of legislative involvement for treatymaking than for legislation and “make the results of this process automatically part of domestic law in more than a few confined areas of law.” (p.138)

These results are quite persuasive that what the U.S. does is somehow different. But is what the U.S. is doing somehow wrong or unwise? My question, in sum, is what role should comparative analysis play in decisionmaking over whether or not to (continue the) shift from using Article II treaties to congressional-executive agreements? I don’t mean this question as a rehash of the debate over the use of foreign sources in statutory or Constitutional interpretation because what Oona is proposing is not a matter of interpretation, per se, but rather an argument about the function of types of Consitutional decisionmaking, that is, that agreements are a better policy option (more democratic, more effective, etc.) than the Article II treaty option.

But, to what extent is comparativism useful in this? As Oona persuasively argues, the current U.S. practice concerning the use of agreements versus treaties is idiosyncratic and based on the twists and turns of our Constitutional history. But couldn’t the same be said for any of these other examples? Treatymaking in each country is tied to its own history, its own idiosyncrasies. Aren’t how we make laws particularly immune to comparative approaches as they the result of a domestic bargain?(As opposed to, say, using comparativism to define what is a prevailing interpretation of “cruel and unusual punishment”)

So, even if the U.S. is a statistical outlier in how it makes treaties, should this matter?

Treaties’ End

by Oona Hathaway

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 common path is the congressional-executive agreement, now used in virtually every area of international law. Each year, hundreds of congressional-executive agreements on a wide range of international legal topics are enacted by simple majorities in the House and Senate and signed into law by the President outside the traditional Treaty Clause process. (Executive agreements entered into by the President alone—often called sole executive agreements—are also on the rise and involve no formal congressional involvement at all. As Chris Borgen noted in his post, I discussed the proper scope of sole executive agreements in my recent testimony before Congress on the proposed agreement with Iraq on February 8 and March 4.)

In an article forthcoming in the Yale Law Journal, I argue that the days of two-track international lawmaking should come to an end: Nearly every international agreement that is currently made through the Treaty Clause can and should be approved by both houses of Congress as a congressional-executive agreement instead.

My case rests on empirical, cross-national comparative, historical, and policy analyses of the two separate tracks of U.S. international lawmaking. I begin with a broad empirical assessment of the international lawmaking practice of the United States during the last two decades of the twentieth century. I find that there is no overarching logic that explains why some international agreements are concluded through treaties and others through congressional executive agreements. Instead, international lawmaking is haphazardly carved up between the two tracks, with some areas assigned to the Treaty Clause route, others to the congressional-executive agreement route, and many uncomfortably straddling the two.

Using new comparative data I have collected, I also show that the United States is one of only six countries that require a supermajority vote in the legislature in order to ratify a treaty. Even more striking, only one other country—Tajikistan—provides for less involvement by a part of the legislature in treaty-making than in domestic lawmaking and makes the results of that process automatically a part of domestic law.

To explain how the United States came to have such a haphazard and unusual system for making international law, I trace the history of the two tracks of international lawmaking back to the Founding. The current system 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. Rather than guided by clear legal principles, our current bifurcated system is the result of political and historical factors that, in the main, would have little continuing relevance were they not embodied in present practice.

Not only are the reasons for continuing to rely on the Treaty Clause no longer relevant, but the Treaty Clause process is also demonstrably inferior as a matter of U.S. public policy to congressional-executive agreements on nearly all crucial dimensions: ease of use, democratic legitimacy, and strength of the international legal commitments that are created. Thus, I conclude by presenting a vision for the future of international lawmaking in the United States that charts a course toward ending the Treaty Clause for all but a handful of international agreements. By gradually replacing most Article II treaties with congressional-executive agreements, policymakers can make America’s domestic engagement with international law more sensible, more effective, and more democratic.

Opinio Juris Discussion: Oona Hathaway, “Treaties’ End”

by Chris Borgen

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 treatymaking. Entitled Treaties’ End: The Past, Present, and Future of International Lawmaking in the United States (you can download it from here), this is significant scholarship bringing together Constitutional history, comparative law, legal theory, and empirical research. We at Opinio Juris are very happy to host a discussion on this article starting tomorrow.

The implications of how we in the U.S. may constitutionally enter into international agreements has affected issues ranging from the adoption of the UN Charter, the establishment of the World Bank and IMF, and (as analyzed by Bruce Ackerman and David Golove) NAFTA. Ackerman and Hathaway recently co-authored an op-ed concerning the treaty power and President Bush’s attempt to make ongoing security commitments to Iraq via a “Status of Forces Agreement” (or SoFA) that would not face any kind of vote or advice and consent from Congress. Hathaway subsequently testified before Congress on this issue. Her print submission for her February 8 testimony before the House Committee on Foreign Affairs is available here; a video of her testimony is here.

We look forward to a discussion among Hathaway, the regular Opinio Juris bloggers, and guest-commentors, including David Golove (NYU), Catherine Powell (Fordham), and David Bowker (WilmerHale), that will cover not only her article, but related issues such as the proposed Iraq SoFA. And, as always, we encourage comments from our readers.